National Treasury Employees Union, Chapter 6 (Union) and Internal Revenue Service, New Orleans District Office (Activity) 

 1 FLRA No. 102
 
 NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 6
 (Union)
 
 and
 
 INTERNAL REVENUE SERVICE,
 NEW ORLEANS DISTRICT OFFICE
 (Activity)
 
                                            Case No. 0-NG-9
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                               PROVISION /1/
 
    A.  R.O.'S (REVENUE OFFICERS) MAY REQUEST DAILY OR CONTINUOUS
 PERMISSION TO WORK IN/OUT OF
 
    THEIR RESIDENCES.
 
    B.  BASED UPON A REVENUE OFFICER'S REQUEST AND THE REASONS PRESENTED,
 THE EMPLOYER WILL
 
    CONSIDER THE FOLLOWING CRITERIA IN EXERCISING THE AUTHORITY TO GRANT
 OR DENY THE REQUEST:
 
    1.  THE REASONABLENESS OF THE REQUEST;
 
    2.  THE WORKABILITY OF THE REQUEST;  AND
 
    3.  THE EFFECT OF THE REQUEST UPON THE EFFICIENCY OF THE SERVICE.
 
    C.  THE EMPLOYER AGREES THAT ALL DETERMINATIONS WILL BE MADE IN A
 FAIR, OBJECTIVE AND
 
    EQUITABLE MANNER.
 
    D.  UPON THE EMPLOYEE'S REQUEST, THE MANAGER WILL IDENTIFY AND
 DISCUSS THE REASON(S) UPON
 
    WHICH THE DENIAL IS BASED.
 
    E.  CONTINUOUS PERMISSION, ONCE GRANTED, MAY BE SUBJECT TO PERIODIC
 REVIEW BY THE GROUP
 
    MANAGER AND MAY BE WITHDRAWN UPON A NEW, CONTRARY DETERMINATION OF
 THE CRITERIA CONTAINED IN
 
    "B" ABOVE.
 
    F.  THE PARTIES AGREE THAT THIS IS A LOCAL SUPPLEMENTAL AGREEMENT,
 AND IT SUPPLEMENTS
 
    MDA-3.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE DISPUTED PROVISION OF THE PARTIES'
 LOCALLY NEGOTIATED AGREEMENT VIOLATES SECTION 7106(A) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS (FSLMR) STATUTE, AS ALLEGED GENERALLY
 BY THE AGENCY.  /2/
 
                                  OPINION
 
    CONCLUSION:  THE PROVISION DOES NOT VIOLATE SECTION 7106 OF THE FSLMR
 STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S
 RULES AND REGULATIONS (44 FED.REG. 44740 ET SEQ. (1979)), THE AGENCY'S
 ALLEGATION THAT THE DISPUTED PROVISION IS NOT WITHIN THE DUTY TO BARGAIN
 BECAUSE IT VIOLATES THAT SECTION OF THE STATUTE IS SET ASIDE.  /3/
 
    REASONS:  THE RECORD BEFORE THE AUTHORITY INDICATES THAT MANAGEMENT'S
 PRACTICE IN THE BARGAINING UNIT INVOLVED IS TO GRANT EMPLOYEES' REQUESTS
 TO WORK FROM THEIR HOMES UNDER CERTAIN CIRCUMSTANCES.  /4/ THE UNION
 ARGUES THAT THE PROVISION DISPUTED IN THE INSTANT CASE IS WITHIN THE
 DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE /5/ SINCE IT
 CONSTITUTES MERELY THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN
 EXERCISING ITS RETAINED RIGHTS IN CONNECTION WITH THE PRACTICE OF
 SOMETIMES ALLOWING AN EMPLOYEE TO WORK FROM HIS OR HER HOME.  THE
 AGENCY, AS INDICATED, CONTENDS THAT THE PROVISION VIOLATES MANAGEMENT'S
 RIGHTS UNDER SECTION 7106(A) OF THE STATUTE.  /6/
 
    SECTION 7106 OF THE STATUTE SPECIFIED, IN SUBSECTION (A), VARIOUS
 RIGHTS RESERVED TO AGENCY MANAGEMENT.  /7/ SUBSECTION (B), HOWEVER,
 PROVIDES THAT MANAGEMENT'S EXERCISE OF ANY RIGHTS CONTAINED IN
 SUBSECTION (A) DOES NOT PRECLUDE NEGOTIATIONS ON THE PROCEDURES WHICH
 MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING THOSE RIGHTS.  /8/ THE
 LEGISLATIVE HISTORY OF THE STATUTE REFLECTS THE INTENT, IN REGARD TO THE
 DUTY TO BARGAIN ON THE PROCEDURES MANAGEMENT WILL OBSERVE IN EXERCISING
 ANY RESERVED RIGHTS UNDER THE STATUTE, TO AUTHORIZE UNIONS TO NEGOTIATE
 FULLY ON SUCH PROCEDURES, UNLESS SUCH NEGOTIATIONS WOULD PREVENT THE
 AGENCY FROM ACTING AT ALL.  /9/
 
