22:0314(30)NG - NTEU Chapter 26 and IRS, Atlanta District -- 1986 FLRAdec NG



[ v22 p314 ]
22:0314(30)NG
The decision of the Authority follows:


 22 FLRA No. 30
 
 NATIONAL TREASURY EMPLOYEES UNION, 
 CHAPTER 26
 Union
 
 and
 
 INTERNAL REVENUE SERVICE, 
 ATLANTA DISTRICT
 Agency
 
                                            Case No. 0-NG-237
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of five Union proposals /1/ dealing with impact and
 implementation bargaining on changes in working conditions of certain
 unit employees caused by the institution of a temporary program in one
 of the Agency's divisions.
 
                          II.  Preliminary Issues
 
                           A.  Motion to Dismiss
 
    The Agency filed a motion to dismiss the petition for review in this
 case.  The Agency based its motion on the grounds that the petition was
 untimely filed and did not contain necessary attachments.  However, the
 record establishes that the petition for review was filed within the
 time limits required under sections 2424.3, 2429.21, and 2429.22 of the
 Authority's Rules and Regulations.  Moreover, the Union submitted the
 necessary attachments within the time limits normally afforded parties
 by the Authority to correct procedural deficiencies. Accordingly, the
 Agency's motion to dismiss must be denied.
 
                     B.  More Than "De Minimis" Impact
 
    The Agency contends that it is under no obligation to negotiate any
 of the Union's proposals because the temporary program it instituted
 caused no significant changes in the working conditions of affected
 employees.  For the following reason the Authority disagrees.
 
    In conjunction with the petition for review of the negotiability of
 its proposals, the Union also filed an unfair labor practice charge
 against the Agency.  The charge alleged a failure to give the Union
 adequate prior notice of the implementation of its program and a refusal
 to bargain at the Union's request concerning procedures to be utilized
 in implementing the change and appropriate arrangements for the affected
 employees.  The Union elected to have the unfair labor practice charge
 resolved prior to any determination being made on the negotiability
 issues.  As a result, in Internal Revenue Service, 16 FLRA 845 (1984),
 the Authority adopted an Administrative Law Judge's finding that the
 Agency violated section 7116(a)(1) and (5) of the Statute, as alleged by
 the Union.  The Authority found that the impact of the Agency's program
 on unit employees was more than de minimis.  Therefore, in terms of this
 case, the Authority concludes that the Agency's contention that its
 program caused no significant impact in the working conditions of
 affected employees is without merit, and must be denied.
 
                          III.  Union Proposal 1
 
          Management agrees that in grading cases it will follow IRM MT
       7500-23 (1-12-79)
 
                       A.  Positions of the Parties
 
    IRM MT 7500-23 refers to Internal Revenue Manual, Manual Transmittal
 7500-23, a document used by the Agency for the purpose of assigning work
 to its employees.  The Agency contends that the proposal would affect
 its determinations as to the content of the work performed by employees
 and, therefore, interferes with the Agency's right to determine its
 organization under section 7106(a)(1) and its right to assign work under
 section 7106(a)(2)(B) of the Statute.  The Agency also contends that the
 document referred to in the proposal is an internal guide to managers
 never intended to be mandatory and that it already uses the guidelines
 whenever possible, so that bargaining over the proposal would serve no
 useful purpose.
 
    The Union contends that the document referred to in the proposal is
 binding on management officials.  The proposal would merely insure that
 whatever work is assigned is properly graded and that where an employee
 believes work is misgraded, a contractual remedy would exist.  The Union
 further states in its petition for review that all of its proposals,
 including Union Proposal 1, "fall within the ambit" of section
 7106(b)(2) and section 7106(b)(3) of the Statute.
 
