National Treasury Employees Union (Union) and Internal Revenue Service (Activity)  

 2 FLRA No. 33
 
 NATIONAL TREASURY EMPLOYEES UNION
 (Union)
 
 and
 
 INTERNAL REVENUE SERVICE
 (Activity)
 
                                            Case No. 0-NG-109
 
                     DECISION ON NEGOTIABILITY ISSUES
 
                              UNION PROPOSAL
 
    SECTION 4
 
    THE IRS AGREES THAT DURING FISCAL YEAR 1979 IT WILL ANNOUNCE 10
 PERCENT MORE OF THE TOTAL
 
    AVAILABLE VACANCIES IN EACH APPOINTING OFFICE IN JOB SERIES AS UPWARD
 MOBILITY POSITIONS THAN
 
    IN FISCAL YEAR 1978;  5 PERCENT MORE IN FISCAL YEAR 1980 THAN IN
 1979;  AND 5 PERCENT MORE IN
 
    FISCAL YEAR 1981 THAN IN FISCAL YEAR 1980.  FOR EXAMPLE, IF AN
 APPOINTING OFFICE FILLED 40 OF
 
    100 (40%) OF THE AVAILABLE GS-512 REVENUE AGENT POSITIONS WITH
 EMPLOYEES PREVIOUSLY EMPLOYED
 
    BY THE IRS IN FISCAL YEAR 1978, IT WOULD BE REQUIRED TO FILL 50% OF
 THE AVAILABLE GS-512
 
    POSITIONS IN FISCAL YEAR 1979;  55% IN FISCAL YEAR 1980;  AND 60% IN
 FISCAL YEAR 1981 AS UPWARD
 
    MOBILITY POSITIONS USING THE PROCEDURES SET FORTH IN SECTION 5.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN UNDER SECTION 7106(B)(2), OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) OR IS OUTSIDE THE DUTY
 TO BARGAIN UNDER SECTION 7106(A)(2), AS ALLEGED BY THE AGENCY.  /1/
 
    CONCLUSION:  THE FIRST SENTENCE OF THE UNION'S PROPOSAL REQUIRING THE
 AGENCY TO ANNOUNCE CERTAIN PERCENTAGES OF THE TOTAL AVAILABLE VACANCIES
 AS UPWARD MOBILITY POSITIONS IS A NEGOTIABLE PROCEDURE UNDER SECTION
 7106(B)(2) OF THE STATUTE.  THE SECOND SENTENCE OF THE DISPUTED PROPOSAL
 CONCERNING A REQUIREMENT TO FILL CERTAIN PERCENTAGES OF SUCH VACANCIES
 AS UPWARD MOBILITY POSITIONS VIOLATES MANAGEMENT'S RIGHT TO HIRE AND
 ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2) OF THE STATUTE.  ACCORDINGLY,
 PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND REGULATIONS (44
 FED.REG. 44740 ET SEQ.(1979)), THE AGENCY ALLEGATION IS SUSTAINED IN
 PART AND SET ASIDE IN PART.  /2/
 
    REASONS:  THE FIRST PART OF THE UNION'S PROPOSAL MERELY WOULD REQUIRE
 THE AGENCY TO ANNOUNCE A CERTAIN PERCENTAGE OF THE TOTAL AVAILABLE
 VACANCIES AS UPWARD MOBILITY POSITIONS.  THE SECOND PART OF THE
 PROPOSAL, HOWEVER, WOULD BY ITS LITERAL LANGUAGE REQUIRE MANAGEMENT TO
 FILL A CERTAIN PERCENTAGE OF SUCH VACANT POSITIONS IN ACCORDANCE WITH
 THE CONDITIONS SET FORTH IN THE PROPOSAL.  IN THIS LATTER REGARD, THE
 UNION EXPRESSLY STATES THAT IT DOES NOT INTEND THE PROPOSAL TO REQUIRE
 THE AGENCY TO FILL POSITIONS.  THE AGENCY'S POSITION IS TWOFOLD:  (1)
 THE UNION'S PROPOSAL VIOLATES SECTION 7106(A)(2) OF THE STATUTE BECAUSE
 IT WOULD RESTRICT MANAGEMENT'S RIGHTS WITH RESPECT TO SELECTING
 CANDIDATES AND FILLING POSITIONS AND (2) IF THE PROPOSAL DOES NOT
 REQUIRE THE AGENCY TO ACTUALLY FILL ANY VACANCIES, AS ARGUED BY THE
 UNION, THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT WOULD BE
 MERELY NUGATORY, REQUIRING MANAGEMENT TO PERFORM A POTENTIALLY USELESS
 ACT.
 
