National Treasury Employees Union (Union) and Department of the Treasury, Internal Revenue Service (Agency)

 7 FLRA No. 35
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE
 Agency
 
                                            Case No. O-NG-210
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
 U.S.C. 7101-7135).  THE ISSUE PRESENTED IS THE NEGOTIABILITY OF SIX
 UNION PROPOSALS.
 
                             UNION PROPOSAL 1
 
    WE WANT PRACTICE, WHERE IT EXISTS, OF ALLOWING ONE COUNT FOR "ALPHA",
 A SECOND COUNT FOR
 
    "X-REFERENCE DIST", AND A THIRD COUNT FOR "OTHER EIN'S" TO CONTINUE.
 THE PRACTICE MAKES SENSE
 
    BECAUSE THE ADDITIONAL RESEARCH TIME REQUIRED TO GO TO TWO OR MORE
 SEPARATE TAPES JUSTIFIES
 
    THE ADDITIONAL COUNT.
 
                             UNION PROPOSAL 2
 
    WE BELIEVE THAT EACH TIME AN EMPLOYEE MUST GO TO A SEPARATE REGISTER
 TO RESEARCH
 
    INFORMATION, A COUNT SHOULD BE RECORDED.
 
                             UNION PROPOSAL 3
 
    AN EMPLOYEE SHOULD RECEIVE ONE COUNT FOR EACH CROSS REFERENCE
 DISTRICT AND ONE COUNT FOR
 
    EACH ADDITIONAL RESEARCH ISSUE GENERATED BY THE CROSS-REFERENCE
 INFORMATION.
 
                             UNION PROPOSAL 4
 
    AN EMPLOYEE SHOULD RECEIVE ONE COUNT FOR A REQUESTED TIN AND ONE
 ADDITIONAL COUNT FOR EACH
 
    ADDITIONAL RESEARCH ISSUE GENERATED BY THE CROSS-REFERENCE
 INFORMATION.
 
                             UNION PROPOSAL 5
 
    AN EMPLOYEE SHOULD RECEIVE ONE COUNT FOR LOOKING AT THE V Z AND ONE
 ADDITIONAL COUNT FOR
 
    GOING TO THE ENTITY TAPE.
 
                      QUESTIONS BEFORE THE AUTHORITY
 
    THE QUESTIONS PRESENTED ARE WHETHER, AS ALLEGED BY THE AGENCY, UNION
 PROPOSALS 1 THROUGH 5 ARE OUTSIDE THE DUTY TO BARGAIN BECAUSE THEY ARE
 INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE OR ARE
 NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY PURSUANT TO SECTION
 7106(B)(1) OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSALS 1 THROUGH 5 ARE NOT
 INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE AND ARE
 NOT NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY PURSUANT TO SECTION
 7106(B)(1) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
 THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
 ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
 THE PARTIES) BARGAIN CONCERNING UNION PROPOSALS 1 THROUGH 5.  /1/
 
    REASONS:  THE UNION'S PROPOSALS CONCERN THE COUNTING OF TASKS
 INVOLVED IN MICROFILM RESEARCH WORK ACCOMPLISHED BY EMPLOYEES IN THE
 ELEVEN IRS SERVICE CENTERS THROUGHOUT THE COUNTRY WHERE TAX RETURN
 INFORMATION IS STORED THROUGH THE USE OF AUTOMATIC DATA PROCESSING
 SYSTEMS.  THE RECORD BEFORE THE AUTHORITY SHOWS THAT THE AGENCY REQUIRES
 THESE EMPLOYEES TO KEEP A LOG OF THE AMOUNT OF WORK THEY COMPLETE EACH
 DAY.  THE INFORMATION FROM THIS LOG PROVIDES A BASIS FOR RATING THE
 QUANTITY FACTOR OF THE EMPLOYEES' PERFORMANCE STANDARDS.  IN THE PAST,
 SERVICE CENTERS HAD BEEN COUNTING THE ITEMS OF WORK IN DIFFERENT
 MANNERS.  THE AGENCY DECIDED TO ADOPT A UNIFORM SYSTEM FOR COUNTING
 UNITS OF WORK NATIONWIDE.  THE UNION REQUESTED NEGOTIATIONS ON THE
 REVISION OF THE COUNTING PROCEDURES FOR MICROFILM EXAMINERS.
 
