29:0348(38)NG - NTEU, CHAPTER 22 VS TREASURY, IRS



[ v29 p348 ]
29:0348(38)NG
The decision of the Authority follows:


29 FLRA NO. 38

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 22

                         Union

    and

DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE

                         Agency

Case No. 0-NG-1240

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

The petition for review in this case comes 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). The disputed proposals concern detailing Philadelphia District bargaining-unit employees to work on Philadelphia Service Center (PSC) adjustments and to work on problem resolution program (PRP) cases. The issue before us is the negotiability of 10 proposals concerning PSC details and 9 proposals concerning PRP details. 1 To the extent that the proposals are duplicative, our decision consolidates them. The Agency makes several contentions with respect to the proposals including a contention that all proposals relating to actions which management takes during emergencies are nonnegotiable. We will deal with that general contention before analyzing the remaining contentions as to specific proposals.

II. Management's right under section 7106(a)(2)(D) to take whatever actions may be necessary to carry out the agency mission during emergencies 

A. Positions of the Parties

The Agency argues that it ordered the details because the Agency's workload in the service center on adjustments and program cases had reached a crisis stage so as to constitute an "emergency" within the meaning of section 7106(a)(2)(D). It maintains that all proposals relating to the emergency actions are nonnegotiable. The Union contends in general that the proposals are negotiable.

B. Analysis and Conclusions

There is no support for the position of the Agency that all proposals which relate in any way to agency actions taken to carry out the agency mission during emergencies are necessarily nonnegotiable under section 7106(a)(2)(D). To the contrary, the decisions of the Authority in this area, consistent with our decisions concerning other management rights under section 7106, indicate that only proposals which either directly interfere with agency action or prevent the agency from taking the emergency action are inconsistent with section 7106(a)(2)(D) and, therefore, nonnegotiable. See Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686, 689 (1984). Consequently, in American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, 15 FLRA 825 (1984) (Proposal 2), the Authority held that a proposed procedure which did not prevent the agency from taking emergency action under section 7106(a)(2)(D) was negotiable. Moreover, applying these principles in this case, the Agency has not even attempted to show that any of these proposals would prevent it from dealing effectively with its workload problems which the Agency believes constitute an emergency. In particular, the Agency has made no showing that any of the proposals, in the language of section 7106(a)(2)(D), "affect the authority of any management official . . . to take whatever actions may be necessary . . . during emergencies." See Office of Personnel Management. Accordingly, we find that none of the proposals conflict with section 7106(a)(2)(D) and this contention will not be further considered in determining whether specific proposals are within the duty to bargain.

III. PSC and PRP Proposal 1

The District shall select employees for these details by either following the competitive  procedures of the NORD Agreement or by the following:

(c) No employee above a grade GS-9 will be detailed.

(d) Employees currently in a training program shall not be detailed.

(e) Employees who were detailed to T/PS (Taxpayer Service), P.R.P. (Problem Resolution Program) or PSC (Philadelphia Service Center) for 60 days or more during the calendar year 1985 will not be involuntarily detailed.

PSC Proposal 2

No employee shall be assigned work at a level that is more than two (2) grades below their current grade level.

PSC Proposal 3 and PRP Proposal 2

Employees will not be required to work at a location other than their assigned POD (post of duty).

A. Positions of the Parties

The Agency contends that these proposals are inconsistent with its right to assign work under section 7106(a)(2)(B). The Union disagrees.

B. Analysis and Conclusions

It is well established that management's right to assign work is comprised of two elements: (1) the particular duties and work to be assigned; and (2) the particular employees to whom, or positions to which, the work will be assigned. 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). In this case, Proposal 1(c) would prohibit the Agency from assigning an employee who is above the grade of GS-9 to the details; Proposal 1(d) would preclude the Agency from assigning to the detail an employee currently in a training program; and Proposal 1(e) would ban the Agency from  involuntarily assigning to the details an employee who has been previously detailed for more than 60 days to Taxpayer Service, the Philadelphia Service Center, or the problem resolution program. PSC Proposal 2 would prohibit the Agency from assigning work to an employee that is more than two grade levels below the employee's current grade level. PRP Proposal 2 and PSC Proposal 3 would preclude the Agency from requiring an employee to work at a location other than the assigned post of duty. Each of these proposals would restrict the Agency in either the particular duties and work to be assigned or the particular employees to whom, or positions to which, work will be assigned. Thus, the proposals directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and are outside the duty to bargain.

IV. PSC Proposal 4 and PRP Proposal 3

No detailed employee will be required to meet or maintain a production standard or quota.

A. Positions of the Parties

The Agency maintains that these proposals are inconsistent with its right to direct employees under section 7106(a)(2)(A) because it precludes the Agency from requiring that employees on detail meet and maintain a production standard or quota. The Union disagrees.

B. Analysis and Conclusions

We conclude that these proposals are nonnegotiable. They conflict with management's right to direct employees and to assign work by interfering with the ability of the Agency to review and evaluate the performance by detailed employees of assigned duties. By the language of the proposals, no employee on detail could be required to meet or maintain a production standard or quota. consequently, the proposals directly interfere with the right of the Agency to direct employees and to assign work because they would preclude the Agency from establishing a production standard or quota for detailed employees in order to evaluate their performance. See National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522, 530-31 (1981) an Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, Local 1760, AFL - CIO, 18 FLRA 437, 440 (1985). Thus, these proposals are not within the duty to bargain under the Statute. 

V. PCS Proposal 5 and PRP Proposal 4

The Authority Members have expressed different opinions concerning these proposals. The decision and order on PSC Proposal 5 and PRP Proposal 4 and Chairman Calhoun's dissenting opinion immediately follow this decision.

VI. PSC Proposal 7

Employees detailed shall receive temporary promotions for any pay period in which they are performing 50% or more of their time on higher-grade work.

PSC Proposal 8 and PRP Proposal 6

Employees detailed shall receive Special Act Awards which are no less than 5% of the employee's annual salary.

PSC Proposal 9 and PRP Proposal 7

The District shall take appropriate actions so that employees in the "use or lose" leave category do not lose leave.

A. Positions of the Parties

The Agency contends that there is no duty to bargain at the local level over these proposals because the issues are covered by the controlling national agreement. The union disagrees.

B. Analysis and Conclusions

Other than the general contention already considered and rejected concerning section 7106(a)(2)(D), the Agency's only basis for its allegation that these specific proposals are nonnegotiable concerns the application of the parties' national collective bargaining agreement. To the extent that there are issues in dispute between the parties which do not concern the negotiability of a proposal, that is, whether it is consistent with applicable law, rule or regulation but, instead, concern whether there is a duty to bargain in the particular circumstances, those issues should be raised in other appropriate proceedings. See American Federation of Government Employees, AFL - CIO, Local 2736 and  Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984). However in view of the Agency's general contention of nonnegotiability based on section 7106(a)(2)(D), we turn to the substance of the proposals.

PSC Proposal 7 provides that employees detailed will receive temporary promotions for any pay period in which they are performing 50 percent or more of their time on higher-grade duties. In a number of arbitration cases, the Authority has indicated that under Federal personnel law, an employee properly may be entitled to a temporary promotion for performing the duties of a higher-grade position for an extended period of time. See, for example, Veterans Administration Medical Center, Nashville, Tennessee and American Federation of Government Employees, Local No. 2400, 19 FLRA 325 (1985). However, the Authority has emphasized that the entitlement must be based on a provision of a collective bargaining agreement or an agency regulation making a temporary promotion mandatory for details to, or the performance of the duties of, a higher-grade position after a specified period of time. VA Medical Center Nashville, Tennessee, slip op. at 2-3. We find that consistent with law, PSC Proposal 7 merely seeks to include in the parties' collective bargaining agreement the provision that is necessary to entitle an employee to a temporary promotion when performing the duties of a higher-grade position for the specified amount of time. Consequently, PSC Proposal 7 is within the duty to bargain.

PSC Proposal 8 and PRP Proposal 6 provide that all employees detailed will receive a Special Act Award which is no less than 5 percent of the employee's annual salary. The provisions of 5 C.F.R. part 451, subpart A provide agencies with discretion to grant superior accomplishment awards for special acts where employees have made valuable contributions to the Government. Consequently, because the Agency has discretion in granting these types of awards, there is no basis in law, including management rights, or regulation to find these proposals nonnegotiable. Accordingly, PSC Proposal 8 and PRP Proposal 6 are within the duty to bargain.

PSC Proposal 9 and PRP Proposal 7 provide that the Agency shall take appropriate actions so that employees in the "use or lose" leave category do not lose leave. Unlike Union Proposal 4 in American Federation of Government Employees, AFL - CIO, Local 2263 and Department of the Air Force, Headquarters, 1606 Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580, 583-84 (1984), these proposals do not restrict the Agency's right to disapprove leave requests which conflict with its work requirements. The proposals only require appropriate action on the part of the Agency. This appropriate action could be the carryover of "use or lose" leave into the next calendar year so that the employee does not lose the leave. Moreover, Federal Personnel Manual chapter 630 generally subjects leave matters to administrative discretion. Consequently, PSC Proposal 9 and PRP Proposal 7 are within the duty to bargain.

VII. PSC Proposal 6 and PRP Proposal 5

Employees selected for detail may continue their AWS (alternative work schedule) schedules.

PSC Proposal 10 and PRP Proposal 8

Employees whose details cause them to work around any holiday, e.g. Thanksgiving, Chanukah, Christmas, New Year, etc. will be granted liberal leave if requested.

PRP Proposal 10

Since management unilaterally selected and required employees from PODs to work in (Philadelphia) commencing 11/25/85, all travel and transportation expenses incurred by these employees to get to the HQ office will be paid by IRS.

A. Positions of the Parties

The Agency contends that no duty to bargain exists because the parties are in agreement on the substance of these proposals. The Union claims that the proposals are negotiable.

B. Analysis and Conclusions

As indicated above, in a negotiability appeal we only decide issues of whether a proposal is consistent with applicable law, rule, or regulation. The Agency's claim that these proposals concern matters which are not negotiable because the parties are in agreement as to their substance is not a basis for finding the proposals nonnegotiable. However, again, in view of the Agency's general contention of nonnegotiability based on section 7106(a)(2)(D), we turn to the substance of the proposals.

In American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 Air Base Wing, Lowry AFB, Colorado, 23 FLRA No. 107 (1986), we held that under the Federal Employees Flexible and Compressed Work Schedules Act of 1982, the only issues relating to alternate work schedules (AWS) which the Authority may process under section 7117(c) are whether an AWS proposal is inconsistent with the 1982 Act, itself, or with other laws superseding the 1982 Act. Therefore, we found in Lowry AFB that issues as to the negotiability of the proposed alternate work schedules in that case under sections 7106 and 7117 of the Statute were not properly before us. Slip op. at 2-3. Similarly, to the extent that the Agency may object to the establishment of the alternate work schedules contemplated by PSC Proposal 6 and PRP Proposal 5 on the grounds that the schedules conflict with management rights, the Agency's position cannot be sustained. Therefore, PSC Proposal 6 and PRP Proposal 5 are within the duty to bargain.

PSC Proposal 10 and PRP Proposal 8 require that employees whose details cause them to work around any holiday, e.g., Thanksgiving, Chanukah, Christmas, etc., will be granted liberal leave if requested. These proposals require the Agency to grant leave to employees whenever requested by employees without regard to the Agency's work requirements. Consequently, the proposals restrict the Agency's right to disapprove leave requests which conflict with its work requirements and are nonnegotiable as contrary of its right to assign work. Kirtland Air Force Base, New Mexico, 15 FLRA 580, 583-84.

The Authority has consistently determined that proposals requiring reimbursement for commuting expenses are inconsistent with Federal law. 5 U.S.C. 5704. National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 9 FLRA 726 (1982) and American Federation of Government Employees, AFL - CIO, Council 236 and General Services Administration, 9 FLRA 825 (1982) (Proposal 3). To the extent that PRP Proposal 10 requires payment by the Agency of travel expenses for employees commuting between their residence and post of duty, it is nonnegotiable because it is contrary to law. Id. However, to the extent that PRP Proposal 10 provides that the Agency pay travel and transportation expenses for employees to get from their  official post of duty (POD) to their detailed work site in Philadelphia, it is not contrary to law and it is within the duty to bargain provided the expenses are within the monetary limitation of the travel regulations. See 55 Comp. Gen. 1323, 1328 (1976). However, since the parties have not made the meaning of the proposal clear and it is not apparent from its wording, the proposal does not set forth specific and sufficient information to enable us to reach a reasoned determination on its negotiability under law and regulation. Accordingly, the petition for review of PRP Proposal 10 does not meet the conditions for review prescribed in section 7117(c) of the Statute and section 2424.1 of our Rules and Regulations. See Fort Knox Teachers Association and Fort Knox Dependents Schools, 27 FLRA No. 80 (1987) (proposal 1). The Union's petition for review of PRP Proposal 10 will be dismissed.

VIII. PRP Proposal 9

Employees selected for detail shall be relieved of their currently assigned work.

PSC Proposal 11

Employees selected for detail shall be relieved of their currently assigned work. Work of employees selected for detail shall be distributed to other employees, if distributed at all, in a fair and equitable manner. At the conclusion of the details, work assigned to the employees shall be assigned in a fair and equitable manner. Employees shall not be responsible for any work over which they had no control due to the detail.

A. Positions of the Parties

The Agency declared both of these proposals nonnegotiable because they conflict with the right to assign work under section 7106(a)(2)(B). The Agency specifically argues that PSC Proposal 11 is nonnegotiable to the extent that it provides for the manner of distributing the work of employees who are detailed and the manner of assigning work to them when they return from detail. Statement of position at 5.

B. Analysis and Conclusions

We find that PRP Proposal 9 and the first sentence of PSC Proposal 11 are nonnegotiable. Without regard to the [ fact that the Agency agrees with the substance of the proposal, we find that by prohibiting management from assigning to detailed employees any duties or work associated with their current inventory of work at the time of the detail, PRP Proposal 9 and the first sentence of PSC Proposal 11 directly interfere with management's right to assign work and are outside the duty to bargain. The fact that management in the exercise of its reserved discretion determines to relieve employees of certain work, in accordance with the thrust of the Union's proposal, has no bearing on whether the proposals are within the duty to bargain.

The second and third sentences of PSC Proposal 11 concern a fair and equitable manner of distributing to other employees the work of employees who are detailed and of assigning work at the conclusion of the detail. They do not restrict the assignment of work to employees by prescribing substantive criteria which management must follow in exercising its right. They also do not limit the Agency's discretion to determine the qualifications and skills needed to do the work or to determine such job-related individual characteristics as judgment and reliability. Rather, these sentences establish procedures pursuant to section 7106(b)(2). Consequently, this portion of the proposal does not conflict with the Agency's right to assign work under section 7106(a)(2)(B), and it is therefore within the duty to bargain. See American Federation of Government Employees, National Council of Social Security Payment Center Locals and Social Security Administration, Office of Program Service Center, Baltimore, Maryland, 7 FLRA 818, 819-20 (1982) and National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District Office, 1 FLRA 897 (1979).

Finally, we find that the last sentence of PSC Proposal 11 is nonnegotiable. By specifically providing that an employee "shall not be responsible," the sentence is to the same effect as Proposal 2 in American Federation of Government Employees, Local 32, AFL - CIO and Office of Personnel Management, 26 FLRA No. 55 (1987). That proposal was found nonnegotiable because in the described circumstances the employees were not to be "penalized" in their performance evaluations. We found that by absolutely insulating employees from adverse evaluations, the proposal conflicted with management's right to assign work and direct employees under section 7106(a)(2)(A) and (B). In a like manner, the last sentence of PSC Proposal 11 absolutely insulates employees from responsibility for their work in the described circumstances. Accordingly, we find that the sentence conflicts with section 7106(a)(2)(A) and (B) and is outside the duty to bargain.

IX. Order

The Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Psc Proposals 6-9 and the second and third sentences of 11, and bargain concerning PRP Proposals 5 and 7. 2 The Union's petition for review is dismissed as to PSC Proposals 1(c)-l(e), 2-4, 10, and the first and fourth sentences of 11, and is dismissed as to PRP Proposals 1(c)-l(e), 2, 3, and 8-10.

Issued, Washington, D.C., September 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

DECISION AND ORDER ON PSC PROPOSAL 5 AND PRP PROPOSAL 4

PSC Proposal 5 and PRP Proposal 4 Appropriate training will be provided to all detailees.

A. Positions of the Parties The Agency contends that there is no duty to bargain at the local level over these proposals because the issues are covered by the controlling national agreement. The union disagrees.

B. Analysis and Conclusions

Other than the general contention already considered and rejected concerning section 7106(a)(2)(D), the Agency's only basis for its allegation that these specific proposals are nonnegotiable concerns the application of the parties' national collective bargaining agreement. To the extent that there are issues in dispute between the parties which do not concern the negotiability of a proposal, that is, whether it is consistent with applicable law, rule or regulation but, instead, concern whether there is a duty to bargain in the particular circumstances, those issues should be raised in other appropriate proceedings. See American Federation of Government Employees, AFL - CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984). However, in view of the Agency's general contention of nonnegotiability based on section 7106(a)(2)(D), we turn to the substance of the proposals.

PSC Proposal 5 and PRP Proposal 4 would require that appropriate training will be provided to all detailees. We find these proposals are like Proposal 6 in Internal Revenue Service, Washington, D.C. and Internal Revenue Service Denver District, Denver, Colorado, 27 FLRA No. 77 (1987), which we found was a negotiable appropriate arrangement for employees adversely affected by details. Consequently, for the same reasons, we find that PSC Proposal 5 and PRP Proposal 4 are negotiable as appropriate arrangements under section 7106(b)(3). See American Federation of Government Employees, Local No. 12 and U.S. Department of Labor, 25 FLRA No. 83 (1987) (when the adverse effect on employees is clear, we will consider the negotiability of proposals under section 7106(b)(3)). 

C. Order

The Agency must on request (or as otherwise agreed to by the parties) bargain concerning PSC proposal 5 and PRP Proposal 4. 3

Issued, Washington, D.C., September 30, 1987.

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

Separate opinion of Chairman Calhoun

PSC Proposal 5 and PRP Proposal 4 provide that "Appropriate training will be provided to all detailees." My colleagues conclude that these proposals are like Proposal 6 which was found to be negotiable as an appropriate arrangement in Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Denver District, Denver, Colorado, 27 FLRA No. 77 (1987). I disagree with their conclusion. In that unfair labor practice case, the Authority noted that (1) the work to be performed by employees during their details differed from the work they usually performed, and (2) the agency had recognized this fact by providing 2 weeks' training for the detailees. Accordingly, the Authority concluded that "(i)n these circumstances . . . the proposal does not excessively interfere" with the agency's right to assign work.

In the instant case, there is nothing in the record describing the work performed by the detailees. The Union's submission--the Union did not file a response--states only that the proposals result from impact and implementation negotiations over the detailing of "Philadelphia District Internal Revenue Service employees to work on Service Center adjustment cases and Problem Resolution Program (PRP) cases." Similarly, the Agency's statement of position does not address the nature of the work performed by the detailees and, with respect to these particular proposals, the Agency maintains only that they concern a subject matter which has already been negotiated between the parties.

My colleagues cite as support for their conclusion the Authority's decision in American Federation of Government Employees, Local 12 and U.S. Department of Labor, 25 FLRA No. 83 (1987), and note the Authority's holding in that case that the negotiability of proposals as appropriate arrangements would be considered where the adverse effects on employees were "clear." Id. slip op. at 3. The proposals in that case involved reductions in force and indeed, the adverse effects were clear. Unlike that case, however, there is no support in the record of this case for a finding that there are any, much less clear, adverse effects. As a result, I am unable to conclude that these proposals constitute appropriate arrangements.

Issued, Washington, D.C., September 30, 1987.

Jerry L. Calhoun, Chairman

FEDERAL LABOR RELATIONS AUTHORITY 

 

FOOTNOTES

Footnote 1 The agency has withdrawn its allegation of non-negotiability as to Proposals 1(a) and 1(b) concerning both the PSC and the PRP details. Therefore, the dispute as to those proposals has been rendered moot and they will not be considered further.

Footnote 2 In finding these proposal