36:0070(7)NG - - NTEU Chapter 12 and Treasury, IRS, Birmingham, AL - - 1990 FLRAdec NG - - v36 p70



[ v36 p70 ]
36:0070(7)NG
The decision of the Authority follows:


36 FLRA No. 7

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 12

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

BIRMINGHAM, ALABAMA

(Agency)

0-NG-1759

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 18, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of two proposals relating to performance appraisals. The Union submitted the proposals following a reorganization of the Collection Division which resulted in employees working in the Dothan, Alabama office being supervised by the group manager in the Mobile office instead of the group manager in the Montgomery office. The Union did not file a response to the Agency's Statement of Position.

For the following reasons, we find that Proposal 1, which requires that a particular supervisor evaluate employees, directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. We find that Proposal 2, which precludes a particular manager from evaluating employees affected by the reorganization for 90 days after the reorganization, also directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Therefore, the petition must be dismissed.

II. Proposals

Proposal 1:

If Dothan is to move ... [t]wo evaluations to be done by Sam Davis;

Proposal 2:

If Dothan is to move ... [n]o Work Load Reviews or evaluations by Dixon for 90 days.

III. Positions of the Parties

A. Agency

The Agency asserts that the proposals interfere with management's rights under section 7106(a)(2)(A) and (B) of the Statute to assign work, direct employees, and "conduct performance appraisals." Statement of Position at 2. The Agency contends that both proposals would prevent the group manager in the Mobile office from evaluating reassigned employees for at least 90 days after the reorganization.

The Agency argues that Proposal 1 would "eliminate the discretion the Agency has to assign work" by requiring the Agency to have a particular individual evaluate employees. Id. at 4. The Agency asserts that the new manager "is viewed by some as a tougher evaluator" than the former manager, and that Proposal 1 is designed to "make it more difficult for [the new manager] to possibly give . . . employees lower evaluations in the future." Id. at 2. The Agency contends that Proposal 2 would insulate employees from being evaluated for 90 days, and would prevent the Agency from evaluating how well the reassigned employees adjust to working under a new manager. The Agency maintains that the proposals are not negotiable procedures under section 7106(b)(2), and that the Union has not established that the proposals are negotiable appropriate arrangements under section 7106(b)(3).

In addition, the Agency argues that the parties' master agreement bars local negotiations concerning which manager will evaluate employees. According to the Agency, Article 12, Section 4 of the master agreement requires evaluations to be made by employees' immediate supervisors.

The Agency contends that Proposal 1, which requires a manager other than the immediate supervisor to evaluate the Dothan employees, is inconsistent with the agreement.

Finally, the Agency asserts that the Union did not serve the Agency head with the petition for review. The Agency contends that until the Union serves the Agency head or his designee, as required by the Authority's Regulations, the Authority should suspend action on the petition. Id. at 5.

B. Union

The Union did not file a reply brief. The Union's position is taken from the petition for review.

The Union asserts that the proposals are to "assure that fair performance evaluations will be given to employees affected by a reorganization." Petition for Review at 1. The Union argues that the two employees affected by the reorganization of the Agency's Collection Division "would have the benefit of being evaluated by the Montgomery office manager instead of the 'new' Mobile office manager; and that none of the affected employees would have interim Work Load Reviews or other evaluations performed by the 'new' Mobile office manager until they had worked under the restructured system for ninety (90) days." Id.

IV. Procedural Matter

On October 18, 1989, the Authority issued an Order notifying the Union that its petition for review did not comply with the Authority's Regulations, set forth in 5 C.F.R. ºº 2424.4(b), 2429.27(b), and 2429.27(c), requiring service on the Agency head or his designee. The Order required the Union to file a certificate of service which complied with the Authority's Regulations by November 1, 1989. The Union filed a certificate of service with the Authority on October 31, 1989, stating that the petition had been served on the Agency head's designee. Consequently, the petition is appropriate for consideration.

V. Analysis and Conclusion

A. Proposal 1

In National Federation of Federal Employees, Local 943 and Department of the Air Force, Keesler Air Force Base, Mississippi, 16 FLRA 313 (1984) (Keesler AFB), the Authority held to be nonnegotiable a proposal which required that employees receive a performance appraisal from a supervisor located at the employees' worksite. The Authority found that the proposal dictated to the agency which supervisors would be assigned the function of appraising employees and, therefore, violated management's right to assign work under section 7106(a)(2)(B) of the Statute.

Proposal 1 would mandate that a particular individual be assigned the task of evaluating employee performance. Accordingly, Proposal 1 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See Keesler AFB. See also National Treasury Employees Union and Department of the Treasury, 21 FLRA 1051 (1986) (Provisions 2, 3, 4, and 5) (finding nonnegotiable portions of provisions designating a particular supervisor to evaluate an employee's performance). As Proposal 1 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute, it thereby does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. See American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710, 713 (1986) (VAMC, New York, N.Y.), aff'd sub nom. American Federation of Government Employees, AFL-CIO, Local 2094 v. FLRA, 833 F.2d 1037, 1043 (D.C. Cir. 1987) (proposal which directly interferes with the excercise of an agency's substantive management rights is not a negotiable procedure).

Proposal 1 directly interferes with the Agency's right to assign work. Because the Union does not assert, or otherwise establish, that Proposal 1 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, it is unnecessary for us to address the Agency's argument the the proposal is not an appropriate arrangement under section 7106(b)(3). Accordingly, Proposal 1 is nonnegotiable.

B. Proposal 2

Proposal 2 would preclude a particular manager from evaluating employees affected by the reorganization for the initial 90 days after the reorganization. That is, in order to evaluate the reassigned employees within 90 days of their reassignment, management would be required to assign this task to an individual other than the new manager.

As noted previously, proposals which require an agency to assign particular tasks to particular individuals directly interfere with the agency's right to assign work. Likewise, proposals which preclude an agency from assigning particular tasks to particular individuals directly interfere with the right to assign work. See, for example, American Federation of Government Employees, AFL-CIO, Local 3385 and Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA 398, 401-03 (1981) (proposal precluding the agency from assigning certain tasks to unit employees held nonnegotiable). Proposal 2 prevents the Agency from assigning the task of evaluating employee performance to a particular individual for 90 days. Accordingly, Proposal 2 di