National Treasury Employees Union (Union) and Internal Revenue Service (Agency)
[ v07 p275 ]
07:0275(42)NG
The decision of the Authority follows:
7 FLRA No. 42
NATIONAL TREASURY EMPLOYEES UNION
Union
and
INTERNAL REVENUE SERVICE
Agency
Case No. O-NG-34
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 (5 U.S.C.
7101-7135) (THE STATUTE). THE ISSUES PRESENTED RELATE TO THE
NEGOTIABILITY OF THE FOLLOWING FIVE UNION PROPOSALS. /1/
UNION PROPOSAL 1
ARTICLE 6, SECTION 3(K)(2).
A STEWARD, CHIEF STEWARD OR CHAPTER PRESIDENT WHO ENTERS A WORK AREA
PURSUANT TO THIS
SECTION WILL CHECK-IN WITH THE SUPERVISOR IN THAT WORK AREA. THE
CHIEF STEWARD AND CHAPTER
PRESIDENT AND STEWARD WILL HAVE CLEARANCE TO ENTER ALL WORK AREAS.
(ONLY THE UNDERSCORED
PORTION OF THE PROPOSAL IS IN DISPUTE).
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS INCONSISTENT WITH
SECTION 7106(A)(1) OF THE STATUTE /2/ AND IS, THEREFORE, OUTSIDE OF THE
DUTY TO BARGAIN, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE UNDERSCORED PORTION OF THE PROPOSAL IS
INCONSISTENT WITH MANAGEMENT'S RIGHT TO DETERMINE THE AGENCY'S INTERNAL
SECURITY PRACTICES UNDER SECTION 7106(A)(1) OF THE STATUTE; THEREFORE,
IT 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 THE DISPUTED PORTION OF
THE PROPOSAL BE, AND IT HEREBY IS DISMISSED.
REASONS: SECTION 7106(A)(1) OF THE STATUTE RESERVES TO MANAGEMENT
THE RIGHT TO DETERMINE INTERNAL SECURITY PRACTICES. THE INTERNAL
SECURITY PRACTICES OF THE AGENCY HEREIN INCLUDE THOSE PRACTICES WHICH
DIRECTLY RELATE TO AND ARE PART OF THE AGENCY'S PLAN TO PROTECT THE
PRIVACY OF TAXPAYERS BY GUARDING AGAINST THE UNAUTHORIZED DISCLOSURE OF
TAX INFORMATION AT ITS FACILITIES. SEE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 15 AND DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, NORTH ATLANTIC REGION, 2 FLRA 875(1980). IN
THAT CASE, ALSO INVOLVING THE INTERNAL REVENUE SERVICE, THE AUTHORITY
HELD THAT A PROPOSAL REQUIRING ALL IDENTIFICATION CARDS "TO BE DONE AWAY
WITH" OR THAT IDENTIFICATION CARDS OR CREDENTIALS BE ISSUED TO EMPLOYEES
WITH INSTRUCTIONS ONLY TO CARRY THEM AND PRODUCE THEM IF CHALLENGED
WOULD INTERFERE WITH MANAGEMENT'S DETERMINATION THAT THE VISIBLE DISPLAY
OF IDENTIFICATION CARDS OR BADGES IS AN ESSENTIAL COMPONENT OF THE
AGENCY'S INTERNAL SECURITY PRACTICES.
IN THE PRESENT CASE, PREVENTION OF THE UNAUTHORIZED DISCLOSURE OF TAX
INFORMATION IS THE BASIS OF THE AGENCY'S CLAIM THAT THE UNION'S PROPOSAL
VIOLATES ITS INTERNAL SECURITY PLAN. THAT IS, THE AGENCY HAS
ESTABLISHED A PRACTICE OF RESTRICTING ACCESS TO CERTAIN WORK AREAS AND
ALLOWING ONLY EMPLOYEES ON OFFICIAL BUSINESS TO ENTER THOSE AREAS SO AS
TO CONTROL ACCESS TO AND PREVENT UNAUTHORIZED DISCLOSURE OF TAX DATA.
THE PROPOSAL, WHICH WOULD ALLOW UNION REPRESENTATIVES TO ENTER "ALL WORK
ARES," DIRECTLY INTERFACES WITH THIS PRACTICE AND WOULD HAVE THE EFFECT
OF NEGATING OR REVERSING IT. THUS, THE PROPOSAL IS INCONSISTENT WITH
SECTION 7106(A)(1) OF THE STATUTE AND IS OUTSIDE OF THE DUTY TO BARGAIN.
THE UNION STATES THAT IT "MERELY SEEKS TO NEGOTIATE A PROCEDURE WHICH
ENSURES EQUAL UNION REPRESENTATION TO ALL EMPLOYEES IN EVERY WORK AREA,"
AND CHARACTERIZES ITS PROPOSAL AS SEEKING TO IMPLEMENT STATUTORY
REPRESENTATION RIGHTS AND DUTIES. HOWEVER, THIS CHARACTERIZATION CANNOT
SERVE TO NEGATE THE AUTHORITY'S CONCLUSION THAT THE PROPOSAL IS
INCONSISTENT WITH A STATUTORILY PROTECTED MANAGEMENT RIGHT.
