23:0273(36)NG - NTEU and Treasury, IRS -- 1986 FLRAdec NG
[ v23 p273 ]
The decision of the Authority follows:
23 FLRA No. 36 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE Agency Case No. 0-NG-1228 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 the underscored sentence of a single provision disapproved upon review by the Agency head under section 7114(c). II. Provision 5. Upon returning to duties once performed, employees participating in a rotation policy may request refresher training. Employees will also receive a reasonable amount of administrative time to become familiar with all relevant IRM changes, management memorandum, etc., that have been issued while performing other duties. /1/ III. Positions of the Parties The Agency concedes that employees are required as a part of thier jobs to familiarize themselves with the kinds of Agency directives, regulations and memoranda referred to in the provision. Agency Statement of Position at 3. The Agency argues nevertheless that the provision would violate management's right to assign work because it would require management to give employees time to review such materials without regard to whether there are other work assignments which management has determined should take priority. The Union contends that the provision does not interfere with management's right to assign work. The Union also argues that the provision is an appropriate arrangement under section 7106(b)(3) because, even if it does interfere with management's rights, that interference is not excessive. IV. Analysis and Conclusion A. Whether the Provision violates Management's Right to Assign Work The provision would require management to give employees who are returning to their regular jobs after a detail a reasonable amount of time to become familiar with job-related materials issued while they were on detail. The provision would thus require management to give priority to this aspect of employees' jobs over other assigned duties. In establishing such a priority among work assignments the provision has the same effect as the first paragraph of Union Proposal I in American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 4 FLRA 384, 385-86 (1980). Like that proposal, the provision here requires management to assign one type of work to employees to the exclusion of other duties which management may determine have a higher priority. For the reasons stated in U.S. Marshals Service, we find that the provision directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. In reaching this conclusion, we find, contrary to the Union's claim (Union Response to Agency Statement of Position at 7), that neither the language of the provision itself, nor of the agreement of which it is a part (Attachment 1 to Union Petition for Review), contains an "opt out" clause which permits management to deny employee requests for a reasonable amount of time where there is "just cause". B. Whether the Provision Constitutes an "Appropriate Arrangement" under Section 7106(b)(3) Even though we have found that the provision interferes with management's rights, we need not conclude that it is nonnegotiable if we also find that it is an "appropriate arrangement for employees adversely affected" by the exercise of management's rights. For the following reasons we find, in agreement with the Union, that the provision is within the duty to bargain because it does not excessively interfere with management's rights. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). The proposal is clearly intended to be an "arrangement" for employees adversely affected by the exercise of management's right to assign employees under section 7106(a)(2)(A). As the Agency acknowledges, employees are required to be familiar with all job-related directives, regulations, and memoranda. When employees are assigned away from their regular positions to entirely different jobs, they are not able -- nor do they need -- to study those materials. Upon return to their regular positions, employees will be handicapped in the performance of their duties if they are unfamiliar with instructions issued during their absence. The provision attempts to mitigate against that consequence by providing employees a "reasonable" amount of time to become acquainted with such job-related material. The remaining issue is whether the burden placed on management's right to assign work by requiring that employees be permitted a reasonable amount of time, at the possible expense of other duties, is excessive compared to the benefit to employees in having such time. We conclude that the benefits of the provision to employees -- and to management -- outweigh its effect on management's right to determine work priorities. As we have said elsewhere, management's right to assign work is reserved in the Statute in order to protect, among other things, management's ability to manage its workload. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA No. 29 (1986). The impact of the disputed provision on this management interest is insignificant. The provision provides for the assignment of tasks which are already a part of an employee's job responsibilities. It does not, therefore, require management to sacrifice employee worktime to activities or purposes which are unrelated to the accomplishment of the Agency's workload. Moreover, the provision does not prevent management from requiring employees to perform any part of their jobs. It would simply require management to afford employees time to prepare to do those tasks which involve job-related materials issued in their absence. At most it would merely delay the start of work by employees on those other tasks. And since the provision does not require management to grant employees an unlimited amount of time, but only so much as is reasonably necessary to become familiar with relevant materials -- a matter regarding which management thus retains some discretion -- any such delay would not be unduly burdensome on management's ability to accomplish its work. If employees did not have the time permitted by the provision, they would face the difficult task of performing the duties of their positions without having reviewed all the information necessary to perform those duties in accordance with current requirements. A reasonably foreseeable consequence of this situation is that employees will not perform as well as might otherwise be expected: they will not complete work as quickly or they will make more mistakes, for example -- all of which would detrimentally affect their performance evaluations, particularly in comparison with those employees who had not been detailed. This situation is not one for which employees are responsible, since the decision to detail is solely a matter of management discretion. Employees' job performance would likely be enhanced if time was provided to become familiar with the current requirements of their jobs upon return from a detail. Management's interest in getting the best quality work product as quickly as possible would be enhanced also. In this manner, the provision would contribute to, rather than detract from, the achievement of a more effective and efficient workforce. Taking all of these factors into account, we find that the burden imposed by the provision on management's right to assign work is insubstantial compared to the benefit to employees -- and, derivatively, to management -- afforded by the provision. We conclude, therefore, that the provision does not excessively interfere with management's right to assign work and is a negotiable "appropriate arrangement" under section 7106(b)(3) of the Statute. See also American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA No.92 (1986) (Union Proposal 3). V. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall rescind its disapproval of the disputed provisions. /2/ Issued, Washington, D.C., August 19, 1986. /s/ Jerry L. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) In its Statement of Position the Agency indicated that this is the express language of the proposal. The Union in its initial submission apparently had used the phrase "official time" instead of "administrative time." The Union's Response to the Agency's Statement of Position did not challenge the Agency's presentation of the proposal and thus the Authority has considered the proposal as stated above. (2) In finding that the provision is within the duty to bargain, the Authority makes no judgment as to the merits of the provision.