National Treasury Employees Union (Union) and Department of the Treasury, Internal Revenue Service (Agency)

 



[ v06 p508 ]
06:0508(97)NG
The decision of the Authority follows:


 6 FLRA No. 97
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE
 Agency
 
                                            Case No. O-NG-71
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    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.).  THE ISSUE PRESENTED IS THE NEGOTIABILITY OF SEVEN UNION
 PROPOSALS.
 
                             UNION PROPOSAL I
 
    ARTICLE 12, SECTION 10, TRAINING
 
    EMPLOYEES IN THE GS-905 CLASSIFICATION WHO ARE, UNDER APPLICABLE
 STATE LAW, REQUIRED TO
 
    ATTEND CONTINUING LEGAL EDUCATION COURSES IN ORDER TO BE LICENSED TO
 PRACTICE LAW WITHIN THE
 
    MEANING OF FEDERAL PERSONNEL MANUAL 213, APPENDIX A, A-2(A), WILL BE
 REIMBURSED FOR ALL COSTS
 
    THUS INCURRED.  THIS SHALL NOT APPLY TO EXPENSES ASSOCIATED ONLY WITH
 MEMBERSHIP IN A STATE
 
    BAR ASSOCIATION.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL I VIOLATES FEDERAL LAW AND IS
 THEREFORE NOT WITHIN THE DUTY TO BARGAIN AS SET FORTH IN SECTION
 7117(A)(1) OF THE STATUTE, /1/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE DUTY TO BARGAIN DOES NOT EXTEND TO UNION
 PROPOSAL I UNDER SECTION 7117(A)(1) OF THE STATUTE TO THE EXTENT THAT
 THE PROPOSAL WOULD REQUIRE THE AGENCY, WITHOUT REGARD TO APPLICABLE
 LIMITATIONS IMPOSED BY 5 U.S.C.CHAPTER 41, TO REIMBURSE ITS ATTORNEYS
 FOR ALL COSTS INCURRED IN ATTENDING CERTAIN CONTINUING LEGAL EDUCATION
 COURSES.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
 PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION PROPOSAL I
 BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  THE PROPOSAL WOULD APPLY TO BARGAINING UNIT EMPLOYEES WHO
 ARE ATTORNEYS SPECIALIZING IN THE FIELD OF ESTATE AND GIFT TAXATION.
 ADMISSION TO THE BAR IS A PRECONDITION OF THEIR EMPLOYMENT BY THE
 INTERNAL REVENUE SERVICE AS ATTORNEYS AND MAINTENANCE OF THEIR BAR
 MEMBERSHIP IS NECESSARY FOR THEIR CONTINUED EMPLOYMENT IN SUCH
 POSITIONS.  SOME JURISDICTIONS REQUIRE ATTORNEYS TO PURSUE COURSES OF
 CONTINUING LEGAL EDUCATION IN ORDER TO MAINTAIN THEIR STATUS AS MEMBERS
 OF THE BAR.  THE COURSES OFFERED FOR THAT PURPOSE MAY OR MAY NOT RELATE
 DIRECTLY TO THE WORK OF THE AGENCY'S ATTORNEY'S.  UNION PROPOSAL I SEEKS
 REIMBURSEMENT FOR COSTS INCURRED BY ATTORNEYS IN ATTENDING THESE
 COURSES, WHEN REQUIRED TO DO SO IN ORDER TO CONTINUE TO BE LICENSED TO
 PRACTICE LAW.
 
    CHAPTER 41 OF TITLE 5, UNITED STATES CODE, KNOWN AS THE "TRAINING
 ACT," ESTABLISHES THE LEGAL BASIS FOR REIMBURSEMENT OF GOVERNMENT
 EMPLOYEES UNDERTAKING TRAINING PROGRAMS.  SECTION 4109(A)(2) OF THE
 TRAINING ACT AUTHORIZES AN AGENCY TO PAY, OR TO REIMBURSE AN EMPLOYEE,
 FOR ALL OR PART OF THE EXPENSES OF TRAINING, INCLUDING "TUITION AND
 MATRICULATION FEES." HOWEVER, SECTION 4101(4) DEFINES "TRAINING" FOR
 PURPOSES OF THE ACT AS:
 
    . . . THE PROCESS OF PROVIDING FOR AND MAKING AVAILABLE TO AN
 EMPLOYEE, AND PLACING OR
 
    ENROLLING THE EMPLOYEE IN, A PLANNED, PREPARED, AND COORDINATED
 PROGRAM, COURSE, CURRICULUM,
 
    SUBJECT, SYSTEM, OR ROUTINE OF INSTRUCTION OR EDUCATION, IN
 SCIENTIFIC, PROFESSIONAL,
 
    TECHNICAL, MECHANICAL, TRADE, CLERICAL, FISCAL, ADMINISTRATIVE, OR
 OTHER FIELDS WHICH ARE OR
 
    WILL BE DIRECTLY RELATED TO THE PERFORMANCE BY THE EMPLOYEE OF
 OFFICIAL DUTIES FOR THE
 
    GOVERNMENT, IN ORDER TO INCREASE THE KNOWLEDGE, PROFICIENCY, ABILITY,
 SKILL, AND
 
    QUALIFICATIONS OF THE EMPLOYEE IN THE PERFORMANCE OF OFFICIAL
 DUTIES(.)
 