NEVERTHELESS, IT SHOULD BE NOTED THAT OUR DECISION THAT THE PARTICULAR
PROPOSAL IN DISPUTE IS NONNEGOTIABLE NEED NOT PREVENT THE UNION FROM
REPRESENTING THE INTERESTS OF ALL BARGAINING UNIT EMPLOYEES, REGARDLESS
OF WORK AREA. THE RECORD INDICATES THAT THE AGENCY HAS DEMONSTRATED A
WILLINGNESS TO PROVIDE MEETING PLACES OUTSIDE THE RESTRICTED WORK AREAS
AND TO PROVIDE AGENCY ESCORTS FOR UNION REPRESENTATIVES CONDUCTING
HEALTH AND SAFETY INSPECTIONS AND INSPECTING OFFICIAL BULLETIN BOARDS
INSIDE THE RESTRICTED WORK AREAS. MOREOVER, ADDITIONAL PROCEDURES AND
PRACTICES COULD BE NEGOTIATED BETWEEN THE PARTIES WHICH WOULD NOT NEGATE
AN ESSENTIAL COMPONENT OF THE AGENCY'S INTERNAL SECURITY PLAN AND AT THE
SAME TIME WOULD ENABLE THE UNION TO ACHIEVE ITS STATED PURPOSE OF
IMPLEMENTING ITS STATUTORY RIGHTS AND DUTIES WITH RESPECT TO THE
REPRESENTATION OF EMPLOYEES.
UNION PROPOSALS 2-4
UNION PROPOSAL 2
ARTICLE 7, SECTION 2(A)(2), 2(A)(3), 2(A)(7), 2(A)(8), AND 2(A)(9).
A. THE TERMS OF THIS ARTICLE WILL APPLY TO THE FOLLOWING PLACEMENT
ACTIONS:
. . . .
2. FILLING OF A POSITION BY REASSIGNMENT, TRANSFER OR REINSTATEMENT;
3. FILLING OF A POSITION WHEN OTHER THAN BARGAINING UNIT EMPLOYEES
ARE TO BE CONSIDERED;
. . . .
7. FILLING A POSITION ABOVE THE JOURNEYMAN LEVEL BY A NEW HIRE;
8. SELECTING EMPLOYEES FOR OVERSEAS ASSIGNMENTS; AND
9. FILLING A POSITION BY REASSIGNMENT OR TRANSFER OF A
NON-BARGAINING UNIT EMPLOYEE TO A
BARGAINING UNIT POSITION.
UNION PROPOSAL 3
ARTICLE 7, SECTION 3.
A. THE AREA OF CONSIDERATION FOR A POSTED VACANCY IN A DISTRICT
SHALL BE EMPLOYEES IN THE
DISTRICT IN WHICH THE VACANCY OCCURS. THE AREA OF CONSIDERATION FOR
A POSTED VACANCY IN THE
NATIONAL OFFICE SHALL BE EMPLOYEES IN THE NATIONAL OFFICE ASSISTANT
COMMISSIONER (AREA) WHERE
THE VACANCY OCCURS. THE AREA OF CONSIDERATION FOR POSTED VACANCIES
FOR PROFESSIONAL POSITIONS
IN THE REGION SHALL BE REGIONAL-OFFICE WIDE AND COMMUTING AREA WIDE
FOR NON-PROFESSIONAL
POSITIONS; PROVIDED THAT THE AREA FOR CONSIDERATION FOR A POSTED
VACANT APPEALS OFFICER
POSITION AT GS-13 AND BELOW SHALL BE REGIONAL-OFFICE WIDE AND AT
OTHER IRS ACTIVITIES WITHIN
THE COMMUTING AREA IN WHICH THE VACANCY OCCURS.
B. VOLUNTARY APPLICATIONS FROM OUTSIDE ONE OF THE AREAS OF
CONSIDERATION AS DESCRIBED
ABOVE SHALL BE CONSIDERED ONLY WHEN CIRCUMSTANCES OF AN EXTRAORDINARY
NATURE (E.G., LOSS OF
HEALTH OF THE AFFECTED EMPLOYEE OR IMMEDIATE FAMILY) EXIST.
C. IF THE AREA OF CONSIDERATION DOES NOT YIELD THREE HIGHLY
QUALIFIED CANDIDATES, THE
EMPLOYER MAY CONSIDER APPLICANTS FROM OTHER SOURCES.