                               B.  Analysis
 
    In previous decisions, the Authority has indicated that an agency's
 right to determine its organization refers primarily to its right to
 determine the internal structure of the organization.  See, for example,
 American Federation of Government Employees, AFL-CIO, Local 32 and
 Office of Personnel Management, 17 FLRA 790 (1985).  The proposal in
 this case would not require the Agency to modify its internal structure,
 and, therefore, does not interfere with the Agency's right to determine
 its organization under section 7106(a)(1).
 
    As to the Agency's argument concerning assignment of work, the
 document referred to in the proposal contains criteria used by
 management officials in grading the level of difficulty of the work to
 be performed by their employees.  Presumably, by correlating the level
 of difficulty with a specific GS level, the more difficult the work, the
 higher the GS level of the employee assigned to perform the work.  The
 proposal would require management to assign work to its employees
 strictly on the basis of the criteria specified in the document and
 would prevent management from deviating from those criteria.  In
 National Treasury Employees Union and Department of the Treasury, Bureau
 of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. NTEU v. FLRA,
 691 F.2d 553 (D.C. Cir. (1982), the Authority established that the right
 to assign work under section 7106(a)(2)(B) includes the discretion to
 determine "the particular employees to whom or positions to which (work)
 will be assigned." Since the proposal would make it impossible for the
 Agency to deviate from the criteria established in the document in
 assigning particular employees to perform work, the proposal directly
 interferes with management's right to assign work and does not
 constitute a procedure under section 7106(b)(2) of the Statute.
 
    Subsequent to the filings in this case, the Authority issued National
 Association of Government Employees, Local R14-87 and Kansas Army
 National Guard, 21 FLRA No. 4 (1986).  There the Authority stated that
 henceforth we will determine whether a proposal constitutes a negotiable
 "appropriate arrangement" under section 7106(b)(3) of the Statute by
 determining whether the proposal "excessively interferes" with the
 exercise of management's rights.  In making such a determination, the
 Authority will first examine the record in each case to ascertain as a
 threshold question whether a proposal is in fact intended to be an
 arrangement for employees adversely affected by management's exercise of
 it rights.  If the Authority concludes that a proposal is in fact
 intended as an arrangement, we will then determine whether the
 arrangement is appropriate or whether it is inappropriate because it
 excessively interferes.
 
    The record fails to clearly indicate how this proposal is intended to
 operate as an appropriate arrangement.  However, it would seem, and we
 assume for purposes of this decision, that the Union intends the
 proposal to be an arrangement for employees adversely affected by
 management's right to assign work under section 7106(a)(2)(B) of the
 Statute.  That is, the proposal would be intended to ameliorate the
 adverse affects on employees as a result of management's right to assign
 work by binding management to the criteria for grading and assigning
 work in the document as a matter of contract.  However, the Authority
 finds that the proposed amelioration could totally preclude the Agency
 from exercising its right to assign work to a particular employee if
 such assignment were not strictly in accordance with the criteria.
 Through the arbitration process management's decision to assign work to
 a particular employee could be completely negated.  Such a proposed
 amelioration which totally abrogates the exercise of a management right
 clearly does not constitute an appropriate arrangement within the
 meaning of section 7106(b)(3).  See American Federation of Government
 Employees, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983),
 reversing and remanding American Federation of Government Employees,
 AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census,
 Washington, D.C., 7 FLRA 91 (1981).
 
                              C.  Conclusion
 
    The Authority concludes, therefore, based on the reasons and cases
 cited above, that Union Proposal 1 does not interfere with management's
 right to determine its organization, under section 7106(a)(1).  The
 proposal does directly interfere with management's right to assign work,
 under section 7106(a)(2)(B) of the Statute and does not constitute a
 procedure within the meaning of section 7106(b)(2).  In addition, the
 proposal does not constitute an appropriate arrangement for employees
 adversely affected by management's right to assign work under section
 7106(b)(3) of the Statute, because it excessively interferes with that
 right.  Accordingly, the proposal is outside the duty to bargain.  /2/
 
                           IV.  Union Proposal 2
 
          The Agency agrees to request from GSA, a sufficient number of
       government cars for qualified EP employees who are involved in the
       TCMP program and request it.
 