    THUS, UNDER THE TRAINING ACT, AN AGENCY IS LIMITED TO REIMBURSING AN
 EMPLOYEE FOR THE EXPENSES OF TRAINING WHICH IS OR WILL BE "DIRECTLY
 RELATED TO THE PERFORMANCE BY THE EMPLOYEE OF OFFICIAL DUTIES FOR THE
 GOVERNMENT. . . . "
 
    UNION PROPOSAL I, HOWEVER, DOES NOT, BY EXPRESS LANGUAGE OR INTENT,
 INCORPORATE SUCH STATUTORY LIMITATION UPON REIMBURSEMENT.  RATHER, THE
 PROPOSAL WOULD REQUIRE REIMBURSEMENT FOR ANY CONTINUING LEGAL EDUCATION
 COURSE ATTENDED AS REQUIRED UNDER STATE LAW IN ORDER TO CONTINUE TO BE
 LICENSED TO PRACTICE LAW, REGARDLESS OF WHETHER THE COURSE CONTENT IS OR
 WILL BE DIRECTLY RELATED TO THE EMPLOYEE'S OFFICIAL DUTIES AS AN ESTATE
 AND GIFT TAX ATTORNEY.  TO THE EXTENT THAT THE PROPOSAL THUS FAILS TO
 LIMIT REIMBURSEMENT IT IS INCONSISTENT WITH FEDERAL LAW, I.E., THE
 TRAINING ACT.
 
    FURTHER, SECTION 4106 OF THE TRAINING ACT CONTAINS LIMITATIONS ON THE
 USE OF NON-GOVERNMENT FACILITIES FOR EMPLOYEE TRAINING, E.G., THE NUMBER
 OF MAN-YEARS OF TRAINING IN A FISCAL YEAR MAY NOT EXCEED ONE PERCENT OF
 THE TOTAL NUMBER OF MAN-YEARS WORKED BY CIVILIANS IN AN AGENCY DURING
 THE SAME FISCAL YEAR.  UNION PROPOSAL I DOES NOT IN ANY MANNER
 INCORPORATE THESE STATUTORY LIMITATIONS.
 
    IN SUM, TO THE EXTENT THAT, AS DRAFTED, THE PROPOSAL WOULD CONFLICT
 WITH THE STATUTORY LIMITATIONS DISCUSSED HEREIN, THE PROPOSAL IS
 INCONSISTENT WITH FEDERAL LAW AND IS THEREFORE NOT WITHIN THE AGENCY'S
 DUTY TO BARGAIN AS SET FORTH IN SECTION 7117(A)(1) OF THE STATUTE.  OF
 COURSE, TO THE EXTENT THE PROPOSAL WERE REVISED TO REQUIRE ONLY PAYMENT
 FOR TRAINING IN ACCORDANCE WITH THESE APPLICABLE LEGAL REQUIREMENTS, IT
 WOULD BE NEGOTIABLE.
 
                             UNION PROPOSAL II
 
    ARTICLE 20, SECTION 10, ADMINISTRATIVE LEAVE
 
    EMPLOYEES IN THE GS-905 CLASSIFICATION WHO ARE, UNDER APPLICABLE
 STATE LAW, REQUIRED TO
 
    ATTEND CONTINUING LEGAL EDUCATION COURSES IN ORDER TO BE LICENSED TO
 PRACTICE WITHIN THE
 
    MEANING OF FEDERAL PERSONNEL MANUAL 213, APPENDIX A, A-2(A), WILL BE
 GRANTED ADMINISTRATIVE
 
    LEAVE TO ATTEND SAID COURSES.  THE GRANTING OF ADMINISTRATIVE LEAVE
 FOR REASONS OF ATTENDING
 
    CONTINUING LEGAL EDUCATION COURSES SHOULD IN NO WAY BE DEPENDENT OR
 CONTINGENT UPON A
 
    DETERMINATION THAT REIMBURSEMENT OF THE EMPLOYEES COSTS OF ATTENDING
 THESE COURSES CANNOT BE
 
    MADE DUE TO LACK OF FUNDING OR FOR ANY OTHER REASON.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL II VIOLATES FEDERAL LAW AND IS
 THEREFORE NOT WITHIN THE DUTY TO BARGAIN AS SET FORTH IN SECTION
 7117(A)(1) OF THE STATUTE, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE DUTY TO BARGAIN DOES NOT EXTEND TO UNION
 PROPOSAL II UNDER SECTION 7117(A)(1) OF THE STATUTE TO THE EXTENT THAT
 THE PROPOSAL WOULD REQUIRE THE AGENCY, WITHOUT LIMITATION, AND IN
 VIOLATION OF FEDERAL LAW, TO GRANT ADMINISTRATIVE LEAVE TO ATTORNEYS IN
 THE BARGAINING UNIT FOR THE PURPOSE OF ATTENDING CONTINUING LEGAL
 EDUCATION COURSES, REGARDLESS OF THE CONTENT OF SUCH COURSES.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE
 UNION'S PETITION FOR REVIEW RELATING TO UNION PROPOSAL II BE, AND IT
 HEREBY IS, DISMISSED.
 
    REASONS:  UNION PROPOSAL II WOULD PERMIT ATTORNEYS IN THE BARGAINING
 UNIT TO ATTEND, AS REQUIRED UNDER STATE LAW IN ORDER TO CONTINUE TO BE
 LICENSED TO PRACTICE LAW, CONTINUING LEGAL EDUCATION COURSES, DURING
 DUTY HOURS WITHOUT LOSS OF PAY OR CHARGE TO LEAVE, I.E., ON
 ADMINISTRATIVE LEAVE.
 
