[ v13 p48 ]
The decision of the Authority follows:
13 FLRA No. 9 NATIONAL TREASURY EMPLOYEES UNION Union and INTERNAL REVENUE SERVICE, DALLAS DISTRICT Agency Case No. O-NG-506 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises issues relating to the negotiability of two Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 ARTICLE II When general assignments of Austin EP (Employee Plans) and EO (Exempt Organizations) employees to Houston geographical area examination cases are required to clear up Houston backlogs, assignment will be made on an equitable basis, without regard to grade, sex, or group. Upon request an employee selected for a certain assignment will be provided a written statement of reasons as to why he/she has been selected over any other employee. Based on the Agency's uncontroverted statement, the "Houston backlogs" contain cases with disparate levels of difficulty and areas of specialization. In this connection, the Agency also states, without contradiction, that: * * * grade and group are valid, work-related considerations, since the level of work difficulty is often assigned on the basis of an employee's grade level. Furthermore, in the IRS, employee groups often specialize in different areas of expertise. /1/ The right "to assign work" pursuant to section 7106(a)(2)(B) of the Statute includes the right to determine the particular employee to whom, or positions to which, duties will be assigned. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980). Union proposal 1, however, would replace the managerial discretion inherent in the right to assign work by requiring that work be assigned "on an equitable basis, without regard to grade . . . or group." Hence, as union proposal 1 would prevent management from taking into account valid considerations in making work assignments, it directly interferes with the Agency's right "to assign work" and is outside the duty to bargain. Union Proposal 2 ALTERNATIVE V To the extent that the agency determines that both determination and examination work are available for performance by EP (Employee Plans) (employ)ees located in Austin, and that both determination and examination work are included within EP (employ)ees position descriptions, the agency will endeavor to ensure that these EP (employ)ees are provided the opportunity to perform both determination and examination work to the extent necessary for them to maintain the required proficiency in both. Contrary to the Agency's contention, union proposal 2 does not interfere with management's right to assign employees or work under section 7106(a)(2)(A) and (B) of the Statute. In this regard, the Union points out that its proposal has a twofold purpose. First, the Union states that its intent in making the proposal: was not to shield employees from a particular assignment or to require that all duties currently in their position description be assigned. Rather, as a consequence of this proposal, if the agency decides to assign particular duties to employees, it simply would need to change the position descriptions accordingly. /2/ Second, the Union asserts that the proposal neither requires management to assign any particular duties nor to establish any specified level of proficiency as a performance standard. Rather, the proposal would require only that "the employee would be allowed to assert in a grievance concerning the application of a required proficiency standard previously set by management that the standard as applied was unfair given its impossibility of performance in the employee's particular situation where management has not provided enough opportunity to maintain this required proficiency." /3/ These statements of intent by the Union are consistent with the plain language of proposal 2 and are accordingly adopted for purposes of this Decision. Thus, the first aspect of union proposal 2 is materially to the same effect as Union Proposal II, designed to insure the accuracy of employee position descriptions, which the Authority found to be negotiable 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 as to other matters sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). The second aspect of the proposal, concerning employee proficiency, is to the same effect as Union Proposal 5 in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980) which the Authority found to be negotiable because it established a general, nonquantitative requirement by which management's application of its critical elements and performance standards could subsequently be evaluated in a grievance proceeding brought by an adversely affected employee. Hence, for the reasons stated in the two cited cases, union proposal 2 in its entirety is within the duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review relating to Union Proposal 1 be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 2. /4/ Issued, Washington, D.C., September 19, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Agency Statement of Position at 4. /2/ Union Reply Brief at 8. /3/ Id. at 9. /4/ In deciding that union proposal 2 is within the duty to bargain, the Authority makes no judgment as to its merits.