UNION PROPOSAL 4
ARTICLE 7, SECTION 4(D)
VACANCIES NOT SET FORTH IN A VACANCY ANNOUNCEMENT MAY NOT BE FILLED
EXCEPT THROUGH THE
POSTING OF A NEW VACANCY ANNOUNCEMENT.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER, AS PRINCIPALLY ALLEGED BY THE AGENCY, THESE
PROPOSALS ARE OUTSIDE THE DUTY TO BARGAIN BECAUSE THEY ARE INCONSISTENT
WITH MANAGEMENT'S RIGHT TO MAKE SELECTIONS WITH RESPECT TO FILLING
POSITIONS UNDER SECTION 7106(A)(2)(C) OF THE STATUTE /3/ AND/OR WITH
CHAPTER 335 OF THE FEDERAL PERSONNEL MANUAL (FPM). /4/
OPINION
CONCLUSION AND ORDER: THE UNION'S PROPOSALS ARE NOT INCONSISTENT
WITH SECTION 7106(A)(2(C) OF THE STATUTE OR WITH THE MERIT PROMOTION
REQUIREMENTS OF CHAPTER 335 OF THE FPM AND ARE NOT OTHERWISE OUTSIDE 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 AGENCY SHALL UPON REQUEST )OR AS OTHERWISE AGREED TO BY THE
PARTIES) BARGAIN CONCERNING THE SUBJECT PROPOSALS. /5/
REASONS: BASED ON THE RECORD, ARTICLE 7 OF THE COLLECTIVE BARGAINING
AGREEMENT CONCERNS THE USE OF COMPETITIVE PROCEDURES FOR FILING
BARGAINING UNIT VACANCIES. THE ONLY PROVISIONS OF ARTICLE 7 WHICH ARE
IN DISPUTE ARE UNION PROPOSALS 2, 3, AND 4. SPECIFICALLY, PROPOSAL 2
WOULD ENUMERATE THE PERSONNEL ACTIONS COVERED BY THE COMPETITIVE
PROCEDURES PROVIDED IN ARTICLE 7 FOR FILLING BARGAINING UNIT POSITIONS;
PROPOSAL 3 WOULD DEFINE THE INITIAL AREA OF CONSIDERATION IN WHICH THERE
WOULD BE INTENSIVE SEARCH FOR CANDIDATES TO FILL POSITIONS; AND
PROPOSAL 4 WOULD REQUIRE THE ANNOUNCEMENT AND POSTING OF ALL BARGAINING
UNIT VACANCIES. THE PROPOSALS, ACCORDING TO THE UNION, ARE NOT INTENDED
TO LIMIT WHO COULD BE CONSIDERED OR SELECTED BY THE AGENCY TO FILL UNIT
VACANCIES; RATHER, THEY ARE INTENDED ONLY TO REQUIRE THE USE OF CERTAIN
INITIAL PROCEDURES IN SEEKING TO FILL SUCH VACANCIES.
AMONG ITS NUMEROUS CONTENTIONS, THE AGENCY PRINCIPALLY TAKES THE
POSITION THAT THE PROPOSALS TAKEN TOGETHER INTERFERE WITH MANAGEMENT'S
RIGHTS UNDER SECTION 7106(A)(2)(C)(II) OF THE STATUTE AND ARE
INCONSISTENT WITH FPM CHAPTER 335 BY REQUIRING THE USE OF CERTAIN
PROCEDURES BEFORE MANAGEMENT CAN EXERCISE ITS RIGHT TO MAKE SELECTIONS
FROM ANY APPROPRIATE SOURCE WHEN FILLING VACANCIES.
THE AUTHORITY NOTES THAT THE PROPOSALS IN QUESTION ARE INTENDED,
ACCORDING TO THE UNION, TO REQUIRE THE USE OF COMPETITIVE PROCEDURES IN
IDENTIFYING THE INITIAL SOURCE OF CANDIDATES TO BE CONSIDERED, BUT THEY
ARE NOT INTENDED TO BAR SUBSEQUENT CONSIDERATION OF CANDIDATES FROM ANY
OTHER APPROPRIATE SOURCE. THE LANGUAGE OF THE PROPOSALS IS SUSCEPTIBLE
TO THIS INTERPRETATION, WHICH THE AUTHORITY ADOPTS. /6/ THUS, THE
INSTANT PROPOSALS WOULD PRESERVE THE DISCRETION INHERENT IN MANAGEMENT'S
RIGHT TO MAKE SELECTIONS UNDER SECTION 7106(A)(2)(C) /7/ AND THEY ARE
NOT INCONSISTENT WITH FPM CHAPTER 335. SEE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 604(1980), ENFORCED SUB
NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . . .
F.2D . . . (D.C. CIR. 1981), WHERE THE AUTHORITY HELD NEGOTIABLE A
PROPOSAL WHICH PROVIDED FOR THE USE OF COMPETITIVE PROCEDURES BUT
PRESERVED MANAGEMENT'S RIGHT TO SELECT EMPLOYEES FOR ASSIGNMENT FROM ANY
APPROPRIATE SOURCE.
IN ADDITION, THE AGENCY ARGUES THAT THE PROPOSALS, BY REQUIRING THE
USE OF COMPETITIVE PROCEDURES BEFORE IT CAN EXERCISE ITS RIGHT TO SELECT
FROM ANY OTHER APPROPRIATE SOURCE, WOULD SO DELAY SELECTION AS TO
EFFECTIVELY NEGATE THAT RIGHT. 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 MANAGEMENT
RIGHTS IN SUBSECTION (A) DOES NOT PRECLUDE THE NEGOTIATION OF PROCEDURES
WHICH MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING THOSE RIGHTS. /8/
IN THIS REGARD, IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE,
FORT DIX, NEW JERSEY, 2 FLRA 153(1979), ENFORCED SUB NOM. DEPARTMENT OF
DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D . . . (D.C.