    THE TRAINING ACT AUTHORIZES AGENCY HEADS, IN SECTION 4109(A)(1), TO
 "PAY ALL OR A PART OF THE PAY (EXCEPT OVERTIME, HOLIDAY, OR NIGHT
 DIFFERENTIAL PAY) OF AN EMPLOYEE OF THE AGENCY SELECTED AND ASSIGNED FOR
 TRAINING UNDER THIS CHAPTER, FOR THE PERIOD OF TRAINING(.)" AS HAS BEEN
 NOTED IN CONNECTION WITH PROPOSAL I, HOWEVER, "TRAINING," AS USED IN THE
 TRAINING ACT, MUST BE DIRECTLY RELATED TO THE OFFICIAL DUTIES OF THE
 EMPLOYEE UNDERTAKING THE COURSE OF STUDY.  ALSO, AS PREVIOUSLY NOTED,
 THE TRAINING ACT IMPOSES OTHER LIMITATIONS ON AGENCY EXPENDITURES FOR
 TRAINING OF EMPLOYEES.  SIMILAR TO UNION PROPOSAL I, THE INSTANT
 PROPOSAL FAILS TO INCORPORATE IN ANY MANNER THE RELEVANT LIMITATIONS SET
 FORTH IN THE TRAINING ACT.  THEREFORE, UNION PROPOSAL II, TO THE EXTENT
 THAT IT WOULD CONFLICT WITH THE LIMITATIONS OF THE TRAINING ACT, IS ALSO
 NOT WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER SECTION 7117(A)(1) OF THE
 STATUTE.  IF IT WERE REVISED TO REFLECT THESE APPLICABLE LEGAL
 REQUIREMENTS, PROPOSAL II, LIKEWISE, WOULD BE NEGOTIABLE.
 
                            UNION PROPOSAL III
 
    ARTICLE 13, SECTION 3(B), POSITION CLASSIFICATION
 
    WHENEVER AN EXISTING POSITION DESCRIPTION IS AMENDED THE EMPLOYER
 WILL PROVIDE COPIES OF
 
    THE AMENDED DESCRIPTION TO THE UNION, AND THE AFFECTED EMPLOYEES AT
 LEAST FOUR WEEKS IN
 
    ADVANCE OF THE PROPOSED IMPLEMENTATION.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE:  (1) WHETHER UNION PROPOSAL III CONCERNS THE
 AGENCY'S AUTHORITY TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) /2/ OF THE
 STATUTE AND, IF SO, (2) WHETHER THE PROPOSAL IS INCONSISTENT WITH THAT
 SECTION, AS ALLEGED BY THE AGENCY, OR WOULD ESTABLISH A PROCEDURE UNDER
 SECTION 7106(B)(2), /3/ WHICH WOULD NOT PREVENT THE AGENCY FROM
 ASSIGNING WORK.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL III CONCERNS A NEGOTIABLE
 PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE WHICH THE AGENCY WILL
 FOLLOW IN EXERCISING ITS AUTHORITY TO ASSIGN WORK UNDER SECTION
 7106(A)(2)(B).  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
 THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
 PARTIES) BARGAIN CONCERNING UNION PROPOSAL III.  /4/
 
    REASONS:  UNION PROPOSAL III WOULD REQUIRE THE AGENCY TO FURNISH THE
 UNION AND CONCERNED EMPLOYEES WITH COPIES OF AMENDED POSITION
 DESCRIPTIONS FOUR WEEKS PRIOR TO THEIR IMPLEMENTATION.  THE AGENCY
 CONTENDS THAT THE PROPOSAL, BY IMPOSING THE FOUR WEEK WAITING PERIOD,
 EFFECTIVELY NEGATES ITS RESERVED RIGHT TO ASSIGN WORK.  HOWEVER, THE
 PROPOSAL MERELY ADDRESSES A NOTICE PROCEDURE PRIOR TO THE IMPLEMENTATION
 OF REVISED POSITION DESCRIPTIONS.  IT MAKES NO REFERENCE TO, AND IMPOSES
 NO RESTRICTION ON, THE ASSIGNMENT OF WORK TO EMPLOYEES ON THE JOB DURING
 THE INTERIM PERIOD BETWEEN NOTICE OF THE PROPOSED CHANGE IN THE POSITION
 DESCRIPTION AND ITS IMPLEMENTATION.
 
    THE NATURE AND PURPOSE OF OFFICIAL POSITION DESCRIPTIONS WERE
 PREVIOUSLY EXAMINED BY THE AUTHORITY IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE
 SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA NO.
 16(1979), AT 8 OF THE DECISION.  IN THAT CASE, REFERRING TO PORTIONS OF
 THE CHAPTERS 312 AND 511 OF THE FEDERAL PERSONNEL MANUAL, IT WAS
 OBSERVED THAT:
 
