National Treasury Employees Union, Chapter 66 (Union) and Internal Revenue Service, Kansas City Service Center (Activity)  

 1 FLRA No. 106
 
 NATIONAL TREASURY EMPLOYEES UNION
 CHAPTER 66
 (Union)
 
 and
 
 INTERNAL REVENUE SERVICE,
 KANSAS CITY SERVICE CENTER
 (Activity)
 
                                            Case No. 0-NG-19
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                              UNION PROPOSAL
 
    THE UNION PROPOSED IN ESSENCE TO MAINTAIN THE "PRESENT SHIFTS" IN THE
 TAXPAYER ASSISTANCE SECTION, I.E., 6:30 A.M. TO 3:00 P.M., 7:00 A.M. TO
 3:30 P.M., 7:20 A.M. TO 3:50 P.M.  /1/
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS A MATTER WITHIN THE
 AGENCY'S DUTY TO BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS (FSLMR) STATUTE OR, AS ALLEGED BY THE AGENCY, IS A MATTER
 WITHIN THE AMBIT OF SECTION
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL DOES NOT CONCERN A MATTER WHICH IS
 NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1)
 OF THE FSLMR STATUTE.  ACCORDINGLY, PURSUANT TO 2424.8 OF THE
 AUTHORITY'S RULES AND REGULATIONS (44 FED.REG. 44740 ET SEQ. (1979)),
 THE AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE
 DUTY TO BARGAIN IS SET ASIDE.
 
    REASONS:  UNDER THE PLAIN LANGUAGE OF SECTION 7106(B)(1) OF THE
 STATUTE (AND IN THE ABSENCE OF ANY CONTRARY INDICATION IN THE
 LEGISLATIVE HISTORY OF SUCH LANGUAGE) THE CLEAR MEANING OF THIS SECTION
 IS TO RENDER THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO A
 TOUR OF DUTY NEGOTIABLE AT THE AGENCY'S ELECTION.  /3/ A PROPOSAL
 OTHERWISE CONSISTENT WITH THE STATUTE, WHICH, BY ITS DIRECT OR INTEGRAL
 RELATIONSHIP TO THE NUMBERS, TYPES, OR GRADES OF EMPLOYEES OR POSITIONS
 ASSIGNED TO A TOUR OF DUTY, WOULD BE DETERMINATIVE OF SUCH (LINE(S) OF
 SOURCE COPY CUT OFF BY COPY MACHINE) EXPLICITLY RELATE TO THE NUMBERS,
 TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO THE TOUR OF DUTY OR TO THE
 ORGANIZATIONAL SUBDIVISION HEREIN, SO AS TO COME WITHIN THE LITERAL
 LANGUAGE OF SECTION 7106(B)(1).
 
    FURTHER, CONTRARY TO THE AGENCY'S UNSUPPORTED ASSERTIONS, THE RECORD
 DOES NOT DISCLOSE THAT THE PROPOSAL IS IN ANY MANNER DIRECTLY OR
 INTEGRALLY RELATED TO THE NUMBERS, TYPES, OR GRADES OF THE EMPLOYEES OR
 POSITIONS OF THE TOUR OF DUTY OR ORGANIZATIONAL SUBDIVISION INVOLVED
 HEREIN SO AS TO BE DETERMINATIVE OF SUCH NUMBERS, TYPES, AND GRADES.
 RATHER, THE RECORD INDICATES THAT THE AGENCY MAINTAINS TWO STARTING
 TIMES AND TWO QUITTING TIMES FOR THE TAXPAYER ASSISTANCE SECTION:
 NAMELY, STARTING TIMES OF 6:30 A.M. AND 7:20 A.M. AND QUITTING TIMES OF
 3:00 P.M. AND 3:50 P.M.  THUS, THE REINSTITUTION OF THE 7 A.M. STARTING
 TIME AND THE 3:30 P.M. QUITTING TIME PROPOSED BY THE UNION WOULD FALL
 WITHIN THE RANGE OF STARTING AND QUITTING TIMES ESTABLISHED BY THE
 AGENCY.  IN PRACTICAL EFFECT, THEREFORE, IT APPEARS FROM THE RECORD IN
 THE CASE THAT IMPLEMENTATION OF THE PROPOSAL WOULD AMOUNT TO A
 RELATIVELY MINOR ADJUSTMENT IN THE STARTING AND QUITTING TIMES OF THE
 EMPLOYEES ASSIGNED TO THE TOUR OF DUTY OF THIS ORGANIZATIONAL
 SUBDIVISION.
 
    IMPLEMENTATION OF THE PROPOSAL WOULD NOT AFFECT THE AGENCY'S
 POSITIONS OR PERSONNEL IN A MANNER WHICH WOULD BE DETERMINATIVE OF THE
 NUMBERS, TYPES, OR GRADES OF THE EMPLOYEES OR POSITIONS ASSIGNED TO THE
 TOUR OF DUTY OR TO THE ORGANIZATIONAL SUBDIVISION, I.E., TAXPAYER
 ASSISTANCE SECTION.  AS STATED PREVIOUSLY, THERE IS NO INDICATION IN THE
 RECORD, BEYOND THE UNSUPPORTED ASSERTION OF THE AGENCY, THAT
 IMPLEMENTATION OF THE PROPOSAL WOULD IN ANY WAY AFFECT THE NUMBERS,
 TYPES, AND GRADES OF SUCH POSITIONS OR PERSONNEL.  THE UNION'S PROPOSAL
 RELATES ONLY TO PERMITTING A MODICUM OF FLEXIBILITY WITHIN THE RANGE OF
 STARTING AND QUITTING TIMES FOR THE EXISTING TOUR OF DUTY.
 