                       A.  Positions of the Parties
 
    TCMP refers to the Agency's Taxpayer Compliance Measurement Program,
 the Agency's temporary program in this case.  EP refers to the Agency's
 Exempt Plan agents, the particular employees affected by the Agency's
 temporary program.  The Agency contends that the proposal involves a
 subject which is negotiable only at its election, under section
 7106(b)(1) of the Statute, and it elects not to negotiate the matter.
 The Union, on the other hand, argues that the Agency has already
 determined the technology, methods and means by which the work is to be
 performed.  The proposal, therefore, properly concerns the impact and
 implementation of management's prior decision upon the conditions of
 employment of unit employees and is negotiable.
 
                               B.  Analysis
 
    The proposal would require the Agency to request cars from GSA for
 the purpose of providing those cars to employees involved in the
 Agency's temporary TCMP.  Based on the record in this case it is clear
 that travel is a necessary aspect of the Agency's temporary program.
 The Authority has previously determined that the choice of the mode of
 transportation to be used for accomplishing an agency's mission is a
 decision as to the "means" to be used for its accomplishment, that is,
 the instrumentalities or agents, tools, or devices used to accomplish
 the agency's work.  American Federation of Government Employees,
 AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison
 Region, 21 FLRA No. 104 (1986) (Union Proposal 10).  In requiring
 management to negotiate on this proposal, therefore, the Union is
 requiring management to bargain over a particular "means" of performing
 the work assignments associated with its temporary program.  See also
 National Treasury Employees Union and U.S. Customs Service, Region VIII,
 San Francisco, California, 2 FLRA 254 (1979).
 
    The Union has indicated that its proposal concerns the impact and
 implementation of the Agency's prior decision to use cars for the
 performance of work associated with its temporary program.  The proposal
 therefore concerns how the cars shall be provided.  The record fails to
 clearly indicate how this proposal is intended to operate as a
 procedure, under section 7106(b)(2), or as an appropriate arrangement,
 under section 7106(b)(3) of the Statute.  In any event, having
 determined that the proposal directly interferes with management's
 substantive rights under section 7106(b)(1), we find further that it
 cannot constitute a negotiable procedure.  Moreover, assuming the
 proposal is intended as an appropriate arrangement for employees
 adversely affected by the Agency's right to implement its temporary
 program, that is, its right to assign work under section 7106(a)(2)(B),
 we find the proposal would be inappropriate because it would be
 inappropriate because it would excessively interfere with management's
 right under section 7106(b)(1) to determine the technology, methods and
 means of performing work.  It would be inappropriate because it would
 completely negate the Agency's section 7106(b)(1) right to decide the
 means to be used in the accomplishment of its mission, rather than
 merely ameliorating the adverse affect on employees of the Agency's
 exercise of its rights.  See analysis of Proposal 1 above.
 
                              C.  Conclusion
 
    Union Proposal 2 concerns a matter negotiable only at the election of
 management under section 7106(b)(1) of the Statute, as alleged by the
 Agency.  Moreover, the proposal does not constitute a procedure nor is
 it an appropriate arrangement, under section 7106(b)(3), because it
 would completely negate the exercise of management's rights.  Therefore,
 the Agency is under no obligation to bargain over the proposal.
 