    UNDER FEDERAL PERSONNEL REGULATIONS, A POSITION DESCRIPTION IS A
 WRITTEN STATEMENT OF THE
 
    DUTIES AND RESPONSIBILITIES ASSIGNED TO A POSITION.  IT IS THE
 OFFICIAL RECORD OF, AMONG OTHER
 
    THINGS, THE WORK THAT IS TO BE PERFORMED BY THE INCUMBENT OF THE
 POSITION, THE LEVEL OF
 
    SUPERVISION REQUIRED, AND THE QUALIFICATIONS NEEDED TO PERFORM THE
 WORK.  FROM THE STANDPOINT
 
    OF THE EMPLOYEE, THE POSITION DESCRIPTION DEFINES THE KINDS AND THE
 RANGE OF DUTIES HE OR SHE
 
    MAY EXPECT TO PERFORM DURING THE TIME HE OR SHE REMAINS IN THE
 POSITION.  IN THE ACTUAL JOB
 
    SITUATION, HOWEVER, AN EMPLOYEE MIGHT NEVER BE ASSIGNED THE FULL
 RANGE OF WORK COMPRISED
 
    WITHIN THE POSITION DESCRIPTION.  THAT IS, THE POSITION DESCRIPTION
 MERELY DESCRIBES WORK
 
    WHICH IT IS EXPECTED WOULD BE ASSIGNED, BUT IS NOT ITSELF AN
 ASSIGNMENT OF WORK.
 
    CONSIDERED IN THIS LIGHT, AND WITH PARTICULAR REFERENCE TO THE FACT
 THAT " . . . THE POSITION DESCRIPTION MERELY DESCRIBES WORK WHICH IT IS
 EXPECTED WOULD BE ASSIGNED, BUT IS NOT ITSELF AN ASSIGNMENT OF WORK,"
 UNION PROPOSAL III CANNOT BE CONSTRUED AS MANDATING HOW OR WHEN WORK
 WILL BE ASSIGNED TO AGENCY EMPLOYEES IN THE ACTUAL JOB SITUATION.
 RATHER, THE PROPOSAL MERELY WOULD ESTABLISH A PROCEDURE THE AGENCY WILL
 FOLLOW IN AMENDING POSITION DESCRIPTIONS, A MATTER APPROPRIATE FOR
 COLLECTIVE BARGAINING UNDER SECTION 7106(B)(2) OF THE STATUTE.
 
                             UNION PROPOSAL IV
 
    ARTICLE 29, SECTION 5, INVOLUNTARY REASSIGNMENTS
 
    WHEN IT IS NECESSARY TO REASSIGN EMPLOYEES DUE TO A STAFFING
 IMBALANCE, THE EMPLOYER WILL
 
    FIRST ASK FOR VOLUNTEERS FROM AMONG THE QUALIFIED EMPLOYEES AT THE
 AFFECTED POST OF DUTY.  IF
 
    THERE ARE TOO MANY VOLUNTEERS, THE EMPLOYEES WITH THE GREATEST IRS
 SERVICE COMPUTATION DATE
 
    SHALL BE GIVEN THE REASSIGNMENT.  IF THERE ARE TOO FEW VOLUNTEERS,
 THE EMPLOYEES WITH THE
 
    LEAST IRS SERVICE COMPUTATION DATE SHALL BE GIVEN THE REASSIGNMENT.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE:  (1) WHETHER UNION PROPOSAL IV IS OUTSIDE THE
 BARGAINING OBLIGATION BECAUSE IT DOES NOT ADDRESS A PERSONNEL POLICY,
 PRACTICE, OR MATTER AFFECTING WORKING CONDITIONS;  OR (2) WHETHER IT
 CONCERNS THE AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(A) TO ASSIGN
 EMPLOYEES /5/ AND UNDER SECTION 7106(A)(2)(B) OF THE STATUTE TO ASSIGN
 WORK /6/ AND, IF SO, (3) WHETHER THE PROPOSAL IS INCONSISTENT WITH THE
 AUTHORITY OF THE AGENCY UNDER THOSE PROVISIONS, AS THE AGENCY ALLEGES,
 OR WOULD ESTABLISH A PROCEDURE UNDER SECTION 7106(B)(2) WHICH WOULD NOT
 PREVENT THE AGENCY FROM EXERCISING ITS AUTHORITY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL IV DOES ADDRESS A MATTER
 AFFECTING WORKING CONDITIONS OF EMPLOYEES IN THE BARGAINING UNIT.  THE
 PROPOSAL DOES NOT CONCERN THE RIGHT OF THE AGENCY TO ASSIGN EMPLOYEES
 UNDER SECTION 7106(A)(2)(A) OR TO ASSIGN WORK UNDER SECTION
 7106(A)(2)(B) OF THE STATUTE AND, THEREFORE, IS WITHIN THE DUTY TO
 BARGAIN.  /7/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
 THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
 PARTIES) BARGAIN CONCERNING UNION PROPOSAL IV.  /8/
 
    REASONS:  THE AGENCY ALLEGES THAT UNION PROPOSAL IV IS NONNEGOTIABLE
 ON TWO GROUNDS.  FIRST, IT CONTENDS THAT " . . . THE DETERMINATION OF
 WHETHER A STAFFING IMBALANCE EXISTS IS OUTSIDE THE OBLIGATION TO BARGAIN
 SINCE THE DETERMINATION IS NOT A PERSONNEL POLICY, PRACTICE OR MATTER
 AFFECTING WORKING CONDITIONS." SECOND, IT ASSERTS THAT THE PROPOSAL IS
 INCONSISTENT WITH RIGHTS OF THE AGENCY, SPECIFICALLY TO ASSIGN WORK AND
 TO ASSIGN EMPLOYEES.
 