CIR. 1981), THE AUTHORITY, UPON REVIEWING THE LEGISLATIVE HISTORY OF THE
STATUTE AS IT PERTAINS TO SECTION 7106(B)(2), CONCLUDED THAT CONGRESS,
WHEN IT ENACTED SUBSECTION (B)(2), 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 WITH RESPECT TO THE SPECIFIED MANAGEMENT RIGHT. IN THE PRESENT
CASE, THERE IS NO INDICATION IN THE RECORD THAT REQUIRING THE AGENCY TO
USE COMPETITIVE PROCEDURES PRIOR TO EXERCISING ITS RIGHT TO MAKE
SELECTIONS FROM ANY OTHER APPROPRIATE SOURCE WOULD IN EFFECT PREVENT THE
AGENCY FROM ACTING AT ALL WITH RESPECT THERETO.
THE AGENCY RAISES A NUMBER OF OTHER CONTENTIONS PARTICULARLY WITH
RESPECT TO THE NEGOTIABILITY OF UNION PROPOSAL 2 WHICH SPECIFIES THE
PLACEMENT ACTIONS THAT WOULD INITIALLY HAVE TO BE POSTED AND PROCESSED
PURSUANT TO THE COMPETITIVE PROCEDURES. IN THIS REGARD, THE AGENCY
CONTENDS THAT THE ONLY PERSONNEL ACTIONS WHICH MAY BE COVERED BY
NEGOTIATED COMPETITIVE PROCEDURES ARE THOSE WHICH INVOLVE A "PROMOTION"
UNDER SECTION 7106(A)(2)(C)(I); THUS, A SELECTION FROM "ANY OTHER
APPROPRIATE SOURCE" UNDER SECTION 7106(A)(2)(C)(II) (SUCH AS
REASSIGNMENT, TRANSFER, OR REINSTATEMENT AS REFERRED TO IN SUBSECTION 2
OF UNION PROPOSAL 2) MAY NOT BE SUBJECT TO SUCH PROCEDURES. HOWEVER, IN
DIX-MCGUIRE, SUPRA, THE AUTHORITY HELD, WITHOUT MAKING THE DISTINCTION
URGED BY THE AGENCY HEREIN, THAT PROCEDURES WHICH MANAGEMENT WILL
OBSERVE IN EXERCISING ITS STATUTORY RIGHTS ARE TO BE NEGOTIATED EXCEPT
TO THE EXTENT THAT SUCH PROCEDURES WOULD PREVENT THE AGENCY FROM ACTING
AT ALL. THUS, PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EXERCISING
ITS RIGHT TO FILL POSITIONS UNDER EITHER SUBSECTION OF SECTION
7106(A)(2)(C) ARE SUBJECT TO NEGOTIATION WHERE, AS HERE, SUCH PROCEDURES
WOULD PRESERVE THE AGENCY'S OPTION ULTIMATELY TO MAKE SELECTIONS AS IT
DEEMS APPROPRIATE.
THE AGENCY ALSO ARGUES THAT REQUIRING IT TO APPLY COMPETITIVE
PROCEDURES TO REASSIGNMENTS (SUBSECTIONS 2 AND 9 OF PROPOSAL 2) AND TO
THE SELECTION OF EMPLOYEES FOR OVERSEAS ASSIGNMENTS (SUBSECTION 8 OF
PROPOSAL 2) IS INCONSISTENT WITH ITS RIGHTS, RESPECTIVELY, TO ASSIGN
EMPLOYEES AND TO ASSIGN WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF THE
STATUTE. /9/ NEITHER OF THESE ARGUMENTS CAN BE SUSTAINED SINCE, AS
STATED PREVIOUSLY, THE PROPOSED PROCEDURES ONLY REQUIRE CERTAIN
CANDIDATES BE CONSIDERED BEFORE OTHERS AND THUS DO NOT INTERFERE WITH
MANAGEMENT'S EXERCISE OF ANY OF ITS RIGHTS UNDER THE STATUTE.
FINALLY, WITH RESPECT TO UNION PROPOSAL 2, THE AGENCY ARGUES THAT THE
ACT OF FILLING A POSITION BY REASSIGNMENT OR TRANSFER OF A
NON-BARGAINING UNIT EMPLOYEE TO A BARGAINING UNIT POSITION (SUBSECTION 9
OF THE PROPOSAL) DOES NOT CONCERN CONDITIONS OF EMPLOYMENT OF BARGAINING
UNIT EMPLOYEES WITHIN THE MEANING OF SECTION 7103(A)(12) AND (14) OF THE
STATUTE /10/ AND, THUS, THERE IS NO DUTY TO BARGAIN OVER THIS MATTER.
