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U.S. Federal Labor Relations Authority

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14:0766(102)CA - IRS and Brookhaven Service Center and NTEU and NTEU Chapter 99 -- 1984 FLRAdec CA

[ v14 p766 ]
The decision of the Authority follows:

 14 FLRA No. 102
 Charging Party
                                            Case No. 2-CA-808
                            DECISION AND ORDER
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
    Upon consideration of the entire record in this case, including the
 parties' stipulation of facts, accompanying exhibits and contentions of
 the parties, the Authority finds:
    The complaint alleges that the Respondent, Internal Revenue Service
 and Brookhaven Service Center, violated section 7116(a)(1) and (5) of
 the Federal Service Labor-Management Relations Statute (the Statute) /1/
 by failing and refusing to bargain with the National Treasury Employees
 Union and NTEU, Chapter 99 (the Union) concerning certain changes in
 conditions of employment and by unilaterally implementing such changes.
    The Respondent notified the Union of its proposed changes in
 performance expectations for data transcribers in the Data Conversion
 Branch.  Subsequently, the Union proffered proposals on the changes for
 bargaining.  The parties bargained and were able to reach agreement on
 certain matters.  The Respondent refused to bargain concerning one of
 the Union's proposals, asserting that the proposal was outside the duty
 to bargain.  Respondent implemented the changes approximately two weeks
 later while refusing to bargain on the disputed proposal.
    The sole issue in this case is whether the Respondent properly
 refused to bargain concerning the proposal on the basis that it was
 outside the duty to bargain.  In this regard, the changes proposed by
 the Respondent pertained to "performance expectations" for data
 transcribers, who were employed by the Respondent in measured, data
 processing work on a seasonal basis.  The Respondent had developed
 measures of average performance for the transcribers by the type of
 their work and their grade levels, which included estimates of quantity
 of output and error rates.  It planned to expect performance rates from
 individual transcribers from the beginning of their seasonal employment
 as follows:  after the first week of employment a transcriber would be
 expected to perform at 80 percent of the average;  after the second week
 the expectation level would be 90 percent of the average;  and after the
 third week a transcriber would be expected to reach 100 percent of the
 average.  A transcriber who did not reach these levels in the allotted
 time would risk not being retained.  Success would improve a
 transcriber's opportunity for promotion.
    The Union's proposal would have changed the time frames for these
 expectations, as follows:  eighty (80) percent of average performance
 would be expected after 16 weeks;  ninety (90) percent would be expected
 after 20 weeks;  and one hundred (100) percent would be expected after
 24 weeks.  The Respondent contends that the practical effect of the
 proposal is to set the quantity and quality of output it can expect from
 its employees and that, as such, the proposal conflicts with its rights
 "to direct" and "assign work" to employees under section 7106(a)(2)(A)
 and (B) of the Statute.  /2/ The Authority agrees.
    By setting performance levels for employees which differ from the
 levels that the Respondent planned to implement, the disputed proposal
 has the same effect as the proposal held to conflict with the rights "to
 direct" employees and "assign work" to employees under section
 7106(a)(2)(A) and (B) of the Statute in National Treasury Employees
 Union and NTEU, Chapter 27 and Internal Revenue Service, Austin Service
 Center, 11 FLRA No. 58 (1983), citing National Treasury Employees Union
 and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769
 (1980), affirmed sub nom. National Treasury Employees Union v. Federal
 Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982).  See also
 American Federation of Government Employees, AFL-CIO, Local 1923 and
 Department of Health and Human Services, Social Security Administration,
 12 FLRA No. 6 (1983), wherein the Authority held that proposals which
 would require negotiation on the quantity and timeliness of employees'
 work product conflicted with section 7106(a)(2)(A) and (B) of the
 Statute.  Based on Austin Service Center, Bureau of the Public Debt, and
 Department of Health and Human Services, supra, and for the reasons
 stated therein, the disputed proposal in the instant case is outside the
 duty to bargain.  Accordingly, it cannot be concluded that the
 Respondent violated section 7116(a)(1) and (5) by failing and refusing
 to negotiate concerning the Union's proposal and by implementing the
    IT IS ORDERED that the complaint in Case No. 2-CA-808 be, and it
 hereby is, dismissed.  
 Issued, Washington, D.C., May 30, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ Section 7116(a)(1) and (5) of the Statute provides:
          Sec. 7116.  Unfair labor practices
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
                                .  .  .  .
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter(.)
    /2/ Section 7106(a)(2)(A) and (B) 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--
                                .  .  .  .
          (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(.)