                           V.  Union Proposal 3
 
          If GSA refuses or is unable to provide sufficient number of
       cars for employees in the TCMP program, then those which are
       provided will be assigned on a hardship basis.  Indications of
       hardship will include:
 
          1.  Only one car in the family.
 
          2.  Ownership of a car whose age and condition is such that it
       is suitable only for local travel.
 
                             Union Proposal 4
 
          Those employees working TCMP whose assignments are more than
       150 miles from their POD (Post of Duty) who choose to fly will be
       permitted to secure GSA cars when available or rental cars from
       authorized GSA supplier for local transportation.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposals conflict with agency-wide
 regulation IRM 1(14)47.1, "Motor Vehicle Management Handbook." It
 further claims that its regulation is "dictated" by the GSA regulations
 which govern the matters at issue.  The Agency asserts, therefore, that
 in the absence of a finding by the Authority that no compelling need
 exists for this regulation, under section 7117(a)(2) of the Statute, the
 Agency has no obligation to bargain over these proposals.  The Agency
 also contends that the proposals concern the technology, methods and
 means of performing work under section 7106(b)(1), matters which are
 negotiable only at the election of the Agency.  Finally, with respect to
 Union Proposal 4, the Agency states that because it is already
 voluntarily complying with the substance of the proposal, any
 negotiations would be meaningless.
 
    The Union contends that the burden of proof is on the Agency to
 demonstrate a compelling need for its regulations, and that the Agency
 has failed to meet that burden.  As to the Agency's view that the
 proposals concern matters negotiable only at its election, the Union
 asserts that Union Proposal 3 is a procedure for determining how a
 previous management decision is to be implemented, and, therefore,
 concerns a mandatory subject of bargaining.  The Union also contends
 that the Agency has merely asserted, without any rationale, that Union
 Proposal 4 involves a permissive subject of bargaining, and that mere
 assertion is insufficient to demonstrate that the proposal is outside
 the duty to bargain.
 
                               B.  Analysis
 
               1.  Compelling Need Under Section 7117(a)(2)
 
    The Authority has consistently held that when an agency alleges the
 nonnegotiability of a proposal because it conflicts with one of its
 regulations under section 7117(a)(2), the agency bears the burden of
 demonstrating that a compelling need exists for that particular
 regulation.  American Federation of Government Employees, AFL-CIO, local
 1928 and Department of the Navy, Naval Air Development Center,
 Warminster, Pennsylvania, 2 FLRA 450 (1980).  In agreement with the
 Union, the Agency in this case has failed to demonstrate that there is a
 compelling need for its regulation.
 
    The Agency's compelling need argument is based on its contention that
 its regulation implements a mandate under GSA regulations. See section
 2424.11(c) of the Authority's rules.  The Agency does not specifically
 contend that the proposals are inconsistent with GSA regulations
 governing the assignment of cars to employees on official Government
 business.  However, the Agency variously states that its own regulations
 "incorporate," are "dictated by," and are "based on" the GSA
 regulations.  An examination of the current GSA regulations governing
 the matters covered by the proposals, as stated in GSA bulletin FPMR
 A-40, Supp. 5, effective June 19, 1983, fails to reveal any
 inconsistency between the proposals and GSA's current guidelines.
 Specifically, it does not appear that current GSA guidelines include a
 mileage test, which the Agency claims to have incorporated into its
 regulations, and which it further claims is inconsistent with Union
 Proposal 3.  Therefore, the Agency has not supported its suggestion that
 its regulations somehow are mandated by the GSA regulations.
 
            2.  Management Rights Under Section 7106(b)(1) and
 
                Procedures and Appropriate Arrangements
 
    Union Proposal 3 contemplates a situation where an insufficient
 number of cars will be available for employees' use as a result of the
 implementation of the Agency's temporary program.  It provides that in
 such a circumstance, cars will be allocated to employees on the basis of
 hardship.  Therefore, contrary to the Agency's position, the Authority
 finds that Union Proposal 3 concerns a procedure for implementing
 management's previous decision to use cars in performing the Agency's
 mission during the existence of its temporary program, and does not
 directly concern the technology, methods and means of performing work,
 under section 7106(b)(1).
 