    TURNING TO THE DISPUTED PROVISION, IT PRINCIPALLY RELATES, AS A
 WHOLE, TO AGENCY MANAGEMENT'S GRANTING OR DENYING THE REQUEST OF
 INDIVIDUAL MEMBERS OF THE BARGAINING UNIT (REVENUE OFFICERS) TO WORK
 "IN/OUT OF THEIR RESIDENCES." SECTION A WHICH IS NOT IN DISPUTE MERELY
 REFLECTS THE EXISTENCE OF THE AGENCY'S PRACTICE TO CONSIDER SUCH
 REQUESTS.  (AS NOTED BEFORE, THE UNION TACITLY CONCEDES THAT THE
 EXISTENCE AND CONTINUATION OF THIS PRACTICE IS A MATTER SOLELY RESERVED
 TO MANAGEMENT'S DISCRETION.) SECTIONS B, C, AND E, DISPUTED HEREIN,
 DELINEATE THE PROCEDURES WHICH MANAGEMENT WILL FOLLOW WHEN CONSIDERING
 SUCH REQUESTS.  IN THIS REGARD, SECTION B ESTABLISHES "REASONABLENESS,"
 "WORKABILITY" AND "EFFECT OF THE REQUEST UPON THE EFFICIENCY OF THE
 SERVICE" AS CRITERIA WHICH MANAGEMENT MUST CONSIDER IN EXERCISING ITS
 AUTHORITY TO GRANT OR DENY A REQUEST.  THESE CRITERIA (WHICH
 DERIVATIVELY APPLY ALSO UNDER SECTION E) ARE VERY GENERAL AND ARE NOT
 EXCLUSIVE:  THE LANGUAGE OF THE PROVISION DOES NOT SPECIFY THEIR
 EXCLUSIVITY AND, FURTHERMORE, THE UNION UNEQUIVOCALLY STATES IN THE
 RECORD BEFORE THE AUTHORITY THAT THEY ARE NOT EXCLUSIVE BUT ARE TO BE
 APPLIED BY THE RESPONSIBLE MANAGEMENT OFFICIAL "AMONG ANY OTHER CRITERIA
 HE OR SHE WISHES TO CONSIDER." SECTION C MERELY ESTABLISHES A GENERAL
 STANDARD FOR MANAGEMENT'S DETERMINATIONS WITH REGARD TO EMPLOYEE
 REQUESTS:  THAT THEY BE FAIR, OBJECTIVE AND EQUITABLE.  SECTION E MAKES
 THE NONEXCLUSIVE CRITERIA FOR GRANTING OR DENYING REQUESTS, MENTIONED
 ABOVE, APPLICABLE ALSO TO EXERCISES OF MANAGEMENT DECISIONAL AUTHORITY
 TO CONTINUE OR WITHDRAW PERMISSION, PREVIOUSLY GRANTED, FOR AN EMPLOYEE
 TO WORK FROM HIS OR HER RESIDENCE.
 
    IT IS PLAIN FROM THE LANGUAGE OF SECTIONS B, C, AND E OF THE
 PROVISION AND FROM THE UNION'S CLEAR STATEMENT TO THE AUTHORITY
 REGARDING THE NONEXCLUSIVITY OF THE CRITERIA ESTABLISHED IN SECTION B,
 THAT THESE SECTIONS SOLELY ARE CONCERNED WITH THE PROCEDURES WHICH
 MANAGEMENT WILL OBSERVE IN DETERMINING WHETHER TO GRANT, DENY OR, HAVING
 ONCE GRANTED, TO CONTINUE OR WITHDRAW PERMISSION FOR A BARGAINING UNIT
 MEMBER TO WORK FROM HIS OR HER HOME IN ACCORDANCE WITH EXISTING AGENCY
 PRACTICE.  FURTHERMORE, THERE IS NO SHOWING THAT THESE PROCEDURES WILL
 PREVENT MANAGEMENT FROM ACTING AT ALL ON EMPLOYEES' REQUEST FOR SUCH
 PERMISSION.  ACCORDINGLY, THE PROCEDURES IN QUESTION ARE WITHIN THE DUTY
 TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE /10/ AND THE AGENCY'S
 ALLEGATION TO THE CONTRARY MUST BE SET ASIDE.
 