    WITH REGARD TO THE FIRST CONTENTION, THE AGENCY HAS MISCONSTRUED THE
 INTENT OF THE UNION PROPOSAL.  THE PROPOSAL, ON ITS FACE, DOES NOT
 REQUIRE THAT A DETERMINATION THAT A STAFFING IMBALANCE EXISTS BE SUBJECT
 TO NEGOTIATION.  RATHER, THE PROPOSAL BECOMES OPERATIVE "(W)HEN IT IS
 NECESSARY TO REASSIGN EMPLOYEES DUE TO A STAFFING IMBALANCE(.)"
 MOREOVER, THE UNION STATES IN ITS RESPONSE TO THE AGENCY'S STATEMENT OF
 POSITION:
 
    . . . THE UNION HAS NOT PROPOSED THAT IT BE INVOLVED IN DETERMINING
 WHETHER THE WORKLOAD IS
 
    NO GREATER OR INSUFFICIENT AT ANY POST OF DUTY.  AGAIN, IN ORDER FOR
 THE UNION TO BECOME
 
    INVOLVED, THE (AGENCY) MUST MAKE THE DECISION TO REASSIGN AND THAT
 DECISION MUST BE BASED ON
 
    THE (AGENCY) DETERMINATION THAT SPECIFIC FACTORS RESULTING IN A
 STAFFING IMBALANCE DO EXIST.
 
    THE ABOVE STATEMENT IS CONSISTENT WITH THE PROPOSAL ITSELF.
 CONSEQUENTLY, THE STATEMENT IS ADOPTED FOR PURPOSES OF THIS DECISION.
 THE PROVISIONS OF PROPOSAL IV, THEN, ONLY APPLY AFTER THE AGENCY HAS
 DECIDED TO READJUST STAFFING LEVELS TO MEET CURRENT WORKLOADS.  THUS,
 THE AGENCY'S ALLEGATION THAT THE PROPOSAL, BY SEEKING TO INJECT THE
 UNION INTO THE PROCESS OF IDENTIFYING AND ACTING ON STAFFING IMBALANCES,
 FAILS TO ADDRESS A MATTER AFFECTING EMPLOYEE WORKING CONDITIONS, CANNOT
 BE SUSTAINED.
 
    THE AGENCY'S ASSERTION THAT UNION PROPOSAL IV IS INCONSISTENT WITH
 ITS AUTHORITY TO ASSIGN WORK IS LIKEWISE BASED ON A MISINTERPRETATION OF
 THE PROPOSAL.  IN THIS REGARD, THE UNION STATES THAT, UNDER ITS
 PROPOSAL, "THE UNION NEVER BECOMES INVOLVED IN DETERMINING THE LEVEL OF
 WORK OF AN OFFICE OR AN EMPLOYEE." THE UNION ALSO INDICATES THAT IT IS
 IN ACCORD WITH THE AGENCY'S VIEW OF ITS AUTHORITY TO ASSIGN WORK:  "THE
 UNION FURTHER AGREES WITH (THE AGENCY) THAT, "'THE DETERMINATION OF
 WHETHER THE WORKLOAD AND THE WORKFORCE ARE IN PROPORTION, IS A
 UNILATERAL MANAGEMENT DETERMINATION, WHICH MANAGEMENT MAKES BY DECIDING
 HOW MUCH WORK TO ASSIGN TO PARTICULAR EMPLOYEES.'" NOTHING IN THE
 PROPOSAL ITSELF CONTRADICTS THESE STATEMENTS, WHICH ARE ALSO ADOPTED FOR
 PURPOSES OF THE DECISION HEREIN.  THUS, IT IS CLEAR FROM BOTH THE
 PROPOSAL AND THE CITED STATEMENTS THAT THE UNION DOES NOT INTEND TO USE
 PROPOSAL IV AS A VEHICLE TO BECOME INVOLVED IN DETERMINING WHERE WORK
 WILL BE ASSIGNED WITHIN THE AGENCY, NOR MAY THE PROPOSAL BE USED AS A
 BASIS FOR CHALLENGING SUCH DETERMINATIONS.  RATHER, AS NOTED ABOVE,
 UNION PROPOSAL IV ONLY APPLIES AFTER THE AGENCY DETERMINES THAT STAFFING
 LEVELS AT VARIOUS POSTS OF DUTY DO NOT COMPORT WITH THE WORKLOADS
 ASSIGNED AT THOSE LOCATIONS.  HENCE, THE AUTHORITY CONCLUDES THAT THE
 PROPOSAL DOES NOT, IN ANY MANNER, ADDRESS THE AGENCY'S RESERVED
 AUTHORITY TO ASSIGN WORK.
 
    UNION PROPOSAL IV, LIKEWISE, DOES NOT INVOLVE THE ASSIGNMENT OF
 EMPLOYEES TO POSITIONS IN THE AGENCY.  IN THIS REGARD, THE UNION STATES:
 
    NOR DOES THE UNION SEEK ANY PART IN THE INITIAL DECISION TO REASSIGN.
  RATHER, THE UNION
 
    SEEKS TO ESTABLISH A FAIR AND EQUITABLE PROCEDURE FOR REASSIGNMENT
 WHEN MANAGEMENT DETERMINES
 
    TO TRANSFER AN EMPLOYEE TO ANOTHER POST OF DUTY (BECAUSE OF A
 STAFFING
 
    IMBALANCE).  REASSIGNMENT DUE TO A STAFFING IMBALANCE OCCURS WHEN
 THERE ARE TOO MANY OR TWO
 
    FEW EQUALLY QUALIFIED PEOPLE TO PERFORM THE SAME TYPE OF WORK.  THIS
 MEANS THAT ANY EMPLOYEE
 
    COULD BE TRANSPLANTED AND BE EXPECTED TO PERFORM IN A SUBSTANTIALLY
 SIMILAR MANNER.
 
