National Treasury Employees Union and NTEU Chapter 66 (Union) and Department of the Treasury, Internal Revenue Service, Kansas City Service Center, Missouri (Agency)

 



[ v06 p49 ]
06:0049(16)NG
The decision of the Authority follows:


 6 FLRA No. 16
 
 NATIONAL TREASURY EMPLOYEES UNION AND
 NTEU CHAPTER 66
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY, INTERNAL
 REVENUE SERVICE, KANSAS CITY
 SERVICE CENTER, MISSOURI
 Agency
 
                                            Case No. O-NG-162
 
                DECISION AND ORDER ON NEGOTIABILITY APPEAL
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
 U.S.C. 7101 ET SEQ.).
 
                             UNION PROPOSAL I
 
    GUIDELINES BE ESTABLISHED AND DISTRIBUTED TO EMPLOYEES ADVISING THEM
 WHAT SPOT CHECKING
 
    WILL CONSIST OF.
 
                             UNION PROPOSAL II
 
    WORK LEADER BE GIVEN BONUS FOR WORK OVER AND ABOVE WHICH IS REQUIRED
 BY POSITION.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSALS I AND II ARE SUFFICIENTLY
 SPECIFIC AND DELIMITED TO PERMIT THE AUTHORITY TO DETERMINE WHETHER THE
 MATTERS PROPOSED FOR NEGOTIATION ARE WITHIN THE AGENCY'S DUTY TO
 BARGAIN.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSALS I AND II ARE NOT SUFFICIENTLY
 SPECIFIC AND DELIMITED SO AS TO PERMIT THE AUTHORITY TO DETERMINE
 WHETHER THE MATTERS PROPOSED FOR NEGOTIATION ARE WITHIN THE AGENCY'S
 DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 C.F.R. 2424.10 AS AMENDED BY 45
 F.R. 48575), IT IS ORDERED THAT THE UNION'S PETITION FOR REVIEW IS
 HEREBY DISMISSED.
 
    REASONS:  IT APPEARS FROM THE UNION'S PETITION FOR REVIEW THAT THE
 DISPUTED PROPOSALS AROSE FROM DISCUSSIONS CONCERNING A REORGANIZATION IN
 THE BARGAINING UNIT AND A REQUEST SUBMITTED BY THE UNION TO THE AGENCY
 TO NEGOTIATE CONCERNING "DUTIES OF WORKING LEADER POSITIONS IN THE
 COMPLIANCE DIVISION, COLLECTION BRANCH." PURSUANT TO THE AGENCY'S
 REQUEST FOR CLARIFICATION, THE UNION, BOTH IN WRITING AND IN ORAL
 DISCUSSION WITH THE AGENCY, PUT ITS REQUEST INTO FOUR ITEMS DESIGNATED
 PROPOSALS.  FOLLOWING THE AGENCY'S ALLEGATION THAT ALL FOUR ITEMS WERE
 NONNEGOTIABLE, THE UNION FILED THE INSTANT PETITION FOR REVIEW ONLY WITH
 RESPECT TO THE TWO ITEMS DEPICTED ABOVE AS UNION PROPOSALS I AND II.
 
    IN ITS ALLEGATION TO THE UNION OF NONNEGOTIABILITY, THE AGENCY STATED
 GENERALLY THAT THE MATTERS INVOLVED WELL ESTABLISHED PRACTICES WITH
 RESPECT TO THE FUNCTIONING OF WORKING LEADER POSITIONS AND DID NOT
 REPRESENT CHANGES IN PERSONNEL POLICIES, PRACTICES OR PROCEDURES OR
 WORKING CONDITIONS.  SPECIFICALLY, WITH RESPECT TO PROPOSAL I, THE
 AGENCY ADDITIONALLY ASSERTED THAT SINCE THE MATTER APPEARS TO RELATE TO
 MANAGEMENT DETERMINATIONS ABOUT THE METHODS AND MEANS BY WHICH
 OPERATIONS OF THE ORGANIZATION ARE CARRIED OUT, IT THEREFORE IS
 NONNEGOTIABLE.  WITH RESPECT TO PROPOSAL II, THE AGENCY ARGUED THAT
 SINCE THE MATTER WAS ALREADY COVERED BY AN INCENTIVE AWARDS PROGRAM AND
 BY ARTICLE 1 OF THE NEGOTIATED AGREEMENT IN EFFECT, IT WOULD BE
 INAPPROPRIATE TO NEGOTIATE IT.
 