THIS AGENCY ARGUMENT LIKEWISE CANNOT BE SUSTAINED. UNION PROPOSALS 2,
3, AND 4, AS RELEVANT HERE, WOULD ESTABLISH PROCEDURES FOR FILLING
VACANCIES WITHIN THE BARGAINING UNIT WHICH WOULD HAVE TO BE FOLLOWED
BEFORE SUCH VACANCIES COULD BE FILLED BY A NON-BARGAINING UNIT EMPLOYEE.
PROCEDURES CONCERNING SUCH BARGAINING UNIT VACANCIES CLEARLY CONCERN
PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS,
I.E., CONDITIONS OF EMPLOYMENT, OF BARGAINING UNIT EMPLOYEES WITHIN THE
MEANING OF SECTION 7103(A)(12) AND (14). /11/
WITH RESPECT TO UNION PROPOSAL 3, SECTION A CONCERNS THE INITIAL AREA
OF CONSIDERATION IN WHICH AN INTENSIVE SEARCH FOR CANDIDATES TO FILL
POSITIONS WOULD BE MADE. THE UNION STATES THAT THIS SECTION PROVIDES A
PROCEDURE WHEREBY EMPLOYEES FROM WITHIN THE AREA DEFINED IN THE PROPOSAL
WHO APPLY ARE ORDINARILY CONSIDERED FIRST FOR VACANCIES. FURTHER, THE
UNION ASSERTS THAT THE PROPOSAL IS NOT INTENDED TO PREVENT ANYONE
OUTSIDE THE INITIAL AREA OF CONSIDERATION FROM APPLYING FOR VACANCIES OR
TO PREVENT THE AGENCY FROM EXPANDING THE AREA OF CONSIDERATION OR FROM
MAKING SELECTIONS FROM ANY APPROPRIATE SOURCE.
UNION PROPOSAL 3, IN ALL RELEVANT RESPECTS, BEARS NO MATERIAL
DIFFERENCE FROM THE PROPOSAL HELD NEGOTIABLE IN ASSOCIATION OF CIVILIAN
TECHNICIANS, DELAWARE CHAPTER AND NATIONAL GUARD BUREAU, DELAWARE
NATIONAL GUARD, 3 FLRA NO. 9(1980). IN THAT CASE, THE AUTHORITY FOUND
THAT A PROPOSAL WHICH DESIGNATED THE INITIAL AND INCREMENTALLY EXPANDED
AREAS OF CONSIDERATION MERELY PROVIDED A NEGOTIABLE PROCEDURE UNDER
SECTION 7106(B)(2) FOR DEFINING SUCH AREAS OF CONSIDERATION. IN
CONCLUDING THAT THE PROPOSAL DID NOT CONFLICT WITH MANAGEMENT'S RIGHT TO
MAKE SELECTIONS, THE AUTHORITY RELIED ON ITS DECISION IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 331 AND VETERANS
ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, 2 FLRA 428(1980),
STATING THE PRINCIPLE OF THAT EARLIER DECISION TO BE AS FOLLOWS: /12/
(THE) PROPOSAL WHICH WOULD REQUIRE ONLY THAT CONSIDERATION BE GIVEN
TO EMPLOYEES WITHIN THE
BARGAINING UNIT IN FILLING VACANT POSITIONS BUT WOULD NOT PREVENT
MANAGEMENT FROM CONSIDERING
OTHER APPLICANTS, OR EXPANDING THE AREA OF CONSIDERATION ONCE
BARGAINING UNIT EMPLOYEES WERE
CONSIDERED, OR USING ANY OTHER APPROPRIATE SOURCE IN FILLING SUCH
VACANCIES, DID NOT PREVENT
MANAGEMENT FROM EXERCISING ITS RESERVED RIGHT TO SELECT.
CONSEQUENTLY, FOR THE REASONS SET FORTH IN GREATER DETAIL IN DELAWARE
NATIONAL GUARD, AND CONTRARY TO THE AGENCY'S ARGUMENTS HEREIN, UNION
PROPOSAL 3 IS NEGOTIABLE SINCE IT MERELY PROVIDES A PROCEDURE FOR
DEFINING THE INITIAL ARE OF CONSIDERATION WHEN FILLING THE VACANCIES
INVOLVED; INDEED, PARAGRAPH C THEREOF EXPRESSLY CONTEMPLATES THAT " . .