    AGAIN, THE UNION'S EXPLANATION IS CONSISTENT WITH THE PROPOSAL ITSELF
 AND IS ADOPTED FOR PURPOSES OF THIS DECISION.  IN THE CIRCUMSTANCES
 ADDRESSED BY THE PROPOSAL, THE AGENCY WILL ALREADY HAVE DECIDED WHERE
 ITS WORK IS TO BE ASSIGNED AND ALSO WILL HAVE DETERMINED THAT IT IS
 NECESSARY TO READJUST STAFFING LEVELS, AMONG VARIOUS ORGANIZATIONAL
 ELEMENTS, TO MEET WORKLOAD REQUIREMENTS.  THUS, AS POINTED OUT BY THE
 UNION, THE PROPOSAL DOES NOT INHIBIT MANAGEMENT IN DETERMINING THAT
 WORKLOAD CONSIDERATIONS REQUIRE EMPLOYEE REASSIGNMENTS NOR DOES IT
 CONCERN THE NUMBERS OR TYPES OF EMPLOYEES WHO WILL BE AFFECTED BY SUCH A
 DECISION.  THESE DECISIONS PLAINLY REMAIN WITHIN THE DISCRETION OF
 MANAGEMENT.
 
    THE SUBJECT MATTER OF UNION PROPOSAL IV, AS STATED IN THE PROPOSAL
 ITSELF AND IN THE UNION'S EXPLANATION THEREOF, INVOLVES THE REASSIGNMENT
 OF "QUALIFIED" EMPLOYEES FROM ONE POST OF DUTY TO ANOTHER TO PERFORM THE
 SAME DUTIES AS WERE ASSIGNED AT THE PREVIOUS LOCATION.  AS THE UNION
 POINTS OUT, AN EMPLOYEE, TO BE INCLUDED WITHIN THE OPERATION OF THIS
 PROPOSAL, " . . . COULD BE TRANSPLANTED AND BE EXPECTED TO PERFORM IN A
 SUBSTANTIALLY SIMILAR MANNER." THUS, UNDER THE PROPOSAL, SELECTION FOR
 REASSIGNMENTS IN THE CIRCUMSTANCES DESCRIBED WOULD BE FROM AMONG
 EMPLOYEES ALREADY CHOSEN BY THE AGENCY TO PERFORM DUTIES SUBSTANTIALLY
 SIMILAR TO THOSE REQUIRED IN THE NEW ASSIGNMENTS.  THE ONLY CHANGE, IN
 INSTANCES WHERE PROPOSAL IV IS APPLICABLE, WOULD BE IN THE POST OF DUTY
 AT WHICH THE WORK IS PERFORMED.  THE PROPOSAL, THEN, WOULD APPLY TO
 SITUATIONS NOT INVOLVING BASIC CHANGES IN DUTIES, RESPONSIBILITIES OR
 RELATIVE LOCATION WITHIN THE ORGANIZATIONAL STRUCTURE.  IN THIS RESPECT,
 UNION PROPOSAL IV BEARS NO MATERIAL DIFFERENCE FROM THE UNION PROVISION
 WHICH WAS BEFORE THE AUTHORITY IN AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR
 FORCE BASE, OHIO, 5 FLRA NO.  15(1981).  IN THAT CASE THE PROPOSAL FOUND
 TO BE 'WITHIN THE DUTY TO BARGAIN INVOLVED TEMPORARY DUTY ASSIGNMENTS.
 THE AUTHORITY NOTED THAT SELECTION FOR SUCH ASSIGNMENTS, AS HERE, "WOULD
 BE FROM AMONG EMPLOYEES ALREADY PERFORMING THE SAME DUTIES AND WOULD
 NOT
 IN ANY WAY CHANGE THOSE DUTIES.  THE ONLY CHANGE WHICH WOULD RESULT
 WOULD BE A DIFFERENCE IN WHERE THE EMPLOYEE WOULD PERFORM THOSE DUTIES."
 THEREFORE, FOR THE REASONS FULLY SET FORTH IN THE WRIGHT-PATTERSON AIR
 FORCE BASE, OHIO CASE, UNION PROPOSAL IV DOES NOT CONCERN THE AUTHORITY
 OF THE AGENCY TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE
 STATUTE.  ACCORDINGLY, UNION PROPOSAL IV IS WITHIN THE DUTY TO BARGAIN
 UNDER THE STATUTE.
 
