17:0379(60)NG - NTEU and IRS -- 1985 FLRAdec NG

 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).