. THE EMPLOYER MAY CONSIDER APPLICANTS FROM OTHER SOURCES." THUS, THIS
PROPOSAL DOES NOT CONFLICT WITH SECTION 7106(A)(2)(C) OF THE STATUTE OF
FPM CHAPTER 335. /13/ THE PROCEDURE WOULD NOT PREVENT THE AGENCY FROM
ACTING AT ALL TO EXERCISE ITS STATUTORY AUTHORITY /14/ AND IS WITHIN THE
DUTY TO BARGAIN UNDER SECTION 7106(B)(2). /15/
LASTLY, WITH RESPECT TO UNION PROPOSAL 4 CONCERNING THE POSTING OF
VACANCY ANNOUNCEMENTS PRIOR TO FILLING VACANCIES IN BARGAINING UNIT
POSITIONS, THIS PROPOSAL MERELY WOULD INSURE THAT ALL BARGAINING UNIT
VACANCIES ARE ANNOUNCED SO THAT UNIT EMPLOYEES HAVE THE OPPORTUNITY TO
APPLY FOR AND TO BE WITHIN THE INITIAL AREA OF CONSIDERATION. IN
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INTERNATIONAL
COUNCIL OF UNITED STATES MARSHALS SERVICE LOCALS AND DEPARTMENT OF
JUSTICE, UNITED STATES MARSHALS SERVICE, 2 FLRA 765(1980), THE AUTHORITY
FOUND THAT A PROPOSAL WHICH REQUIRED MANAGEMENT TO ANNOUNCE ALL
VACANCIES FOR WHICH BARGAINING UNIT EMPLOYEES WERE ELIGIBLE TO APPLY DID
NOT REQUIRE MANAGEMENT TO SELECT FROM WITHIN THE BARGAINING UNIT.
THEREFORE, THE AUTHORITY DECIDED THAT THE PROPOSAL ESTABLISHED A
NEGOTIABLE PROCEDURE. BASED ON THE MARSHALS SERVICE DECISION, UNION
PROPOSAL 4, WHICH REQUIRES THE AGENCY HEREIN TO ANNOUNCE ALL VACANCIES
IN THE BARGAINING UNIT BUT DOES NOT REQUIRE IT TO SELECT FROM WITHIN THE
UNIT, IS NOT INCONSISTENT WITH SECTION 7106(A)(2)(C) OF THE STATUTE OR
FPM CHAPTER 335 AND IS WITHIN THE DUTY TO BARGAIN.
UNION PROPOSAL 5
ARTICLE 25, SECTION 1(D):
THE FOLLOWING FACTORS AND WEIGHTS WILL BE USED IN EVALUATING WAE
EMPLOYEES:
QUALITY 7
JOB KNOWLEDGE 5
DEALINGS WITH TAXPAYERS 5
UTILIZATION OF TIME 5
ORAL EXPRESSION 2
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS INCONSISTENT WITH
SECTION 7106(A)(2) OF THE STATUTE /16/ AND, THEREFORE, IS OUTSIDE THE
DUTY TO BARGAIN, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE PROPOSAL IS INCONSISTENT WITH MANAGEMENT'S
RIGHT TO LAYOFF EMPLOYEES UNDER SECTION 7106(A)(2)(A) 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 THE
DISPUTED PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
REASONS: A WAE EMPLOYEE, AS EXPLAINED BY THE UNION, IS A "TEMPORARY"
OR "SEASONAL" EMPLOYEE WHO IS USED BY THE AGENCY PRIMARILY DURING THE
TAX FILING SEASON AND MAY BE FURLOUGHED WITHOUT THE PROTECTION OF
ADVERSE ACTION PROCEDURES. WHILE, ON ITS FACE, THE PROPOSAL IS
CONCERNED ONLY WITH THE FACTORS AND WEIGHTS THE AGENCY WILL USE TO
EVALUATE THE PERFORMANCE OF SUCH EMPLOYEES, THE UNION GOES ON TO EXPLAIN
THAT THE INTENDED PURPOSE OF THE PROPOSAL IS TO INSURE THE USE OF WHAT
THE UNION VIEWS TO BE EQUITABLE FURLOUGH AND RECALL PROCEDURES. MORE
PARTICULARLY, THE INTENT IS TO ESTABLISH A RANKING METHOD OR PROCEDURE
REQUIRING THE AGENCY, ONCE IT DECIDES TO FURLOUGH WAE EMPLOYEES, TO
IDENTIFY WHICH SUCH EMPLOYEES BY ORDER OF RANK BASED ON THE CRITERIA SET
FORTH IN THE PROPOSAL. IN THIS REGARD, THE UNION STATES THAT "THE
EMPLOYEE WITH THE LOWEST EVALUATION IS FIRST FURLOUGHED AND LAST
RECALLED."
IT IS CLEAR THAT UNDER THE STATUTE A PROPOSAL WHICH WOULD DIRECTLY
INTERFERE WITH THE EXERCISE OF THE MANAGEMENT RIGHTS SPECIFIED IN
SECTION 7106 IS BARRED FROM NEGOTIATIONS /17/ AND, THUS, WOULD NOT
ESTABLISH A PROCEDURE WHICH WOULD BE NEGOTIABLE PURSUANT TO SECTION
7106(B)(2) OF THE STATUTE. (SEE NOTE 8, SUPRA.) THUS, IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1603 AND NAVY
EXCHANGE, NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, 3 FLRA NO.