    BASED UPON THE RECORD, IT APPEARS THAT IN SOME MANNER THE PROPOSALS
 RELATE TO THE "WORKING LEADER" POSITION BUT THE LACK OF EXPLANATION IN
 THE RECORD AS TO THE MEANING OF THE LANGUAGE OF THE PROPOSALS PRECLUDES
 THE AUTHORITY FROM DETERMINING WHAT THE UNION'S INTENDED PURPOSE AND
 EFFECT OF THE PROPOSALS WOULD BE.  IN ASSOCIATION OF CIVILIAN
 TECHNICIANS, ALABAMA ACT AND STATE OF ALABAMA NATIONAL GUARD, 2 FLRA NO.
 39(1979), THE AUTHORITY DECIDED, WITH RESPECT TO A QUESTION
 SUBSTANTIALLY IDENTICAL TO THAT PRESENTED HERE, THAT A PETITION WHICH
 DID NOT PRESENT A PROPOSAL SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM
 AND CONTENT AS TO PERMIT THE AUTHORITY TO RENDER A NEGOTIABILITY
 DECISION FAILED TO MEET THE CONDITIONS FOR REVIEW PRESCRIBED IN SECTION
 7117 OF THE STATUTE AND SEC. 2424.1 OF THE AUTHORITY'S RULES.
 SPECIFICALLY, THE AUTHORITY DETERMINED THAT A SUFFICIENTLY SPECIFIC AND
 DELIMITED PROPOSAL IS NECESSARY FOR THE AUTHORITY TO DISCHARGE ITS
 STATUTORY OBLIGATION TO ISSUE A WRITTEN, SPECIFICALLY REASONED DECISION
 ON WHETHER NEGOTIATION OF THE PROPOSAL IN DISPUTE WOULD VIOLATE
 APPLICABLE RULES AND REGULATIONS.  IN THESE CIRCUMSTANCES, NOTING
 SPECIFICALLY THE ABSENCE OF EXPLANATION PROVIDED BY THE UNION HEREIN,
 THE AUTHORITY CONCLUDES, BASED UPON THE REASONS MORE FULLY SET FORTH IN
 ASSOCIATION OF CIVILIAN TECHNICIANS, SUPRA, THAT IT DOES NOT HAVE ENOUGH
 INFORMATION TO MAKE A DECISION AND THEREFORE THE CONDITIONS FOR REVIEW
 OF THE UNION'S APPEAL HEREIN, AS SET FORTH IN SECTION 7117 OF THE
 STATUTE AND SEC. 2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS, HAVE
 NOT BEEN MET.
 
    FURTHER, TO THE EXTENT THAT THIS CASE AROSE OUT OF ALLEGED UNILATERAL
 CHANGES IN WORKING CONDITIONS AND AN AGENCY DEFENSE ESSENTIALLY THAT NO
 CHANGES HAVE OCCURRED, THE PROPER FORUM IN WHICH TO RAISE THESE ISSUES
 IS NOT A NEGOTIABILITY APPEAL, BUT RATHER AN UNFAIR LABOR PRACTICE
 PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE.  IN THIS REGARD,
 RESOLUTION OF THE DISPUTE IS DEPENDENT UPON THE RESOLUTION OF FACTUAL
 ISSUES RELATED TO THE PARTIES' CONDUCT.  SUCH FACTUAL DETERMINATIONS CAN
 BEST BE ACCOMPLISHED THROUGH USE OF THE INVESTIGATORY AND FORMAL HEARING
 PROCEDURES SET FORTH IN PART 2423 OF THE AUTHORITY'S RULES AND
 REGULATIONS WHI