    IN SUMMARY, THE AGENCY HAS NOT DEMONSTRATED THAT THE SUBJECT
 PROPOSAL, WITHIN THE CIRCUMSTANCES OF THIS PARTICULAR CASE, WOULD BE
 DETERMINATIVE OF THE NUMBERS, TYPES, OR GRADES OF EMPLOYEES OR POSITIONS
 AND, CONSEQUENTLY, NEGOTIABLE AT THE ELECTION OF THE AGENCY UNDER
 SECTION 7106(B)(1) OF THE STATUTE.
 
    THEREFORE, THE PROPOSAL AT ISSUE IS A MATTER WITHIN THE AGENCY'S DUTY
 TO BARGAIN UNDER THE STATUTE, AND THE AGENCY'S ALLEGATION THAT THE
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN MUST BE SET ASIDE.  /5/
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 13, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                   FEDERAL LABOR RELATIONS AUTHORITY /6/
 
    /1/ IT APPEARS THAT THIS DISPUTE AROSE AS A RESULT OF THE ACTIVITY'S
 DECISION TO ELIMINATE THE 7 A.M. STARTING TIME AND THE 3:30 P.M.
 QUITTING TIME WITHIN THE TAXPAYER ASSISTANCE SECTION.  THE UNION'S
 PROPOSAL ESSENTIALLY WOULD REQUIRE THE ACTIVITY TO REINSTITUTE THE
 ELIMINATED STARTING AND QUITTING TIMES WITHIN THE SECTION.  WHILE THE
 UNION'S APPEAL, AS SUBMITTED, CONTAINED NUMEROUS OTHER PROPOSALS
 CONCERNING THE IMPACT OF THE ACTIVITY'S DECISION, THESE OTHER PROPOSALS
 WERE WITHDRAWN FROM DISPUTE.
 
    /2/ SECTION 7106(B)(1) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1198) PROVIDES:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY, OR ON THE
 
    TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)
 
    /3/ CONCERNING THE NATURE OF THE AGENCY'S OBLIGATION TO NEGOTIATE
 OVER NUMBERS, TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO A TOUR OF DUTY,
 THE FOLLOWING EXCHANGE OCCURRED DURING THE FLOOR DEBATE ON THE FINAL
 VERSION OF SECTION 7106:
 
    MR. EDWARDS OF ALABAMA.  THE EXECUTIVE ORDER SAYS THAT THERE SHALL BE
 NO OBLIGATION TO MEET
 
    AND CONFER ON "NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES
 ASSIGNED TO AN
 
    ORGANIZATIONAL UNIT, WORK PROJECT, OR TOUR OF DUTY," AND SO FORTH;
 IN OTHER WORDS, DOWN AT THE
 
    BASE LEVEL IN THE CASE OF A DEFENSE FACILITY, FOR EXAMPLE.  YET, IN
 THE UDALL SUBSTITUTE IT
 
    SAYS THEY ARE NOT "PRECLUDED" FROM MEETING AND CONFERRING WHICH
 SUGGESTS THAT UNDER THE HEAT
 
    OF BARGAINING THEY IN FACT COULD NEGOTIATE AND BARGAIN AT THAT LEVEL.
  IS THE DEFENSE
 
    DEPARTMENT OR ANY OTHER FEDERAL AGENCY, FOR THAT MATTER, REQUIRED TO
 BARGAIN ON THOSE
 
    PARTICULAR SUBJECTS?
 
   .          .          .          .
 
 
    MR. FORD OF MICHIGAN.  IT IS PERMISSIBLE, AND IT IS IN EXACTLY THE
 SAME STATUS AS THE
 
    EXISTING LAW.  I MIGHT SAY THAT NOT ONLY ARE THEY UNDER NO OBLIGATION
 TO BARGAIN, BUT IN FACT
 
    THEY CAN START BARGAINING AND CHANGE THEIR MINDS AND DECIDE THEY DO
 NOT WANT TO TALK ABOUT IT
 
    ANY MORE, AND PULL IT OFF THE TABLE.  IT IS COMPLETELY WITHIN THE
 CONTROL OF THE AGENCY TO
 
    BEGIN DISCUSSING THE MATTER OR TERMINATE THE DISCUSSION AT ANY POINT
 THEY WISH WITHOUT A
 
    CONCLUSION, AND THERE IS NO APPEAL OR REACTION POSSIBLE FROM THE
 PARTIES ON THE OTHER SIDE OF
 
    THE TABLE.
 