1(1980), THE AUTHORITY HELD TO BE OUTSIDE THE DUTY TO BARGAIN A PROPOSAL
WHICH WOULD HAVE REQUIRED THE AGENCY TO SEPARATE CERTAIN CATEGORIES OF
EMPLOYEES BEFORE IT COULD REDUCE BELOW A SPECIFIED LEVEL THE HOURS OF
WORK PER WEEK OF OTHER CATEGORIES OF EMPLOYEES. THE AUTHORITY FOUND
THAT THE PROPOSAL DIRECTLY INTERFERED WITH THE AGENCY'S DISCRETION TO
DETERMINE WHETHER TO REMOVE (I.E., TO "SEPARATE") EMPLOYEES AND IF SO,
WHICH EMPLOYEES TO REMOVE, IN VIOLATION OF SECTION 7106(A)(2)(A) OF THE
STATUTE.
SIMILARLY, IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO,
2 FLRA 604(1980), ENFORCED SUB NOM. AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D . . . (D.C.
CIR. 1981), THE AUTHORITY HELD TO BE OUTSIDE THE DUTY TO BARGAIN
PROPOSALS WHICH WOULD HAVE COMPELLED THE SELECTION OF PARTICULAR
INDIVIDUALS FOR TEMPORARY ASSIGNMENT TO OTHER POSITIONS BECAUSE SUCH
PROPOSALS DIRECTLY INTERFERED WITH THE RIGHT OF THE AGENCY TO ASSIGN
EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE.
LIKEWISE, IN THE PRESENT CASE, CONTRARY TO THE UNION'S EXPLANATION AS
TO THE PURPOSE OF THE PROPOSAL, I.E., TO ESTABLISH FURLOUGH AND RECALL
PROCEDURES, THE PROPOSAL DIRECTLY INTERFERES WITH MANAGEMENT'S RIGHT TO
LAYOFF EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE. THAT IS,
BASED ON THE UNION'S PREVIOUSLY QUOTED STATEMENT, THE PROPOSAL WOULD
REQUIRE THE AGENCY TO "FURLOUGH" A PARTICULAR EMPLOYEE, I.E., "THE
EMPLOYEE WITH THE LOWEST EVALUATION" UNDER THE PROPOSED RANKING SCHEME,
ONCE IT HAD DECIDED TO "FURLOUGH" (I.E., IN THE WORDS OF THE STATUTE, TO
"LAYOFF") AT ALL. BY COMPELLING THE LAYOFF OF PARTICULAR EMPLOYEES, THE
PROPOSAL DIRECTLY INTERFERES WITH THE AGENCY'S DISCRETION TO DETERMINE
WHICH EMPLOYEES TO LAYOFF AND, THUS, DOES NOT SET FORTH A NEGOTIABLE
PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE. THEREFORE, THE
PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN.
A PROPOSAL EXPLICITLY DRAFTED TO CONFORM TO THE UNION'S STATED
PURPOSE IN SEEKING TO NEGOTIATE THIS PROPOSAL, I.E., TO ESTABLISH
EQUITABLE FURLOUGH AND RECALL PROCEDURES, WOULD BE WITHIN THE AGENCY'S
DUTY TO BARGAIN. SUCH A PROPOSAL WOULD NOT BE INCONSISTENT WITH SECTION
7106(A)(2)(A) OF THE STATUTE IN THAT IT WOULD CONCERN PROCEDURES
MANAGEMENT WILL FOLLOW IN EXERCISING ITS RIGHTS UNDER SECTION
7106(A)(2)(A), WITHOUT IMPOSING A LIMITATION AS THE INSTANT PROPOSAL
DOES, SUCH AS REQUIRING THE AGENCY TO "FURLOUGH" PARTICULAR EMPLOYEES,
WHICH WOULD PREVENT THE EXERCISE OF THE RIGHT.
ISSUED, WASHINGTON, D.C., NOVEMBER 25, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ THE UNION'S PETITION FOR REVIEW INCLUDED TWO ADDITIONAL PROPOSALS
ENTITLED "ARTICLE 7,SECTION 6(A)" AND "ARTICLE 7, SECTION 5(F),"
RESPECTIVELY. HOWEVER, THE AGENCY, IN ITS STATEMENT OF POSITION,
WITHDREW ITS ALLEGATION OF NONNEGOTIABILITY WITH RESPECT TO THE FORMER.
AS TO THE LATTER, IT STATED, WITHOUT SUBSEQUENT CONTRADICTION BY THE
UNION, THAT IT HAD NOT ALLEGED THE PROPOSAL WAS NONNEGOTIABLE.
THEREFORE, THE DISPUTE BETWEEN THE PARTIES AS TO BOTH PROPOSALS HAS BEEN
RENDERED MOOT AND THEY WILL NOT BE FURTHER CONSIDERED HEREIN.
/2/ SECTION 7106(A)(1) OF THE STATUTE PROVIDES:
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--
(1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
EMPLOYEES, AND INTERNAL
SECURITY PRACTICES OF THE AGENCY(.)
/3/ SECTION 7106(A)(2)(C) PROVIDES:
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--
. . . .
(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(.)
