17:0379(60)NG - NTEU and IRS -- 1985 FLRAdec NG
[ v17 p379 ]
The decision of the Authority follows:
17 FLRA No. 60 NATIONAL TREASURY EMPLOYEES UNION Union and INTERNAL REVENUE SERVICE Agency Case No. 0-NG-810 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and presents issues concerning the negotiability of two Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 The selection of employees to perform office audits shall be made in accordance with Principles B and C of the National Redeployment Guidelines. /1/ (Footnote added.) The record indicates that these proposals were prompted by the Agency's announced plan to have employees of the Employee Plans (EP) Division conduct some employee benefit plans audits, formerly undertaken at the taxpayer's place of business, as office audits at Agency district offices. According to the Agency, "A determination by management to assign office audit work to certain EP employees who usually perform field examinations will result in those employees spending slightly more time at their assigned offices than they have spent there in the past." /2/ The Agency further states: "The performance of both the field and office audits referred to herein comes within the position description of the employees at issue." /3/ With specific reference to Union Proposal 1, the Agency maintains that application of the proposed procedures would not take into consideration the unavailability of an employee because of involvement "in a long-term and complex field audit" and would not include as a factor in the selection process "the availability of employees based on current workload priorities and assignments . . . ." /4/ Concerning the management right to assign work pursuant to section 7106(a)(2)(B) of the Statute, the Authority noted, in connection with Union Proposal 13, in American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347, 377 (1982), rev'd as to other matters sub nom. U.S. Department of Justice v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), that " . . . the right to assign work includes discretion to determine the particular employee to whom the work will be assigned and to determine when the work which has been assigned will be performed." While the Agency's position that Union Proposal 1 would interfere with its discretion in deciding who will undertake the office audits is unpersuasive, /5/ the Authority does agree with the Agency's assertion that the proposal would interfere with the right to determine when assigned work will be performed. That is, by prescribing the selection of employees to perform office audits without taking into consideration those employees' availability to perform such work, Union Proposal 1 would force management into one of two choices where the employees identified by application of the proposed procedures are engaged in ongoing or priority field audits. The Agency would either have to relieve the identified employees of their continuing assignments or delay the start of the office audits pending completion of the field assignments. Thus, the proposal, in certain circumstances, would affect management's discretion regarding the timing of the assignment of work to employees, and is, for the reasons set forth concerning Union Proposal 13 in Immigration and Naturalization Service, outside the Agency's obligation to bargain. Union Proposal 2 Where the NTEU Chapter President or Steward is assigned to EP/EO field work, he/she shall be given the opportunity to work office/correspondence examinations before volunteers are solicited, absent just cause. Union Proposal 2 differs from Union Proposal 1 in that, as the Union points out, the "just cause" provision encompasses circumstances where the Union officials "due to their present work assignments, cannot be called back to the office without causing a severe interruption of the (Agency's) workload." /6/ However, Union Proposal 2 is to the same effect as Union Proposal 7 in American Federation of Government Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004 (1982), which similarly sought preferential treatment in the assignment of work to union officials. Noting that the right, pursuant to section 7106(a)(2)(B), includes authority "to assign work to all employees, regardless of whether they are Union officials and regardless of whether they consent," the Authority found the cited proposal to be nonnegotiable. Therefore, based on U.S. Marshals Service, the reasons and cases cited therein, Union Proposal 2 is not within the duty to bargain. /7/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., April 4, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The cited principles of the Guidelines provide as follows: B. Placement of affected volunteers into continuing positions by reassignments or voluntary downgrades shall be made in accordance with the competitive procedures of Article 7 of the Master Agreement. C. When involuntary reassignments must be made, inverse IRS seniority of employees will play the primary role in determining which affected employees are placed in continuing positions. /2/ Agency Statement of Position at 1-2. /3/ Id. at n. 4. /4/ Id. at 9 and 11. /5/ See American Federation of Government Employees, Council of Social Security District Office Locals and Department of Health and Human Services, Social Security Administration, 15 FLRA No. 114 (1984), wherein the Authority held that a proposal, setting forth a procedure to be used by management in choosing among employees already deemed by management to be qualified for an assignment, was negotiable. /6/ Union Petition for Review at 2. /7/ See also 5 U.S.C. 7116(a)(2).