28:0040(11)NG - NTEU VS TREASURY, IRS



[ v28 p40 ]
28:0040(11)NG
The decision of the Authority follows:


28 FLRA NO. 11

NATIONAL TREASURY EMPLOYEES UNION

                   Union

      and

INTERNAL REVENUE SERVICE

                   Agency

Case No. O-NG-810
   17 FLRA 379

DECISION AND ORDER ON REMAND

I . Statement of the Case

This case is before the Federal Labor Relations Authority (Authority) because the United States Court of Appeals, District of Columbia Circuit remanded it for further proceedings regarding Proposal 2.

In the previous decision in this case, National Treasury Employees Union and Internal Revenue Service, 17 FLRA 379 (1985), the Authority held that the proposal was nonnegotiable because it interfered with the Agency's right to assign work under section 7106(a)(2)(B).

On appeal, the court found that the proposal did not violate the Agency's right to assign work and remanded the case for our consideration of the Agency's claims that "Proposal 2 was nonnegotiable because it directly interfered with its right to direct employees, 5 U.S.C. 7106 (a)(2)(A) (1982), and to determine the number and type of employees assigned to an organizational subdivision or work project, id. 7106(b)(1)." National Treasury Employees Union v. Federal Labor Relations Authority, 810 F.2d 1224, 1229-30 (D.C. Cir. 1987). 

II . The Proposal

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.

The Agency's Employee Plans (EP) Division is responsible for examining taxpayers' employee benefit plans for compliance with law. Most of the examination work requires the on-site presence of EP employees at the taxpayer's place of business. However, the Agency determined that some examinations of small employee benefit plans could be performed at an IRS District Office--an office examination--rather than at the taxpayer's place of business--a field examination.

To implement this change, the Agency proposed establishing the Office/Correspondence Examination Program. The proposal arose during negotiations concerning implementation of this Program which involves the use of two office examination techniques: 1) examination by interview with an authorized representative of the plan/trust at an IRS office or 2) examination by correspondence with the plan/sponsor. The proposal concerns the selection of employees who would perform these office examinations.

III . Positions of the Parties

A. The rights to assign and direct employees under section 7106(a)(2)(A)

The Agency contends that the proposal "would require management to give priority to union Chapter Presidents and Stewards in the assignment of employees from field examinations to the Office/Correspondence Examination Program.' Agency Statement of Position at 23. It argues that the proposal would eliminate the discretion which is inherent in the right to assign employees. "Management would be mandated to select a Union Chapter President or Steward assigned to field examinations before management could consider other employees for the assignment. . . . (M)anagement would be deprived of the discretion to consider the variety of factors which could be involved in determining which employees to assign to various positions." Agency Statement of Position at 24. In support of its position that proposals requiring management to exercise its reserved rights with respect to specific  employees are nonnegotiable, the Agency cites: American Federation of Government Employees, AFL - CIO, Local 3529 and Defense Contract Audit Agency, 3 FLRA 301 (1980) ; National Federation of Federal Employees, Local 1624 and Air Force Contract Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980) ; American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).

The Union contends that the duties or tasks of an audit are the same regardless of whether it is conducted at the taxpayer's place of business--a field audit--or at the IRS District Office--an office audit. It argues that employees performing field audits and office audits are covered by the same position description. In its view, the proposal concerns where the work of a given position will be performed and as such is no different from the proposal found negotiable in American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 5 FLRA 83 (1981). The Union also contends that if the proposal interferes with management's rights it does not do so to an excessive degree. The Union seeks to negotiate this proposal to lessen the impact of management's revised taxpayer audit practices on union representatives. The Union argues that, if union representatives are required to travel in the field to conduct audits at taxpayer's place of business, it would make it more difficult for unit employees to contact and consult with a union representative. Finally, it contends in the alternative that the proposal is a negotiable procedure as the "just cause" wording of the proposal has been widely accepted as a nonquantitative requirement by which actions taken by management pursuant to section 7106 can be evaluated in a grievance.

B. The right to determine the numbers, types and/or grades of employees assigned to an organizational subdivision or work project under section 7106(b)(1)

The Agency generally states without any supporting argument that the proposal interferes with its right to determine the types and grades of employees under section 7106(b)(1). Agency Statement of Position at 2.

The Union does not address this issue.

IV . Analysis and Conclusion

For the reasons which follow, we conclude that the proposal is within the duty to bargain.

A . An agency's right to direct employees

The Federal Service Labor - Management Relations Statute (the Statute) does not define the right to direct employees. In the absence of any indication that the phrase as used in the Statute has a meaning other than its ordinary meaning, the Authority determined that the right to direct employees means "to supervise and guide (employees) in the performance of their duties on the job." National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). The right to direct employees is exercised through supervising employees and determining the quantity, quality and timeliness of work production and establishing priorities for its accomplishment. See generally Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, Local 1760, AFL - CIO, 18 FLRA 437, 439-40 (1985) (deciding methods used to audit employees work); Tidewater Virginia Federal Employees Metal Trades Council and Navy Public Works Center, Norfolk, Virginia, 15 FLRA 343, 344 (1984) (requiring employees to account for their conduct and work performance); Bureau of the Public Debt, 3 FLRA at 776 (establishing critical elements and performance standards).