    FINALLY, SECTION F OF THE PROVISION STATES THAT "THE PARTIES AGREE
 THAT THIS IS A LOCAL AGREEMENT SUPPLEMENTING 'MDA-3'" (APPARENTLY
 ADVERTING TO AN AGREEMENT BETWEEN THE PARTIES AT A HIGHER LEVEL).  THE
 AGENCY PROVIDES NO SUPPORT OR EXPLANATION FOR ITS ALLEGATION THAT
 SECTION F OF THE PROVISION VIOLATES SECTION 7106 OF THE STATUTE AND NO
 VIOLATION IS OTHERWISE APPARENT FROM THE RECORD IN THIS CASE.
 ACCORDINGLY THE ALLEGATION OF THE AGENCY THAT SECTION F OF THE PROVISION
 IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE IT VIOLATES SECTION 7106 OF
 THE STATUTE MUST BE SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., AUGUST 23, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ THE PARTIES NEGOTIATED THE DISPUTED PROVISION AS PART OF THEIR
 LOCAL COLLECTIVE BARGAINING AGREEMENT.  DURING THE REVIEW PROCESS
 PURSUANT TO SECTION 7114(C) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1203), THE AGENCY DISAPPROVED THE
 UNDERSCORED PORTIONS OF THE PROVISION.  SECTION 7114(C) PROVIDES THAT:
 
    (C)(1) AN AGREEMENT BETWEEN ANY AGENCY AND AN EXCLUSIVE
 REPRESENTATIVE SHALL BE SUBJECT TO
 
    APPROVAL BY THE HEAD OF THE AGENCY.
 
    (2) THE HEAD OF THE AGENCY SHALL APPROVE THE AGREEMENT WITHIN 30 DAYS
 FROM THE DATE THE
 
    AGREEMENT IS EXECUTED IF THE AGREEMENT IS IN ACCORDANCE WITH THE
 PROVISIONS OF THIS CHAPTER
 
    AND ANY OTHER APPLICABLE LAW, RULE, OR REGULATION (UNLESS THE AGENCY
 HAS GRANTED AN EXCEPTION
 
    TO THE PROVISION).
 
    (3) IF THE HEAD OF THE AGENCY DOES NOT APPROVE OR DISAPPROVE THE
 AGREEMENT WITHIN THE
 
    30-DAY PERIOD, THE AGREEMENT SHALL TAKE EFFECT AND SHALL BE BINDING
 ON THE AGENCY AND THE
 
    EXCLUSIVE REPRESENTATIVE SUBJECT TO THE PROVISIONS OF THIS CHAPTER
 AND ANY OTHER APPLICABLE
 
    LAW, RULES, OR REGULATIONS.
 
    (4) A LOCAL AGREEMENT SUBJECT TO A NATIONAL OR OTHER CONTROLLING
 
    AGREEMENT AT A HIGHER LEVEL SHALL BE APPROVED UNDER THE PROCEDURES OF
 THE CONTROLLING
 
    AGREEMENT, OR, IF NONE, UNDER REGULATIONS PRESCRIBED BY THE AGENCY.
 
    /2/ SECTION 7106(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1198) PROVIDES:
 
    SECTION 7106.  MANAGEMENT RIGHTS.
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
    (1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
 EMPLOYEES, AND INTERNAL
 
    SECURITY PRACTICES OF THE AGENCY;  AND--
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED.
 
    (C) WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS FOR
 APPOINTMENTS FROM--
 
    (I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION;  OR
 
    (II) ANY OTHER APPROPRIATE SOURCE;  AND
 
    (D) TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO CARRY OUT THE AGENCY
 MISSION DURING
 
    EMERGENCIES.
 
    /3/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGEMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /4/ THE FOLLOWING "MEMORANDUM OF PRACTICE" WAS PROVIDED TO THE UNION
 BY THE CHIEF, COLLECTION DIVISION, NEW ORLEANS DISTRICT:
 
    SUBJECT:  PRACTICE WITH RESPECT TO REVENUE OFFICERS PERFORMING
 OFFICIAL DUTIES AT THEIR
 
    RESIDENCE
 
    FOR LIMITED AND EXTENDED PERIODS OF TIME, EMPLOYEES WILL BE ALLOWED,
 UPON REQUEST, TO WORK
 
    FROM THEIR HOMES WHEN THEY CAN PROVIDE ADEQUATE EVIDENCE THAT IT WILL
 IN THE BEST INTEREST OF
 
    THE SERVICE.  GROUP MANAGERS WILL GRANT THEIR APPROVAL TO INDIVIDUAL
 REVENUE OFFICERS BASED ON
 
    THE EFFICIENCY OF THE PRACTICE, WITH DUE CONSIDERATION FOR
 DISCLOSURE, THE PUBLIC IMAGE OF THE
 
    SERVICE, THE POTENTIAL FOR ABUSE, AND OTHER FACTORS.
 
