45:1256(126)NG - - NTEU and Treasury, Office of the Chief Council, IRS - - 1992 FLRAdec NG - - v45 p1256



[ v45 p1256 ]
45:1256(126)NG
The decision of the Authority follows:


45 FLRA No. 126

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

OFFICE OF CHIEF COUNSEL

INTERNAL REVENUE SERVICE

(Agency)

0-NG-1582

39 FLRA 27 (1991)

_____

DECISION AND ORDER ON REMAND

September 24, 1992

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. U.S. Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992) (IRS v. FLRA). In that decision, the court vacated the Authority's decision in National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27 (1991) (Office of Chief Counsel) that two provisions of an agreement, which were disapproved by the General Counsel, Department of the Treasury, were negotiable under section 7106(b)(3) of the Federal Service Labor-Management Relations Statute (the Statute). Following the court's remand, the Union and the Agency filed supplemental briefs.

For the following reasons, we will dismiss the Union's petition for review as to the two provisions.

II. Article 24, Section 2(C)

A. Provision

Supervisors will refrain from rotating or scheduling assignments of employees to avoid compensation of a particular employee at the higher level.

B. Background and Court's Decision

Noting the Union's sole argument that this provision constituted an appropriate arrangement under section 7106(b)(3) of the Statute, the Authority assumed, in Office of Chief Counsel, that the provision directly interfered with management's right to assign employees and applied the test adopted in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG) to determine whether it constituted an appropriate arrangement. The Authority concluded, as relevant here, that the provision was an arrangement for employees adversely affected by the exercise of management's right to assign employees because the provision's objective was "to mitigate the adverse economic effect on employees when management curtails details to avoid paying increased compensation." Office of Chief Counsel, 39 FLRA at 66. Applying KANG, the Authority concluded that the provision did not excessively interfere with the Agency's right to assign employees and was negotiable as an appropriate arrangement.

The court rejected the Authority's reasoning. The court noted, in this connection, that there was no contention that "a temporary assignment to a higher-level position itself has an adverse effect on employees[,]" and that such assignment "would seem to provide employees with an opportunity to gain valuable new skills." IRS v. FLRA, 960 F.2d at 1073. In the court's view, the adverse effect addressed by the provision "evidently" was only the denial of a benefit: increased compensation for details involving higher-graded work which last one pay period or longer. Id. The court concluded that the provision did not appear to satisfy the requirement of section 7106(b)(3) that a proposed arrangement "address adverse effects flowing from the exercise of a protected management right." Id. Because, in the court's view, the Authority did not adequately explain how the provision constituted an arrangement, the court remanded the matter to the Authority for further proceedings.

C. Positions of the Parties

1. Union

The Union contends that the provision does not seek a new benefit for employees. Rather, the Union maintains that the provision's intent is to "ensure that benefits already negotiated are not negated through the exercise of management rights." Union's Supplemental Brief at 11. The Union also contends that short-term details disrupt and delay employees' performance of their regular assignments and that employees are adversely affected "as a matter of equity when they are deprived of equal pay for equal work." Id. at 12. In addition, the Union argues that short details allow management to avoid establishing higher-graded positions, thereby depriving employees of opportunities to apply for such positions.

2. Agency

The Agency notes the court's conclusion that temporary assignments to perform higher-graded work benefit employees, and argues that the provision attempts to obtain the additional benefit of higher pay by requiring that those details last for at least a pay period. The Agency also maintains that the provision "tends to discourage an employer's decision to place employees temporarily in positions that may offer employees an opportunity to obtain new skills." Agency's Supplemental Brief at 3. The Agency argues that, because the provision provides "a pure benefit," it does not constitute an arrangement. Id.

D. Analysis and Conclusions

Section 7106(b)(3) of the Statute provides for negotiations over "appropriate arrangements for employees adversely affected by the exercise of" management rights. Consistent with the plain wording of the section and long-standing Authority precedent, a proposal cannot constitute an appropriate arrangement unless, among other things, it is intended to mitigate adverse effects resulting from the exercise of a management right. For example, KANG, 21 FLRA at 31-33.

In this case, we conclude, in agreement with the court, that the provision would not address adverse effects resulting from the exercise of a management right. In this regard, the provision is expressly and solely directed at preventing management's curtailment of details to avoid the negotiated requirement for increased compensation. Even assuming that, as the Union argues, employees are adversely affected by short-term details in ways other than denial of higher pay, the provision does not address and would not mitigate those effects. Instead, it is clear that, as argued by the Union in earlier proceedings, the provision would enable the Agency to implement short-term details for reasons other than avoidance of the contractual requirement for higher pay. See Reply Brief at 23-24.

As the provision addresses only the denial of a negotiated benefit, we find, consistent with IRS v. FLRA, that the provision does not constitute an arrangement under section 7106(b)(3) of the Statute. Therefore, as it is undisputed that the provision directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute, it is nonnegotiable.

