13:0048(9)NG - NTEU and IRS, Dallas District -- 1983 FLRAdec NG

 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.