    THE BURDEN OF PROOF WILL REMAIN WITH THE EMPLOYEE, AND GROUP
 MANAGEMENT WILL RETAIN THE
 
    RIGHT TO DENY OR WITHDRAW SUCH PERMISSION WHENEVER IT IS DEEMED
 NECESSARY.
 
    /5/ SECTION 7106TB)(2) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   .          .          .          .
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION(.)
 
    /6/ NOTE 2, SUPRA.  MANAGEMENT DID NOT SUBMIT A STATEMENT OF ITS
 POSITION SETTING FORTH ARGUMENTS IN SUPPORT OF THIS GENERAL ALLEGATION.
 
    /7/ NOTE 2, SUPRA.  THE UNION TACITLY CONCEDES THAT THESE RIGHTS
 ENCOMPASS DETERMINING WHETHER TO ALLOW AN EMPLOYEE TO WORK FROM HIS OR
 HER HOME.
 
    /8/ NOTE 5, SUPRA.
 
    /9/ IN THIS REGARD, THE JOINT EXPLANATORY STATEMENT OF THE COMMITTEE
 ON CONFERENCE STATED IN THE CONFERENCE REPORT WHICH ACCOMPANIED THE BILL
 WHICH WAS ENACTED AND SIGNED INTO LAW, AS FOLLOWS:
 
    3.  SENATE SECTION 7218(B) PROVIDES THAT NEGOTIATIONS ON PROCEDURES
 GOVERNING THE EXER(ISE
 
    OF AUTHORITY RESERVED TO MANAGEMENT SHALL NOT UNREASONABLY DELAY THE
 EXERCISE BY MANAGEMENT OF
 
    ITS AUTHORITY TO ACT ON SUCH MATTERS.  ANY NEGOTIATIONS ON PROCEDURES
 GOVERNING MATTERS
 
    OTHERWISE RESERVED TO AGENCY DISCRETION BY SUBSECTION (A) MAY NOT
 HAVE THE EFFECT OF ACTUALLY
 
    NEGATING THE AUTHORITY AS RESERVED TO THE AGENCY BY SUBSECTION (A).
 THERE ARE NO COMPARABLE
 
    HOUSE PROVISIONS.
 
    THE CONFERENCE REPORT DELETES THESE PROVISIONS.  HOWEVER, THE
 CONFEREES WISH TO EMPHASIZE
 
    THAT NEGOTIATIONS ON SUCH PROCEDURES SHOULD NOT BE CONDUCTED IN A WAY
 THAT PREVENTS THE AGENCY
 
    FROM ACTING AT ALL, OR IN A WAY THAT PREVENTS THE EXCLUSIVE
 REPRESENTATIVE FROM NEGOTIATING
 
    FULLY ON PROCEDURES . . .
 
    S. REP NO. 95-1272, 95TH CONG., 2D SESS. 158(1978).
 
    THUS, THE CONFERENCE COMMITTEE, IN APPROVING SECTION 7106(B)(2) OF
 THE STATUTE DID NOT ADOPT THE LANGUAGE IN THE SENATE BILL (S. 2640)
 WHICH PROVIDED AS FOLLOWS:
 
    SECTION 7218.  BASIC PROVISIONS OF AGREEMENTS
 
   .          .          .          .
 
 
    (B) NOTHING IN SUBSECTION (A) OF THIS SECTION SHALL PRECLUDE THE
 PARTIES FROM NEGOTIATING--
 
    (1) PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EXERCISING ITS
 AUTHORITY TO DECIDE OR ACT
 
    IN MATTERS RESERVED UNDER SUCH SUBSECTION;  OR
 
    (2) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 IMPACT OF MANAGEMENT'S
 
    EXERCISING ITS AUTHORITY TO DECIDE OR ACT IN MATTERS RESERVED UNDER
 SUCH SUBSECTION,
 
    EXCEPT THAT SUCH NEGOTIATIONS SHALL NOT UNREASONABLY DELAY THE
 EXERCISE BY MANAGEMENT OF ITS AUTHORITY TO DECIDE OR ACT, AND SUCH
 PROCEDURES AND ARRANGEMENTS SHALL BE CONSISTENT WITH THE PROVISIONS OF
 ANY LAW OR REGULATION DESCRIBED IN 7215(C) OF THIS TITLE, AND SHALL NOT
 HAVE THE EFFECT OF NEGATING THE AUTHORITY RESERVED UNDER SUBSECTION (A).
 
    /10/ NOTE 5, SUPRA.