In the future, the Authority will no longer find that denial of a negotiated benefit, standing alone, is an adverse effect resulting from the exercise of a management right within the meaning of section 7106(b)(3) of the Statute. This is not to suggest, however, that, provided a provision addresses adverse effects flowing from the exercise of a management right, the provision cannot also address negotiated benefits.

III. Article 13, Section 1(A), (B), (C), and (D)

A. Provision

A. The Office will approve leaves of absence of any employee elected to a position of national officer of the Union for the purpose to [sic] serving full-time in the elected position.

B. The Office will approve a leave of absence for one elected local chapter officer for the purpose of serving full-time in the elected position.

C. Leaves of absence granted under A and B, above, will be for a period concurrent with the term of office of the elected official and will be automatically renewed by the Office upon notification in writing from the elected official who has been reelected and wishes to continue in a leave of absence status.

D. The Office will approve leaves of absence for two (2) employees, but not more than one employee from any one work unit, for the purpose of serving in full-time appointive positions for the Union. There [sic] term of the leave of absence will be two (2) years. All affected individuals may have their leaves of absence renewed for one additional two (2) year period upon request.

B. Background and Court's Decision

In Office of Chief Counsel, 39 FLRA at 44-50, the Authority concluded that, by requiring the Agency to grant leaves of absence to employees who wish to serve the Union in elected or appointed positions, this provision directly interfered with management's right to assign work. However, the Authority found that the provision constituted an appropriate arrangement under section 7106(b)(3) of the Statute. The Authority concluded, in this regard, that:

[I]t is reasonably foreseeable that bargaining unit employees would be adversely affected by the exercise of management's right to deny leaves of absence if part-time Union representatives are unavailable to assist employees in protecting their [rights under section 7102 of the Statute]. Moreover, . . . it is reasonably foreseeable that employees wishing to serve the Union would be adversely affected by management's exercise of the right . . . .

Id. at 47. Balancing the benefits afforded unit employees by the provision against the impact of the provision on the Agency's right to assign work, the Authority concluded that the provision did not excessively interfere with management's right and, therefore, was negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

In IRS v. FLRA, the court addressed the Authority's finding that the denial of leaves of absence would adversely affect unit employees. In the court's view, "[t]he employee's dilemma is caused by his or her election or appointment to the union." 690 F.2d at 1074. According to the court, the Union "proposed a benefit (leaves of absence for its officials), and the denial of that benefit purportedly produces the requisite adverse effects." Id. The court rejected the Authority's conclusion that the effects of denials of leaves of absence on unit employees' rights to Union representation and rights to serve as Union representatives were sufficient adverse effects under section 7106(b)(3). Indeed, the court concluded that these rights were not "at all relevant[.]" Id. n.3. The court remanded the matter to the Authority because, in the court's view, the Authority had not adequately explained how this provision, "rather than merely seeking benefits for

employees, compensate[d] for adverse effects that flow from the exercise of management prerogatives." Id. at 1075.(1)

C. Positions of the Parties

1. Union

The Union argues that the provision is an arrangement within the meaning of section 7106(b)(3) of the Statute. The Union asserts that, although leaves of absence constitute a benefit, by "denying the proposed benefit . . . and exercising its right to assign work, management is adversely affecting all bargaining unit employees by impairing the union's ability to provide them adequate representation." Union's Supplemental Brief at 6 (emphasis in original).

In addition, the Union argues that the provision does not excessively interfere with the Agency's right to assign work. According to the Union, "while the right to assign [work] necessarily encompasses the right to make individual assignments, in considering the negotiability of proposals that interfere with that right, the Authority assesses any interference with a view to the general 'effect of the proposal on effective and efficient government operations.'" Id. at 9 (quoting KANG, 29 FLRA at 33). In the Union's view, the benefits conferred on employees by the provision "heavily outweigh[]" any negative impact on management's right. Id.

2. Agency

The Agency argues that, by requiring the Agency to grant leaves of absence, the provision "provides a pure benefit" and, consistent with the court's decision, cannot constitute an appropriate arrangement. Agency's Supplemental Brief at 4. In the alternative, the Agency contends that any adverse effects addressed by the provision are "merely speculative," and the adverse impact arises only after an employee's individual request for a leave of absence is denied. Id. The Agency also asserts that the provision excessively interferes with its right to assign work because "it mandates a grant of leave to an employee elected to a union office in all circumstances." Id. at 7 (emphasis in original).

D. Analysis and Conclusions

Longstanding Authority precedent confirms that management's right to assign work encompasses the right to grant, or deny, requests for leaves of absence. For example, American Federation of Government Employees, AFL-CIO, Local 2263 and Department of the Air Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580, 583 (1984). Accordingly, although the Authority previously referred to adverse effects resulting from the exercise of management's "right to deny leaves of absence," 39 FLRA at 47, it is clear and undisputed that a denial of a leave of absence results directly from the exercise of the right to assign work and, as such, adverse effects flowing from a refusal to grant a leave of absence may be attributed to the exercise of a management right.

In this case, the sole adverse effects identified by the Union, in its original submissions to the Authority and in its supplemental submission following the court's remand, relate to the alleged denial