                             UNION PROPOSAL V
 
    ARTICLE 11, SECTION 1, ASSIGNMENT OF WORK
 
    THE EMPLOYER WILL RETAIN SELECTED CASES OF AN INDIVIDUAL REVENUE
 OFFICER, REVENUE AGENT OR
 
    TAX AUDITOR'S CASELOAD WHEN THE CASELOAD IS UNMANAGEABLE.  THE
 PARTIES RECOGNIZE THAT THE
 
    NUMBER OF CASES EACH INDIVIDUAL EMPLOYEE CAN MANAGE IS DEPENDENT ON
 MANY FACTORS WHICH ARE
 
    UNIQUE TO EACH AFFECTED EMPLOYEE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL V IS INCONSISTENT WITH THE
 AUTHORITY OF THE AGENCY TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF
 THE STATUTE, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL V IS INCONSISTENT WITH THE
 AGENCY'S RESERVED AUTHORITY TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B)
 OF THE STATUTE AND, THEREFORE, THE DUTY TO BARGAIN DOES NOT EXTEND TO
 THIS MATTER.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
 THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION
 PROPOSAL V BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  UNION PROPOSAL V WOULD REQUIRE THE AGENCY TO RETAIN
 "SELECTED CASE," THAT IS, TO REFRAIN FROM ASSIGNING SUCH CASES TO THE
 LISTED AGENCY EMPLOYEES "WHEN THE CASELOAD IS UNMANAGEABLE"-- A
 SITUATION NOT FURTHER DEFINED IN THE PROPOSAL.  THUS, THE PROPOSAL
 IMPOSES A CONDITION PRECEDENT TO THE ASSIGNMENT OF CASES TO CERTAIN
 AGENCY EMPLOYEES:  THE EMPLOYEES MUST HAVE "MANAGEABLE" CASELOADS.
 
    UNDER UNION PROPOSAL V THE AGENCY WOULD BE PRECLUDED FROM ASSIGNING
 CASES TO THE DESIGNATED BARGAINING UNIT EMPLOYEES IF THEIR CASELOADS
 WERE "UNMANAGEABLE." THE PROHIBITION WOULD APPLY IRRESPECTIVE OF THE
 AGENCY'S IMMEDIATE NEEDS OR OF STATUTORY OR REGULATORY REQUIREMENTS.
 THUS, THE PROPOSAL CONSTITUTES AN INFRINGEMENT UPON THE AGENCY'S
 AUTHORITY TO ASSIGN WORK IN THAT, UNDER CERTAIN CIRCUMSTANCES, IT WOULD
 PREVENT THE AGENCY FROM MAKING CASE ASSIGNMENTS TO EMPLOYEES;  IN VIEW
 OF THIS INFRINGEMENT ON THE AGENCY'S AUTHORITY TO ASSIGN WORK, UNION
 PROPOSAL V IS NOT WITHIN THE DUTY TO BARGAIN.
 
                             UNION PROPOSAL VI
 
    ARTICLE 14, SECTION 3, FACILITIES AND SERVICES
 
    THE EMPLOYER AGREES TO PERMIT THE UNION TO DISTRIBUTE TO EACH
 BARGAINING UNIT EMPLOYEE
 
    ANNUALLY, DURING A PAY PERIOD SELECTED BY A CHAPTER, THE APPLICABLE
 CHAPTER ANNOUNCEMENT CARD
 
    REFERRED TO IN ARTICLE 24, SECTION 3.  DISTRIBUTION WILL BE MADE
 WITHOUT CHARGE TO LEAVE OF
 
    THE UNION REPRESENTATIVE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL VI, PROVIDING FOR DISTRIBUTION
 OF CHAPTER ANNOUNCEMENT CARDS BY A UNION REPRESENTATIVE ON OFFICIAL
 TIME, VIOLATES SECTION 7131(B) OF THE STATUTE, /9/ AS ALLEGED BY THE
 AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL VI DOES NOT VIOLATE SECTION
 7131(B) OF THE STATUTE AND THEREFORE IS WITHIN THE AGENCY'S DUTY TO
 BARGAIN AS SET FORTH IN SECTION 7117(A)(1) OF THE STATUTE.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR
 AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL
 VI.  /10/
 
    REASONS:  THE MEANING AND PURPOSE OF SECTION 7131(B) WERE CLOSELY
 EXAMINED IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 2823 AND VETERANS ADMINISTRATION REGIONAL OFFICE, CLEVELAND, OHIO, 2
 FLRA NO. 1(1979).  BASED ON A REVIEW OF THE LANGUAGE OF THAT SECTION AND
 OF ITS LEGISLATIVE HISTORY, IT WAS CONCLUDED THAT, " . . . IT IS CLEAR
 THAT THE ACTIVITIES CITED IN THE STATUTE, I.E., SOLICITATION OF
 MEMBERSHIP, COLLECTION OF DUES, AND ELECTION OF UNION OFFICIALS, WERE
 INCLUDED AS EXAMPLES (OF ACTIVITIES TO BE CARRIED OUT DURING NON-DUTY
 TIME) BECAUSE THE ONLY FUNCTION OF SUCH ACTIVITIES IS THE MAINTENANCE OF
 THE UNION AS AN ORGANIZATION, I.E., THEY ARE RELATED SOLELY TO THE
 INSTITUTIONAL STRUCTURE OF THE UNION."
 
    TURNING TO THE INSTANT PROPOSAL, THE CARD ITSELF, SELF-ADDRESSED AND
 POSTAGE PAID, WHICH THE PARTIES HAVE APPARENTLY ALREADY NEGOTIATED
 WITHOUT DISPUTE, WOULD BE DISTRIBUTED TO ALL BARGAINING UNIT EMPLOYEES,
 NOTIFYING THEM OF THE CHAPTER NUMBER, THAT THE CHAPTER IS THE EXCLUSIVE
 REPRESENTATIVE FOR THE UNIT, AND THAT THE CHAPTER IS A COMPONENT OF THE
 NATIONAL TREASURY EMPLOYEES UNION.  IT INVITES EMPLOYEES TO FURNISH THE
 UNION WITH CERTAIN INFORMATION "(S)O THAT (THE UNION) MAY PROVIDE
 MAXIMUM SERVICE TO EMPLOYEES(.)" THE INFORMATION REQUESTED IS THE
 EMPLOYEE'S NAME, ADDRESS, SOCIAL SECURITY NUMBER, HOME TELEPHONE NUMBER,
 NAME OF SPOUSE, ORGANIZATIONAL LOCATION WITHIN THE BARGAINING UNIT,
 WHETHER THE EMPLOYEE IS A MEMBER OF THE UNION AND, IF SO, WHETHER DUES
 ARE PAID BY PAYROLL DEDUCTION, AND WHETHER THE EMPLOYEE HAS UNION
 INSURANCE.
 