    IT IS COMPLETELY, IF YOU WILL, AT THE PLEASURE AND THE WILL OF THE
 AGENCY.  WHERE AN AGENCY
 
    WANTS TO RESOLVE A PARTICULAR PROBLEM WITH AN ORGANIZATION AND COME
 TO SOME AGREEMENT, IT CAN
 
    CHOOSE TO DO SO.  THERE ARE CIRCUMSTANCES WHERE THAT HAS BEEN DONE,
 BUT VERY RARELY.
 
   .          .          .          .
 
 
    MR. EDWARDS OF ALABAMA.  SO THAT, IF I UNDERSTAND THE GENTLEMAN
 CORRECTLY-- AND I WILL USE
 
    THE DEFENSE DEPARTMENT AGAIN AS AN EXAMPLE-- IF THE DEFENSE
 DEPARTMENT CHOOSES NOT TO
 
    NEGOTIATE ON THE SUBJECT OF "NUMBERS, TYPES AND GRADES OF POSITIONS
 OR EMPLOYEES ASSIGNED TO
 
    AN ORGANIZATION UNIT, WORK PROJECT, OR TOUR OF DUTY," AND SO FORTH,
 AS PROVIDED IN THAT
 
    SUBSECTION (B)(1), THEN THERE IS NO WAY THAT THEY CAN BE FORCED TO
 NEGOTIATE ON THOSE
 
    SUBJECTS?
 
    MR. FORD OF MICHIGAN.  THAT IS CORRECT.
 
   .          .          .          .
 
 
    MR. EDWARDS OF ALABAMA.  AND IF THEY IN FACT START NEGOTIATING ON
 THOSE SUBJECTS AND
 
    CONCLUDE AT SOME POINT THAT THEY SHOULD NOT NEGOTIATE FURTHER, THERE
 IS NO WAY TO FORCE THEM
 
    TO NEGOTIATE FURTHER?
 
    MR. FORD OF MICHIGAN.  THAT IS CORRECT.  IT IS COMPLETELY WITHIN THE
 DISCRETION OF ONE SIDE
 
    OF THE TABLE, AND THERE IS NO APPEAL FROM THEIR DECISION.
 
    MR. EDWARDS OF ALABAMA.  IT IS THE GENTLEMAN'S OPINION, IF I
 UNDERSTAND THE GENTLEMAN
 
    CORRECTLY, THAT THE INTENTION OF THE DRAFTERS OF THIS PARTICULAR
 SECTION OF THE UDALL
 
    SUBSTITUTE IS THAT, IN PRACTICAL EFFECT, THEY HAVE INTENDED TO CARRY
 OUT THE ORIGINAL LANGUAGE
 
    OF THE EXECUTIVE ORDER, BUT HAVE JUST REARRANGED IT IN A DIFFERENT
 WAY.
 
    MR. FORD OF MICHIGAN.  I BELIEVE THAT THOSE OF MY COLLEAGUES WHO HAVE
 WORKED ON THE BILL
 
    COULD CONCUR WITH ME THAT IT WAS NOT OUR INTENTION TO SUBSTANTIVELY
 AFFECT THE STATUS QUO WITH
 
    RESPECT TO SPECIFIC ITEMS CONTAINED IN EITHER OF THE SECTIONS
 INVOLVING ITEMS THAT ARE
 
    PERMISSIBLY NEGOTIABLE.
 
    124 CONG.REC. H9646 (DAILY ED. SEPT. 13, 1978).
 
    /4/ PROPONENTS OF THE BILL ENDORSED THIS APPROACH TOWARDS NEGOTIATION
 ON THESE SUBJECTS AS MANDATED BY THE FINAL VERSION OF TITLE VII.  SEE,
 E.G., REMARKS OF REP. FORD AT 124 CONG. REC. H9649 (DAILY ED. SEPT. 13,
 1978) WHICH INDICATE AS FOLLOWS:
 
    IN ADOPTING THIS COURSE, IN THE UDALL COMPROMISE, WE IMPLEMENT THE
 RATIONALE OF SEVERAL
 
    DECISIONS OF RELEVANT OVERSIGHT AGENCIES FOR FEDERAL SECTOR LABOR
 RELATIONS.  THE FEDERAL
 
    LABOR RELATIONS COUNCIL, FOR EXAMPLE, HAS RULES THAT A PROPOSAL MUST
 DIRECTLY RELATE TO THE
 
    "NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES" BEFORE THAT
 PROPOSAL CAN BE RULED
 
    NONNEGOTIABLE BECAUSE IT INFRINGES ON THE MANAGEMENT RIGHT UNDER THE
 EXECUTIVE ORDER TO
 
    DETERMINE THOSE MATTERS.
 
   .          .          .          .
 
 
    AS THE SECTIONAL ANALYSIS MAKES CLEAR, THE UDALL SUBSTITUTE IS
 DRAFTED SO AS TO EMBODY IN
 
    THE STATUTE THE APPROACH OF THESE AND SIMILAR DECISIONS . . .
 
    SEE ALSO, 124 CONG. REC. H9638 (DAILY ED. SEPT. 13, 1978) (REMARKS OF
 REP. CLAY).
 
    /5/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /6/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
 CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
 STATES SENATE AS A MEMBER OF THE AUTHORITY.