In our view, the proposal on its face does not concern directing employees within the meaning of section 7106(a)(2)(A). It does not involve supervising employees or determining the quantity, quality and timeliness of work production or establishing priorities for its accomplishment. Moreover, the Agency makes no showing in the record as to how this proposal relates to directing employees, and a relationship is not otherwise apparent to us. Hence, we find that the proposal does not interfere with management's right to direct employees.

B . An agency's right to assign employees

The right to assign employees means the right to decide the particular position to which an employee will be assigned. Air Force Logistics Command, Wright - Patterson Air Force Base, 2 FLRA at 613. But, where management determines it is necessary for some employees to perform the duties of their positions at a different location, the right to assign  employees is not involved. In those circumstances, consequently, a proposal does not violate section 7106(a)(2)(A) if it concerns which employee--of those who are assigned to the positions and have the required qualifications and skills--would do the work. See Wright - Patterson Air Force Base, 5 FLRA at 86-87. Whether the employees affected by such a proposal are union officials is not relevant in determining if it violates management's right to assign employees.

The cases cited by the Agency to support its position involved proposals which either prevented or required an agency to exercise its right to assign employees within the meaning of section 7106(a)(2)(A). In Defense Contract Audit, the agency had a mandatory policy of reassigning its auditors after they had completed a designated period of continuous assignment at a single location--apparently to avoid conflict of interest situations. Thus, the agency in effect made those reassignments a part of the auditor position requirements. The Authority held that the mandatory reassignment policy was a manifestation of management's right to assign employees to positions and that the proposal that management would not carry out the policy by reassigning employees violated section 7106(a)(2)(A). In Air Force Contract Management, the proposal required the agency to temporarily assign employees unable to perform their duties due to illness or injury to positions compatible with their physical conditions. The Authority held that the proposal required management to detail employees to particular types of positions and thereby violated section 7106(a)(2)(A).

Proposal 2 is distinguishable from the proposals involved in the cited cases. It does not prevent or require the exercise of an agency's right to assign employees within the meaning of section 7106(a)(2)(A). Thus, it only takes effect when the Agency has office/correspondence examinations to be performed, Agency Statement of Position at 17-18, and the "absent just cause" proviso allows the Agency to nonselect the Chapter President or Steward where workload and skill requirements warrant, Petition for Review at 2.

In our view, the heart of the matter concerns where certain employees will perform duties previously assigned to their positions. There is no indication in the record that these employees would perform duties other than those which the Agency had already assigned to their positions or that they are in any manner not qualified to perform the duties at the office, rather than the field, location. The Agency  states that "performance of the field and office audits . . . come within the position description of the employees at issue." Agency Statement of Position at 6 n.4. Accordingly, we find that the proposal is merely concerned with where--that is, at the Agency's district office or the taxpayer's place of business--the Chapter President or Steward will perform those duties previously assigned to their positions and does not violate the Agency's right to assign employees. See International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO Local 2 and Department of the Treasury, Bureau of Printing and Engraving, Washington, D.C., 25 FLRA No. 9, slip op. at 4 (January 9, 1987) (Provision 4) (provision relating to work areas--locations-- of union stewards where such employees would perform duties previously assigned to their positions did not violate an agency's right to assign employees).

C . The right to determine the numbers, types and/or grades of employees

An agency must establish a direct and integral relationship to sustain a claim that a proposal concerns an agency's staffing patterns so as to be bargainable only at the agency's election under the relevant provisions of section 7106(b)(1). That is, it must establish that a proposal is directly and integrally related to the numbers, types and/or grades of employees or positions assigned to an organizational subdivision, work project or tour of duty so as to be determinative of them. When a proposal does not explicitly relate to the numbers, types and/or grades of employees assigned--as in the present case--it is incumbent upon an agency to support its allegation that section 7106(b)(1) applies to that proposal. See National Treas Employees Union, Chapter 66 and Internal Revenue Service Kansas City Service Center, 1 FLRA 927, 9 8-30 (1979). See also American Federation of Government Employees, Local 2094, AFL - CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA No. 81, slip op. at 13-14 (July 24, 1986) (agency did not establish a connection between section 7106(b)(1) and a proposal concerning employees receiving three days off after working five consecutive days).

The proposal does not explicitly relate to the Agency's staffing pattern, and the Agency has not established in the record that the proposal is in any manner directly and integrally related to the numbers, types and/or grades of employees assigned. The Agency merely makes an unsupported assertion that the proposal involves management's decision to select employees to perform office examinations and thereby interferes with its right to determine the types and grades of employees assigned to an organizational subdivision or work project. Agency Statement of Position at 2. Further, the proposal on its face has a limited scope. It only concerns giving certain employees a narrow option as to the location at which they will perform their regular duties, unless there is just cause for the Agency to override their choice. see American Federation of Government Employees, AFL - CIO, Local 1622 and Department of the Army, Fort Meade, Maryland, 4 FLRA 480, 482-83 (1980) (proposal's "just cause" proviso would not prevent agency from reducing employee's hours of work but would simply provide a general nonquantitative contractual requirement by which management's decision could be evaluated in a subsequent grievance). Therefore, in our opinion, the Ag