    THE AGENCY CONTENDS THAT THE DISPUTED PROPOSALS ARE INCONSISTENT WITH
 MANAGEMENT'S RIGHTS TO ASSIGN AND DIRECT EMPLOYEES AND TO ASSIGN WORK
 PURSUANT TO SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE.  /2/ FURTHER,
 THE AGENCY CONTENDS THAT THE PROPOSALS RELATE TO THE METHODS AND MEANS
 OF PERFORMING WORK BY DETERMINING HOW WORK WILL BE COUNTED, AND THEREBY
 ARE NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY PURSUANT TO SECTION
 7106(B)(1) OF THE STATUTE.  /3/
 
    UNION PROPOSALS 1 THROUGH 5 WOULD ESTABLISH A PROCEDURE FOR COUNTING
 THE WORK ACCOMPLISHED BY UNIT EMPLOYEES.  IN THIS REGARD, THE UNION
 CONCEDES THAT IT DOES NOT SEEK TO NEGOTIATE THE AGENCY'S RIGHT TO COUNT
 WORK OR TO ESTABLISH A SYSTEM FOR COUNTING WORK ON A CONSISTENT BASIS
 NATIONWIDE.  RATHER, THE UNION INTERPRETS ITS PROPOSAL AS MERELY
 PRESCRIBING A PROCEDURE TO ENSURE THAT THE WAY IN WHICH WORK IS COUNTED
 IS EQUITABLE.
 
    IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
 BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), THE AUTHORITY
 DETERMINED THAT A PROPOSAL TO ESTABLISH A PARTICULAR PERFORMANCE
 STANDARD FOR THE QUANTITY OF WORK WHICH AN EMPLOYEE MUST PRODUCE FOR JOB
 RETENTION WAS INCONSISTENT WITH MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES
 AND ASSIGN WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE, AND,
 THEREFORE, WAS OUTSIDE THE DUTY TO QUANTITY OF WORK WHICH IT WILL
 REQUIRE OF ITS EMPLOYEES.  THE PROPOSALS IN THE PRESENT CASE, HOWEVER,
 DO NOT RELATE TO THE STANDARD FOR THE QUANTITY OF PRODUCTION REQUIRED;
 RATHER, THE PROPOSALS MERELY CONCERN WHAT ASPECTS OF AN EMPLOYEE'S JOB
 WILL CONSTITUTE DISCRETE UNITS FOR COUNTING PURPOSES.  AS SUCH, UNION
 PROPOSALS 1 THROUGH 5 ONLY APPLY AFTER MANAGEMENT HAS ASSIGNED WORK AND
 HAS DETERMINED THE QUANTITATIVE STANDARD FOR PERFORMANCE.
 
    SINCE THE UNION'S PROPOSALS RELATE TO THE COUNTING OF WORK AFTER THE
 AGENCY HAS DETERMINED, AT ITS SOLE DISCRETION, TO ASSIGN SUCH WORK AND
 TO DIRECT EMPLOYEES TO ACCOMPLISH SUCH WORK THROUGH THE ESTABLISHMENT OF
 QUANTITATIVE PERFORMANCE STANDARDS, AND SINCE THE AGENCY MAY ADJUST
 THESE PERFORMANCE STANDARDS TO ACCOMMODATE THE MANNER IN WHICH WORK IS
 TO BE COUNTED, THE PROPOSALS DO NOT, AS ALLEGED BY THE AGENCY, INTERFERE
 WITH MANAGEMENT'S RIGHTS TO ASSIGN WORK OR DIRECT EMPLOYEES.
 SPECIFICALLY, THE PROPOSALS WOULD NOT, IN ANY MANNER, LIMIT MANAGEMENT'S
 AUTHORITY TO DETERMINE WHAT WORK SHALL BE DONE, OR TO DETERMINE THE
 QUANTITY, QUALITY OR TIMELINESS OF WORK REQUIRED OF AN EMPLOYEE.
 RATHER, THE PROPOSALS IN THIS CASE WOULD MERELY ESTABLISH A PROCEDURE
 FOR COUNTING THE WORK ACCOMPLISHED BY EMPLOYEES IN A MANNER WHICH THE
 UNION BELIEVES WILL RESULT IN AN EQUITABLE AND ACCURATE MEASURE OF EACH
 EMPLOYEE'S QUANTITY OF PRODUCTION.  THE PROPOSALS ARE THEREFORE
 NEGOTIABLE PROCEDURES UNDER SECTION 7106(B)(2) /4/ SINCE THEY DO NOT
 PREVENT THE AGENCY FROM ACTING AT ALL WITH RESPECT TO ITS RIGHTS TO
 ASSIGN WORK AND DIRECT EMPLOYEES.  /5/ AS STATED PREVIOUSLY, THE AGENCY
 WOULD NOT BE PREVENTED FROM ESTABLISHING AND ADJUSTING THE STANDARDS OF
 PERFORMANCE TO BE USED.  ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THE
 PROPOSALS ARE INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE
 STATUTE CANNOT BE SUSTAINED.
 