    TURNING INITIALLY FOR CONVENIENCE OF ANALYSIS TO THE SECOND SENTENCE
 OF THE PROPOSAL, THE CLEAR AND EXPLICIT LANGUAGE OF THAT SENTENCE STATES
 THAT MANAGEMENT "WOULD BE REQUIRED TO FILL 50% OF THE AVAILABLE GS-512
 POSITIONS IN FISCAL YEAR 1979;  55% IN FISCAL YEAR 1980;  AND 60% IN
 FISCAL YEAR 1981 AS UPWARD MOBILITY POSITIONS USING THE PROCEDURES SET
 FORTH IN SECTION 5." THUS, ON ITS FACE, THE PLAIN LANGUAGE OF THE SECOND
 SENTENCE OF THE PROPOSAL DOES NOT COINCIDE WITH THE UNION'S STATEMENT AS
 TO THE INTENDED MEANING OF THAT LANGUAGE AND, CONTRARY TO THE UNION'S
 ASSERTION, WOULD REQUIRE THE AGENCY TO ACTUALLY FILL POSITIONS.  THIS
 REQUIREMENT WOULD VIOLATE MANAGEMENT'S RESERVED AUTHORITY UNDER SECTION
 7106(A)(2)(A) OF THE STATUTE TO "HIRE" AND "ASSIGN" EMPLOYEES OR TO
 DECIDE NOT TO TAKE SUCH ACTIONS.
 
    CONSEQUENTLY, SINCE THE SECOND SENTENCE OF THE PROPOSAL EXPRESSLY
 WOULD REQUIRE MANAGEMENT ACTION IN VIOLATION OF SECTION 7106(A)(2)(A) OF
 THE STATUTE, THE AGENCY ALLEGATION THAT IT IS OUTSIDE THE DUTY TO
 BARGAIN IS SUSTAINED.  /3/
 
    HOWEVER, WITH RESPECT TO THE FIRST SENTENCE OF THE PROPOSAL, ITS
 LANGUAGE AS WELL AS THE UNION'S STATED INTENT AS TO THE MEANING OF SUCH
 LANGUAGE ALREADY ADVERTED TO ONLY WOULD REQUIRE THE AGENCY TO ANNOUNCE
 VACANCIES BUT NOT NECESSARILY TO FILL THEM.
 
    MORE PARTICULARLY, THE UNION STATES IN ITS PETITION FOR REVIEW AS
 FOLLOWS:
 
    . . . IRS WOULD BE OBLIGATED TO ANNOUNCE A CERTAIN PERCENTAGE OF ITS
 AVAILABLE POSITIONS
 
    INTERNALLY BEFORE ANNOUNCING A POSITION TO NON-BARGAINING UNIT
 EMPLOYEES.  . . . (T)HE
 
    LANGUAGE DID NOT MEAN THAT IRS WAS OBLIGATED TO SELECT A FIXED
 PERCENTAGE OF EMPLOYEES FROM
 
    AMONG PRESENT IRS EMPLOYEES.
 
    IN THIS SAME REGARD, THE UNION STATES IN ITS RESPONSE TO AGENCY
 STATEMENT OF POSITION, AS FOLLOWS:
 
    THE PROPOSAL MERELY REQUIRES THAT VACANCY ANNOUNCEMENTS BE POSTED AND
 THOSE WHO RESPOND TO
 
    IT BE CONSIDERED FIRST.  IF MANAGEMENT EITHER FINDS THE NUMBER OR
 TYPE OR QUALITY OF
 
    APPLICANTS UNSUITABLE, IT MAY EXERCISE ITS RIGHT AND DISCRETION TO GO
 TO ANY OTHER APPROPRIATE
 
    SOURCE.
 
    THE AUTHORITY SO INTERPRETS THE FIRST SENTENCE FOR PURPOSES OF THIS
 DECISION.  IN THIS CONNECTION, THE AGENCY CONTENTION THAT THE PROPOSAL
 WOULD REQUIRE MANAGEMENT TO PERFORM A POTENTIALLY UNLESS ACT, THEREBY IN
 EFFECT CAUSING UNREASONABLE DELAY AND NEGATING MANAGEMENT RIGHTS IN THE
 EVENT THE AGENCY DECIDED TO FILL THE POSITIONS AS OTHER THEN UPWARD
 MOBILITY POSITIONS, OR NOT TO FILL THEM AT ALL, IS WITHOUT DISPOSITIVE
 SIGNIFICANCE.
 
    THE AUTHORITY REJECTED A SUBSTANTIALLY SIMILAR AGENCY CONTENTION IN
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND
 ARMY-AIR FORCE EXCHANGE SERVICE, FORT DIX, NEW JERSEY, CASE NO. O-NG-20,
 2 FLRA NO. 16 (NOV. 29, 1979), REPORT NO.  .  IN THAT CASE THE PROPOSAL
 AT ISSUE PROVIDED FOR A STAY OF AGENCY DISCIPLINARY ACTION PENDING
 EXHAUSTION OF THE GRIEVANCE AND ARBITRATION PROCESS.  THE AUTHORITY
 ANALYZED THE RELEVANT LEGISLATIVE HISTORY OF THE STATUTE AS FOLLOWS (AT
 P. 2-4 OF THE DECISION):
 