    As to Proposal 4, the Union contends that the mere assertion by the
 Agency that it involves permissive subjects of bargaining is not
 sufficient to establish the assertion.  The Authority agrees.  However,
 the Authority is required to find nonnegotiable proposals which appear
 to conflict with law or Government-wide regulations.  In the case of
 Union Proposal 4, despite a lack of articulated rationale on the part of
 the Agency in support of its assertion, the proposal does nonetheless
 conflict with section 7106(b)(1) on its face.  It would permit affected
 employees to secure GSA cars, or rental cars, under the conditions
 specified in the proposal, for local transportation in the performance
 of their work.  See discussion of Union Proposal 2 above.  For this
 reason, the proposal directly concerns the technology, methods and means
 of performing work, under section 7106(b)(1).
 
    As with the other proposals, the record does not clearly indicate how
 Union Proposals 3 and 4 are intended to operate as procedures, under
 section 7106(b)(2), or as appropriate arrangements, under section
 7106(b)(3) of the Statute.  Inasmuch as we have determined that Union
 Proposal 3 constitutes a negotiable procedure under section 7106(b)(2)
 of the Statute which does not directly interfere with any substantive
 management rights, the ambiguousness of the record in this regard is
 irrelevant.  Concerning Union Proposal 4, the Authority has determined
 above that it would directly interfere with management's right, under
 section 7106(b)(1), to determine the technology, methods and means of
 performing work.  Therefore, regardless of whether the proposal is
 intended as a procedure, it would be outside the duty to bargain.  On
 the other hand, assuming that the proposal is intended as an appropriate
 arrangement for employees adversely affected by the Agency's right to
 assign work, under section 7106(a)(2)(B), in connection with the
 implementation of its temporary program, the Authority finds as follows.
  The proposal would be inappropriate because it would completely negate
 the Agency's section 7106(b)(1) right to decide the means to be used in
 the accomplishment of its mission, rather than merely ameliorating the
 adverse affect on employees of the Agency's exercise of its right to
 assign work, under section 7106(a)(2)(B). See analysis of Proposal 2
 above.
 
                              C.  Conclusion
 
    The Agency has failed to demonstrate either that Union Proposals 3
 and 4 are inconsistent with an agency-wide regulation for which there is
 a compelling need, or that they violate applicable GSA Government-wide
 regulations.  Union Porposal 3 constitutes a procedure which management
 will observe in exercising its rights, under section 7106(b)(2) of the
 Statute, and does not concern matters negotiable only at the election of
 the Agency.  Union Proposal 4 concerns the technology, methods and means
 of performing work, under section 7106(b)(1).  Because the proposal
 directly interferes with the Agency's rights under section 7106(b)(1) of
 the Statute, it does not constitute a procedure within the meaning of
 section 7106(b)(2).  Moreover, it excessively interferes with the
 Agency's rights under section 7106(b)(1) and is not an appropriate
 arrangement under section 7106(b)(3).  Therefore for the reasons and
 cases cited in the foregoing analysis, Union Proposal 3 is within the
 duty to bargain and Union Proposal 4 is outside the duty to bargain.
 /3/
 
                           VI.  Union Proposal 5
 
          As far as possible case assignments will be made in the
       following manner:
 
          1.  Employees will be canvassed to determine their area or work
       preference.
 
          2.  Management will take into account the preference and any
       hardship reasons which dictate that preference.
 
          3.  In the case of 2 or more employees with the same preference
       and no overriding hardship reasons for that preference, the
       employee with the earliest service computation date shall be
       accommodated.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposal conflicts with management's
 right to assign work under section 7106(a)(2)(B) by substituting a
 "preference, hardship, and seniority test" for the discretion and
 judgment of management officials in determining which employee is to
 perform what work.
 
    The Union contends that the Agency has misinterpreted the proposal.
 
                               B.  Analysis
 
    According to the Union, the phrase "area of work" in the proposal
 refers to the geographical locations of the work to be performed and not
 to the actual work assignment.  Therefore, the Union interprets the
 proposal as constituting a procedure for the just and equitable
 assignment of geographical locations to employees.  Moreover, the Union
 argues that the phrase "as far as possible" guarantees that management
 retains the right to assign cases and would not prevent management from
 acting at all in the exercise of its right.
 