    LIKEWISE, THE AGENCY'S CLAIM THAT UNION PROPOSALS 1 THROUGH 5 WOULD
 INTERFERE WITH ITS RIGHT TO DETERMINE THE METHODS AND MEANS OF
 PERFORMING WORK PURSUANT TO SECTION 7106(B)(1) OF THE STATUTE CANNOT BE
 SUSTAINED.  AS ALREADY STATED, THE PROPOSED PROCEDURES WOULD NOT
 DETERMINE HOW OR BY WHOM THE AGENCY'S WORK (I.E., MICROFILM RESEARCH)
 WILL BE CONDUCTED OR IN WHAT MANNER SUCH WORK SHALL BE PROCESSED.
 RATHER, THE PROPOSALS CONCERN ONLY THE FORM IN WHICH WORK WOULD BE
 MEASURED OR COUNTED AFTER THE AGENCY HAS DETERMINED, IN ITS SOLE
 DISCRETION, THE METHODS AND MEANS BY WHICH SUCH WORK IS TO BE
 ACCOMPLISHED.  ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THE PROPOSALS
 ARE NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION
 7106(B)(1) OF THE STATUTE MUST BE SET ASIDE.
 
                             UNION PROPOSAL 6
 
    NTEU BELIEVES THAT THE INITIAL POINT COUNT MUST BE MADE BY THE
 RESEARCH CONTROL CLERK.  THE
 
    FINAL POINT COUNT SHOULD BE MADE AFTER THE RESEARCH IS COMPLETED.  IF
 THE FINAL COUNT IS MORE
 
    THAN THE INITIAL COUNT THE IMMEDIATE SUPERVISOR WILL PROCEDURE
 OUTLINED ABOVE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER, AS ALLEGED BY THE AGENCY, UNION
 PROPOSAL 6 IS INCONSISTENT WITH SECTION 7106(A)(2)(B) OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL 6 IS INCONSISTENT WITH THE
 RIGHT TO ASSIGN WORK TO POSITIONS OR EMPLOYEES RESERVED TO MANAGEMENT BY
 SECTION 7106(A)(2)(B) OF THE STATUTE AND, THEREFORE, IS NOT WITHIN THE
 DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
 THAT THE PETITION FOR REVIEW OF UNION PROPOSAL 6 BE, AND IT HEREBY IS,
 DISMISSED.
 
    REASONS:  SECTION 7106(A)(2)(B) /6/ RESERVES TO AGENCY MANAGEMENT THE
 RIGHT TO ASSIGN WORK TO POSITIONS OR EMPLOYEES.  IN AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 603, 621(1980) ENFORCED AS
 TO OTHER MATTERS SUB NOM.  DEPARTMENT OF DEFENSE V. FEDERAL LABOR
 RELATIONS AUTHORITY, . . . F.2D . . . (D.C. CIR. 1981), THE AUTHORITY
 DETERMINED THAT THE RIGHT TO ASSIGN WORK INCLUDES THE DISCRETION AS TO
 THE PARTICULAR EMPLOYEE TO WHOM WORK WILL BE ASSIGNED.  THUS, THE
 AUTHORITY HELD THAT A PROPOSAL WHICH WOULD REQUIRE WORK TO BE ASSIGNED
 TO A PARTICULAR EMPLOYEE OR POSITION WAS NOT WITHIN THE DUTY TO BARGAIN.
  UNION PROPOSAL 6 WOULD MANDATE THAT CERTAIN WORK, I.E., THE POINT
 COUNTS, BE PERFORMED BY A PARTICULAR EMPLOYEE OR POSITION, I.E., THE
 RESEARCH CONTROL CLERK, AND THAT THEY BE APPROVED BY THE IMMEDIATE
 SUPERVISOR.  SINCE THE PROPOSAL DEPRIVES MANAGEMENT OF ITS DISCRETION TO
 IDENTIFY THE PARTICULAR POSITION(S) OR EMPLOYEE(S) TO WHOM SUCH WORK
 WILL BE ASSIGNED, THE PROPOSAL MUST BE HELD TO BE INCONSISTENT WITH THE
 RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE AND,
 THEREFORE, NOT WITHIN THE DUTY TO BARGAIN.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 19, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN DECIDING THAT UNION PROPOSALS 1 THROUGH 5 ARE WITHIN THE DUTY
 TO BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS
 THEREOF.
 
    /2/ SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 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:
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED(.)
 
    /3/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SECTION 7106.  MANAGEMENT RIGHTS
 
   .          .          .          .
 
 
    (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(.)
 
    /4/ SECTION 7106(B)(2) PROVIDES:
 
    SECTION 7106.  MANAGEMENT RIGHTS
 
   .          .          .          .
 
 
    (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(.)
 
    /5/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 1999, AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT
 DIX, NEW JERSEY, 2 FLRA 152, 154-58 (1979), ENFORCED SUB NOM. DEPARTMENT
 OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, .  . . F.2D . . . (D.C.
 CIR. 1981).
 
    /6/ SEE NOTE 2, SUPRA.