/4/ FPM CHAPTER 335, SUBCHAPTER 1, PROVIDES IN RELEVANT PART:
1-4. MERIT PROMOTION REQUIREMENTS
REQUIREMENT 1
EACH AGENCY MUST ESTABLISH PROCEDURES FOR PROMOTING EMPLOYEES WHICH
ARE BASED ON MERIT AND
ARE AVAILABLE IN WRITING TO CANDIDATES. AGENCIES MUST LIST
APPROPRIATE EXCEPTIONS, INCLUDING
THOSE REQUIRED BY LAW OR REGULATION (SEE 1-5). ACTIONS UNDER A
PROMOTION PLAN-- WHETHER
IDENTIFICATION, QUALIFICATION, EVALUATION, OR SELECTION OF
CANDIDATES-- SHALL BE MADE WITHOUT
REGARD TO POLITICAL, RELIGIOUS, OR LABOR ORGANIZATION AFFILIATION OR
NONAFFILIATION, MARITAL
STATUS, RACE, COLOR, SEX, NATIONAL ORIGIN, NONDISQUALIFYING PHYSICAL
HANDICAP, OR AGE, AND
SHALL BE BASED SOLELY ON JOB-RELATED CRITERIA.
. . . .
REQUIREMENT 4
SELECTION PROCEDURES WILL PROVIDE FOR MANAGEMENT'S RIGHT TO SELECT OR
NOT SELECT FROM AMONG
A GROUP OF BEST QUALIFIED CANDIDATES. THEY WILL ALSO PROVIDE FOR
MANAGEMENT'S RIGHT TO SELECT
FROM OTHER APPROPRIATE SOURCES, SUCH AS REEMPLOYMENT PRIORITY LISTS,
REINSTATEMENT, TRANSFER,
HANDICAPPED, OR VETERANS READJUSTMENT ELIGIBLES OR THOSE WITHIN REACH
ON AN APPROPRIATE OPM
CERTIFICATE. IN DECIDING WHICH SOURCE OR SOURCES TO USE, AGENCIES
HAVE AN OBLIGATION TO
DETERMINE WHICH IS MOST LIKELY TO BEST MEET THE AGENCY MISSION
OBJECTIVES, CONTRIBUTE FRESH
IDEAS AND NEW VIEWPOINTS, AND MEET THE AGENCY'S AFFIRMATIVE ACTION
GOALS.
/5/ IN DECIDING THAT THE SUBJECT PROPOSALS ARE WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THEIR MERITS.
/6/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 331 AND VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, 2
FLRA 428(1980).
/7/ THE AUTHORITY, MOREOVER, DOES NOT CONSTRUE THESE PROPOSALS AS
REQUIRING COMPETITIVE PROCEDURES TO BE EMPLOYED IN SITUATIONS WHERE
NON-COMPETITIVE PROCEDURES FOR FILLING A VACANCY MAY BE MANDATED BY LAW
OR APPROPRIATE REGULATION.
/8/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES:
SEC. 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(.)
/9/ SECTION 7106(A)(2)(A) AND (B) PROVIDES:
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(.)
/10/ SECTION 7103(A)(12) AND (14) PROVIDES
SEC. 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
. . . .
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES . . . .
. . . .
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS . . . .
/11/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
2 AND DEPARTMENT OF THE ARMY, MILITARY DISTRICT OF WASHINGTON, 4 FLRA
NO. 60(1980).
/12/ ASSOCIATION OF CIVILIAN TECHNICIANS, DELAWARE CHAPTER AND
NATIONAL GUARD BUREAU, DELAWARE NATIONAL GUARD, 3 FLRA NO. 9(1980) AT 3.
/13/ THE AGENCY MAKES NUMEROUS OTHER ARGUMENTS WITH RESPECT TO ITS
ABILITY TO CONSIDER AND SELECT QUALIFIED APPLICANTS OR APPLICANTS FROM
SPECIFIED APPROPRIATE SOURCES, ALL OF WHICH ARE BASED ON ITS ASSUMPTION
THAT THE PROPOSAL CONSTITUTES A RESTRICTION ON THE APPLICANTS MANAGEMENT
COULD CONSIDER AND SELECT. BASED UPON THE AUTHORITY'S FINDING THAT THE
PROPOSAL MERELY SETS FORTH A PROCEDURE AND IN NO WAY INTERFERES WITH
MANAGEMENT'S ABILITY TO CONSIDER AND SELECT ANY APPLICANT, THESE
CONTENTIONS CANNOT BE SUSTAINED.
/14/ CF. NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE
SERVICE,2 FLRA 281(1979).
/15/ SEE ALSO ASSOCIATION OF CIVILIAN TECHNICIANS, INC., PENNSYLVANIA
STATE COUNCIL AND ADJUTANT GENERAL, DEPARTMENT OF MILITARY AFFAIRS,
PENNSYLVANIA, 4 FLRA NO. 10(1980).
/16/ SECTION 7106(A)(2) PROVIDES, IN RELEVANT PART:
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(.)
/17/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
NATIONAL COUNCIL OF CSA LOCALS AND COMMUNITY SERVICES ADMINISTRATION, 5
FLRA NO. 98(1981) AT 6.