    IT IS PERTINENT TO NOTE THAT THE CARD IS NOT AN OVERT PLEA FOR
 MEMBERSHIP AND THAT DISTRIBUTION OF THE CARDS WOULD SERVE THE FUNCTION
 OF ADVISING OR REMINDING MEMBERS OF THE BARGAINING UNIT THAT THE UNION
 IS THEIR EXCLUSIVE REPRESENTATIVE.  BY ADVISING EMPLOYEES OF THE UNION'S
 STATUS AS THE EXCLUSIVE REPRESENTATIVE, DISTRIBUTING THE CHAPTER
 ANNOUNCEMENT CARDS AIDS IN IMPLEMENTING THE LABOR-MANAGEMENT
 RELATIONSHIP AND IS NOT SOLELY RELATED TO THE INSTITUTIONAL STRUCTURE OF
 THE UNION.  HENCE, DISTRIBUTION OF SUCH CARDS DOES NOT CONSTITUTE
 INTERNAL BUSINESS OF THE UNION WITHIN THE MEANING OF SECTION 7131(B) OF
 THE STATUTE AND, THEREFORE, UNION PROPOSAL VI IS WITHIN THE DUTY TO
 BARGAIN.
 
                            UNION PROPOSAL VII
 
    ARTICLE . . . , SECTION 6, TELEPHONE MONITORING
 
    A.  EACH EMPLOYEE WILL BE INFORMED, AS PART OF HIS/HER TRAINING, THAT
 THE MONITORING IS FOR
 
    THE PURPOSE OF HELPING THEM TO PERFORM QUALITY WORK AND THAT THE
 INFORMATION WILL BE USED FOR
 
    TRAINING, NOT EVALUATION.
 
    B.  THE SERVICE CENTER QUALITY REVIEW MONITOR WILL PREPARE A SUMMARY
 OF THE REVIEW RESULTS
 
    ONCE A MONTH FOR TRAINING PURPOSES.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL VII IS INCONSISTENT WITH THE
 AUTHORITY OF THE AGENCY TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF
 THE STATUTE AND THEREFORE, AS ALLEGED BY THE AGENCY, IS NOT WITHIN THE
 DUTY TO BARGAIN.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL VII IS INCONSISTENT WITH THE
 AUTHORITY OF THE AGENCY TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF
 THE STATUTE AND THEREFORE THE DUTY TO BARGAIN DOES NOT EXTEND TO THIS
 MATTER.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
 PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION PROPOSAL
 VII BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND
 AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2
 FLRA NO. 77(1980), THE AUTHORITY DETERMINED THAT DISPUTED PROPOSAL XI,
 WHICH WOULD HAVE REQUIRED THE AGENCY TO ASSIGN EQUAL EMPLOYMENT
 OPPORTUNITY COUNSELING DUTIES TO A CERTAIN PERCENTAGE OF EMPLOYEES
 SELECTED BY THE UNION, TO THE EXCLUSION OF OTHER AGENCY EMPLOYEES,
 VIOLATED SECTION 7106(A)(2)(B) OF THE STATUTE AND WAS NOT WITHIN THE
 DUTY TO BARGAIN.  IN SO CONCLUDING, THE AUTHORITY STATED:  " . . . SINCE
 THE DISPUTED PORTION OF THE PROPOSAL DIRECTLY PRESCRIBES THE ASSIGNMENT
 OF CERTAIN DUTIES TO PARTICULAR EMPLOYEES, AND, IN EFFECT, PRECLUDES THE
 ASSIGNMENT OF THOSE DUTIES TO OTHER EMPLOYEES, IT CONFLICTS WITH SECTION
 7106(A)(2)(B) OF THE STATUTE."
 
    TURNING TO THE PRESENT DISPUTED PROPOSAL, IT WOULD SIMILARLY OBLIGATE
 THE AGENCY TO ASSIGN CERTAIN SPECIFIED DUTIES, I.E., PREPARATION OF
 SUMMARIES OF TELEPHONE MONITORING REVIEW RESULTS ONCE EACH MONTH FOR
 TRAINING PURPOSES, TO BE DESIGNATED AGENCY EMPLOYEE, I.E., THE SERVICE
 CENTER QUALITY REVIEW MONITOR.  THEREFORE, BASED ON THE REASONS SET
 FORTH IN DETAIL IN THE AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR
 FORCE BASE CASE, UNION PROPOSAL VII MUST ALSO BE HELD TO BE OUTSIDE THE
 DUTY TO BARGAIN UNDER THE STATUTE.  THAT IS, TO THE EXTENT THE PROPOSAL
 WOULD REQUIRE THE ASSIGNMENT OF THE WORK OF PREPARING THE SUMMARY OF
 REVIEW RESULTS TO A SPECIFIED AGENCY EMPLOYEE AND, IMPLICITLY, WOULD
 PRECLUDE THE ASSIGNMENT OF THOSE DUTIES TO OTHER EMPLOYEES, IT IS
 NONNEGOTIABLE.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT N