32:0886(128)NG - - NTEU, Atlanta, GA and Treasury, IRS, Jacksonville District - - 1988 FLRAdec NG - - v32 p886
[ v32 p886 ]
The decision of the Authority follows:
32 FLRA No. 128
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL TREASURY EMPLOYEES UNION
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
Case No. 0-NG-1513
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 presents the issue concerning the negotiability of one proposal. The proposal would prevent the Agency from moving two employees, who were reassigned to the Special Procedures function as a result of a reorganization, from its Phillips Highway office to its Federal Building office.
We find that the proposal is outside the duty to bargain because it conflicts with the Agency's right under section 7106(a)(1) of the Statute to determine its organization.(*)
The Special Procedures function is part of the Agency's Collection Division and deals with various aspects of tax collection. Before 1983, "offer-in-compromise" work was assigned to Revenue Officer Advisor Reviewers in the Special Procedures function. "Offer-in-compromise" work involves procedures whereby taxpayers may voluntarily offer a sum of money and other considerations in settlement of outstanding liabilities when there is doubt as to the liability and/or the collectibility of taxes.
After 1983, this work was transferred to a "separate group" which was not part of the Special Procedures function. Union's Petition for Review at 2. Also transferred to this "separate group" were several Special Procedures function employees and a new supervisor. Additionally, the location of the group was moved from the Agency's Federal Building office to the Phillips Highway office, about 4 miles away.
In September 1987, the Agency announced plans to reorganize the Special Procedures function. As part of the planned reorganization, two "offer-in-compromise" specialists' positions assigned to the separate group were to be reassigned into the Special Procedures function. Also, the duty stations of the two offer-in-compromise specialists were to be moved from the Agency's Phillips Highway office to its Federal Building office. The Union met with the Agency in January 1988, and proposed that the Phillips Highway office continue to be the duty station for the two offer-in-compromise specialists. The Agency alleged that the proposal was nonnegotiable.
Revenue Officies [sic] offer-in-compromise specialists shall continue to be stationed at the Phillips Highway office.
A. Positions of the Parties
As stated by the Union, the Agency contends that the proposal is nonnegotiable because it would interfere with: (1) management's right under section 7106(a)(1) of the Statute to determine its organization; (2) management's right under section 7106(a)(2)(A) to assign employees; and (3) an effective and efficient Government.
The Union states that its proposal is intended to allow the two specialists to continue to report to work at the Phillips Highway office as long as the Agency maintains that office as a post of duty. The Union contends that the proposal does not violate management's right to determine its organization. It asserts that the "proposal neither intends nor requires the maintenance of the Phillips Highway, or any other, office." Union's Reply at 2-3. The Union also asserts that its proposal would not interfere with management's modification of the existing organizational structure of the Collection Division.
Further, the Union contends that its proposal does not interfere with management's right to assign employees. The Union asserts that its proposal is not intended to determine who shall perform offer-in-compromise work or what that work shall be. Finally, the Union contends that its proposal does not conflict with efficient or effective Government.
The proposal is outside the duty to bargain because it conflicts with the Agency's right under section 7106(a)(1) of the Statute to determine its organization.
As part of the Agency's reorganization, the Agency intended to change the location of two offer-in-compromise specialists within its organization. The Agency determined that these positions should be reassigned to its Special Procedures function, which is located in the Federal Building. The effect of the proposal is to require the Agency to keep the offer-in-compromise specialists at the Phillips Highway location and maintain an office there for its Special Procedures function.
The right of an agency under section 7106(a)(1) to determine its organization includes the right to determine its administrative or functional structure. General Services Administration and American Federation of Government Employees, AFL-CIO, National Council 236, 27 FLRA 3 (1987). The right also encompasses the right of an agency to determine where official duty stations of organizational units and positions in those units shall be established and maintained. See an Federation of Government Employees, AFL-CIO, Local 3805 and Federal Home Loan Bank Board, Boston District Office, 5 FLRA 693 (1981) (finding nonnegotiable a proposal that would have prevented an agency from eliminating duty stations insofar as incumbent bank examiners were concerned).
In National Treasury Employees Union, Chapter 55 and Internal Revenue Service, Columbia District, Columbia, South Carolina, 15 FLRA 820 (1984), the Authority determined that four proposals requiring the agency to assign particular employees to specific posts-of-duty would have prevented the agency from closing or consolidating certain duty stations pursuant to the planned reorganization of its Collection Division. The planned reorganization was to result in the consolidation of revenue officer groups and the reassignment of employees from one group to another. The Authority found that those proposals were inconsistent with the agency's right to determine its organization under section 7106(a)(1) of the Statute.
Proposal 3 in Internal Revenue Service, Columbia District is similar to the proposal in this case. Proposal 3 required the agency to reassign five employees from the Spartanburg to the Greenville group. It also required that the employees remain physically located in the Spartanburg office. Proposal 3 and the proposal in this case both resulted from agency reorganization plans that would have moved positions from one organizational unit to another and the work of those positions from one post of duty to another. Proposal 3 in Internal Revenue Service, Columbia District required that the employees who were transferred to a different revenue officer group be permitted to remain at their current work station, even though the work of their positions was no longer performed at that work station. Similarly, the proposal in dispute in this case would permit the offer-in-compromise specialists to remain at the Phillips Highway Office even though the work of their positions has been transferred to the Special Procedures function which is located in the Federal Building.
In Internal Revenue Service, Columbia District, the Authority found that the decision to transfer employees from one revenue officer group to another and, pursuant to that transfer, to move the work of those employees' positions from one location to another constituted an exercise of management's right to determine its organization under section 7106(a)(1). Consequently, the Authority concluded that Proposal 3, by precluding the agency from moving the employees' work location, interfered with management's right to establish its organizational structure and was nonnegotiable. The proposal in the instant case would likewise preclude management from moving the work of employees' positions from one location to another. Therefore, consistent with Internal Revenue Service, Columbia District, we find that the Union's proposal is inconsistent with management's right to determine its organization under section 7106(a)(1) of the Statute and is outside the duty to bargain.
This case is distinguishable from the Authority cases cited by the Union in which proposals concerning "where" employees will perform their work were found to be negotiable. See, for example, National Employees Treasury Union and Internal Revenue Service, 28 FLRA 40 (1987) (proposal concerned with where employees would perform duties did not violate an agency's right to assign employees); International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987) (Provision 4) (provision relating to work areas or work locations of union stewards did not violate an agency's right to assign employees where employees would perform duties previously assigned to their positions).
Those cases did not involve any change in the organizational units of the agency. The employees in those cases continued to perform their duties in the same organizational unit. Even though the proposals or provisions in those cases would have permitted employees to work at one location rather than another, the agency had determined that the work of their positions could be performed at either location. In this case and in Internal Revenue Service, Columbia District, because of a reorganization, the work of employees' positions was no longer being performed at the locations required by the proposals.
This case involves more than a change in where employees will perform work; it involves a change in the Agency's functional structure by the reassignment of its offer-in-compromise specialists from one organizational unit to another. The critical factor in deciding the issue in this case is that there was a change in the organizational units to which the offer-in-compromise specialists' positions were assigned, and as a consequence, a change of the location in which the work of those positions is performed. Contrary to the Union's argument, this is not a case in which the Agency has determined that the work of employee positions may be performed at more than one location and the only issue is at which location an employee will work. See National Treasury Employees Union and U.S. Customs Service, Northeast