    SECTION 7106 OF THE STATUTE SPECIFIES, IN SUBSECTION (A), VARIOUS
 RIGHTS RESERVED TO AGENCY
 
    MANAGEMENT.  SECTION 7106(B)(2), HOWEVER, PROVIDES THAT THE
 ENUMERATION OF THE SPECIFIED
 
    MANAGEMENT RIGHTS IN SUBSECTION (A) DOES NOT PRECLUDE THE NEGOTIATION
 OF PROCEDURES WHICH
 
    MANAGEMENT WILL OBSERVE IN EXERCISING THOSE RIGHTS.  THE LEGISLATIVE
 HISTORY OF THE STATUTE,
 
    AS IT PERTAINS TO SUBSECTION (B)(2), REVEALS, FIRST OF ALL, THAT THE
 COMMITTEE ON CONFERENCE,
 
    IN ADOPTING THE BILL WHICH SUBSEQUENTLY WAS ENACTED BY CONGRESS AND
 SIGNED INTO LAW BY THE
 
    PRESIDENT, SPECIFICALLY REJECTED A PROVISION OF THE SENATE BILL (S.
 2640) WHICH PROVIDED THAT
 
    NEGOTIATION ON PROCEDURES SHOULD NOT "UNREASONABLY DELAY" SO AS TO
 "NEGATE" THE EXERCISE OF
 
    MANAGEMENT'S RESERVED RIGHTS.  THE CONCLUSION IS JUSTIFIED,
 THEREFORE, THAT CONGRESS DID NOT
 
    INTEND SUBSECTION (B)(2) TO PRECLUDE NEGOTIATION ON A PROPOSAL MERELY
 BECAUSE IT MAY IMPOSE ON
 
    MANAGEMENT A REQUIREMENT WHICH WOULD DELAY IMPLEMENTATION OF A
 PARTICULAR ACTION INVOLVING THE
 
    EXERCISE OF A SPECIFIED MANAGEMENT RIGHT.  RATHER, AS THE CONFERENCE
 REPORT INDICATES,
 
    SUBSECTION (B)(2) IS INTENDED TO AUTHORIZE AN EXCLUSIVE
 REPRESENTATIVE TO NEGOTIATE FULLY ON
 
    PROCEDURES, EXCEPT TO THE EXTENT THAT SUCH NEGOTIATIONS WOULD PREVENT
 AGENCY MANAGEMENT FROM
 
    ACTING AT ALL.  THAT IS, INSOFAR AS IT IS CONSISTENT WITH THE RIGHT
 OF MANAGEMENT ULTIMATELY
 
    TO ACT, CONGRESS INTENDED THE PARTIES TO WORK OUT THEIR DIFFERENCES
 WITH REGARD TO PROCEDURES
 
    IN NEGOTIATIONS.
 
    BASED ON THE FOREGOING ANALYSIS SET OUT WITH GREATER PARTICULARITY IN
 THE ARMY-AIR FORCE EXCHANGE SERVICE CASE, THE FIRST SENTENCE OF THE
 PROPOSAL WOULD NOT PREVENT THE AGENCY FROM ACTING AT ALL TO EXERCISE ITS
 STATUTORY RIGHT TO FILL OR NOT TO FILL VACANT POSITIONS BUT ONLY WOULD
 ESTABLISH A PROCEDURAL REQUIREMENT WHEREBY A CERTAIN NUMBER OF VACANT
 POSITIONS WOULD IN THE FIRST INSTANCE BE ANNOUNCED AS UPWARD MOBILITY
 POSITIONS.  HENCE THAT PART OF THE PROPOSAL DOES NOT CONFLICT WITH
 MANAGEMENT'S RIGHTS UNDER SECTION 7106(A) OF THE STATUTE.  RATHER IT IS
 WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE.
 ACCORDINGLY, THE AGENCY'S ALLEGATION TO THE CONTRARY IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 21, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, SEC.
 7016 (92 STAT. 1198), PROVIDES IN RELEVANT PART, AS FOLLOWS:
 
    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--
 
   .          .          .          .
 
 
    (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;
 
   .          .          .          .
 
 
    (C) WITH RESPECTS TO FILLING POSITIONS, TO MAKE SELECTIONS FOR
 APPOINTMENTS FROM--
 
    (I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION;  OR
 
    (II) ANY OTHER APPROPRIATE SOURCE(.)
 
    /2/ IN SO DECIDING THAT THE FIRST SENTENCE OF THE DISPUTED PROPOSAL
 IS WITHIN THE DUTY TO BARGAIN THE AUTHORITY MAKES NO JUDGMENT AS TO THE
 MERITS OF THE PROPOSAL.
 
    /3/ IN VIEW OF THE DECISION HEREIN THAT SECTION 7106(A)(2)(A) IS
 DISPOSITIVE WITH RESPECT TO THE DUTY TO BARGAIN OVER THE SECOND SENTENCE
 OF THE PROPOSAL, THE AUTHORITY FINDS IT UNNECESSARY TO CONSIDER THE
 AGENCY'S ADDITIONAL CONTENTION THAT THE SENTENCE VIOLATES SECTION
 7106(A)(2)(C) OF THE STATUTE.