    The Authority finds no merit in the Union's contention that by
 interpreting the phrase "area of work" to mean the geographical
 locations of the work, the effect of the proposal is altered.  On the
 contrary, the proposal would have the effect of interfering with
 management's discretion, under section 7106(a)(2)(B), to determine the
 particular employees to whom work will be assigned.  The record
 indicates that the geographical locations of the work to be performed
 are determinative of the particular job assignments.  Therefore, if an
 employee has the right to choose the geographical location of the work
 to be done, management is precluded from assigning the employee to
 perform a particular job in a different geographical location.  See
 National Treasury Employees Union and Department of the Treasury, Bureau
 of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. NTEU v. FLRA, 691
 F.2d 553 (D.C. Cir. 1982).  Moreover, under the proposal, an arbitrator
 could overturn a manager's decision to assign work to a particular
 employee by concluding that the manager had not taken into account the
 factors specified in the proposal "as far as possible." Such a result
 would have the effect of directly interfering with management's right to
 assign work.  See, for example, American Federation of Government
 employees, Local 32, AFL-CIO and Office of Personnel Management, 19 FLRA
 No. 9 (1985) (Union Proposals 1, 2, and 3).
 
    For this reason, Union Proposal 5 is distinguishable from cases
 involving proposals which are negotiable because they concern the
 selection of individual employees to temporarily perform assigned work
 in different locations. In such cases, the decision as to where the work
 of a given position is to be performed is not, as it is here,
 determinative of the particular work to be assigned.  Compare American
 Federation of Government Employees, AFL- CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA 83, 86 (1981)
 (criteria for selecting which employee will temporarily perform
 previously assigned duties at a different location are within the duty
 to bargain).
 
    As with Union Proposals 1, 2, 3 and 4, the record fails to clearly
 indicate how this proposal is intended to operate as a procedure or an
 appropriate arrangement.  The proposal is not a procedure because it
 directly interferes with the Agency's right to assign work.  If the
 proposal is intended as an appropriate arrangement for employees
 adversely affected by the Agency's right to assign a particular employee
 to perform a particular job, the Authority finds that it could have the
 effect of eompletely abrogating that right.  Therefore, it excessively
 interferes with management's right to assign work so as to be
 inappropriate as an arrangement within the meaning of section 7106(b)(3)
 of the Statute.  See analysis in connection with Union Proposal 1 above.
 
                              C.  Conclusion
 
    The Authority concludes, for the reasons and cases cited in the
 foregoing analysis, that Union Proposal 5 directly interferes with
 management's right to assign work, under section 7106(a)(2)(B) of the
 Statute, and, therefore, does not constitute a procedure under section
 7106(b)(2).  The Authority also concludes that if the Union intends the
 proposal as an appropriate arrangement, it would excessively interfere
 with management's right to assign work, so as to be nonnegotiable under
 section 7106(b)(3). Therefore, Union Proposal 5 is outside the duty to
 bargain.
 
                                VII.  Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain concerning Union Proposal 3.
  /4/ Furthermore, IT IS ORDERED that the Union's petition for review as
 to Union Proposals 1, 2, 4 and 5 be, and it hereby is, dismissed.
 
    Issued, Washington, D.C. June 30, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The union's petition for review requested negotiability
 determinations on six proposals.  In its response to the Agency's
 statement of position, the Union withdrew its second proposal.
 Accordingly, it will not be considered further by the Authority here.
 
    (2) In making this negotiability determination, the Authority finds
 irrelevant whether, as asserted by the Agency, the document referred to
 in the proposal was ever intended to be mandatory or whether bargaining
 over the proposal would serve a "useful purpose."
 
    (3) Further, the Agency's contention that negotiations on Union
 Proposal 4 would be "meaningless" because the Agency is already
 voluntarily c