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23:0273(36)NG - NTEU and Treasury, IRS -- 1986 FLRAdec NG

[ v23 p273 ]
The decision of the Authority follows:

 23 FLRA No. 36
                                            Case No. 0-NG-1228
                         I.  Statement of the Case
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of the underscored sentence of a single provision
 disapproved upon review by the Agency head under section 7114(c).
                              II.  Provision
          5.  Upon returning to duties once performed, employees
       participating in a rotation policy may request refresher training.
        Employees will also receive a reasonable amount of administrative
       time to become familiar with all relevant IRM changes, management
       memorandum, etc., that have been issued while performing other
       duties.  /1/
                      III.  Positions of the Parties
    The Agency concedes that employees are required as a part of thier
 jobs to familiarize themselves with the kinds of Agency directives,
 regulations and memoranda referred to in the provision.  Agency
 Statement of Position at 3.  The Agency argues nevertheless that the
 provision would violate management's right to assign work because it
 would require management to give employees time to review such materials
 without regard to whether there are other work assignments which
 management has determined should take priority.
    The Union contends that the provision does not interfere with
 management's right to assign work.  The Union also argues that the
 provision is an appropriate arrangement under section 7106(b)(3)
 because, even if it does interfere with management's rights, that
 interference is not excessive.
                       IV.  Analysis and Conclusion
         A.  Whether the Provision violates Management's Right to
                Assign Work
    The provision would require management to give employees who are
 returning to their regular jobs after a detail a reasonable amount of
 time to become familiar with job-related materials issued while they
 were on detail.  The provision would thus require management to give
 priority to this aspect of employees' jobs over other assigned duties.
 In establishing such a priority among work assignments the provision has
 the same effect as the first paragraph of Union Proposal I in American
 Federation of Government Employees, AFL-CIO, International Council of
 U.S. Marshals Service Locals and Department of Justice, U.S. Marshals
 Service, 4 FLRA 384, 385-86 (1980).  Like that proposal, the provision
 here requires management to assign one type of work to employees to the
 exclusion of other duties which management may determine have a higher
 priority.  For the reasons stated in U.S. Marshals Service, we find that
 the provision directly interferes with management's right to assign work
 under section 7106(a)(2)(B) of the Statute.  In reaching this
 conclusion, we find, contrary to the Union's claim (Union Response to
 Agency Statement of Position at 7), that neither the language of the
 provision itself, nor of the agreement of which it is a part (Attachment
 1 to Union Petition for Review), contains an "opt out" clause which
 permits management to deny employee requests for a reasonable amount of
 time where there is "just cause".
           B.  Whether the Provision Constitutes an "Appropriate
                Arrangement" under Section 7106(b)(3)
    Even though we have found that the provision interferes with
 management's rights, we need not conclude that it is nonnegotiable if we
 also find that it is an "appropriate arrangement for employees adversely
 affected" by the exercise of management's rights.  For the following
 reasons we find, in agreement with the Union, that the provision is
 within the duty to bargain because it does not excessively interfere
 with management's rights.  See National Association of Government
 Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4
    The proposal is clearly intended to be an "arrangement" for employees
 adversely affected by the exercise of management's right to assign
 employees under section 7106(a)(2)(A).  As the Agency acknowledges,
 employees are required to be familiar with all job-related directives,
 regulations, and memoranda.  When employees are assigned away from their
 regular positions to entirely different jobs, they are not able -- nor
 do they need -- to study those materials.  Upon return to their regular
 positions, employees will be handicapped in the performance of their
 duties if they are unfamiliar with instructions issued during their
 absence.  The provision attempts to mitigate against that consequence by
 providing employees a "reasonable" amount of time to become acquainted
 with such job-related material.
    The remaining issue is whether the burden placed on management's
 right to assign work by requiring that employees be permitted a
 reasonable amount of time, at the possible expense of other duties, is
 excessive compared to the benefit to employees in having such time.  We
 conclude that the benefits of the provision to employees -- and to
 management -- outweigh its effect on management's right to determine
 work priorities.
    As we have said elsewhere, management's right to assign work is
 reserved in the Statute in order to protect, among other things,
 management's ability to manage its workload.  American Federation of
 Government Employees, Local 32, AFL-CIO and Office of Personnel
 Management, 22 FLRA No. 29 (1986).  The impact of the disputed provision
 on this management interest is insignificant.  The provision provides
 for the assignment of tasks which are already a part of an employee's
 job responsibilities.  It does not, therefore, require management to
 sacrifice employee worktime to activities or purposes which are
 unrelated to the accomplishment of the Agency's workload.  Moreover, the
 provision does not prevent management from requiring employees to
 perform any part of their jobs.  It would simply require management to
 afford employees time to prepare to do those tasks which involve
 job-related materials issued in their absence.  At most it would merely
 delay the start of work by employees on those other tasks.  And since
 the provision does not require management to grant employees an
 unlimited amount of time, but only so much as is reasonably necessary to
 become familiar with relevant materials -- a matter regarding which
 management thus retains some discretion -- any such delay would not be
 unduly burdensome on management's ability to accomplish its work.
    If employees did not have the time permitted by the provision, they
 would face the difficult task of performing the duties of their
 positions without having reviewed all the information necessary to
 perform those duties in accordance with current requirements.  A
 reasonably foreseeable consequence of this situation is that employees
 will not perform as well as might otherwise be expected:  they will not
 complete work as quickly or they will make more mistakes, for example --
 all of which would detrimentally affect their performance evaluations,
 particularly in comparison with those employees who had not been
 detailed.  This situation is not one for which employees are
 responsible, since the decision to detail is solely a matter of
 management discretion.
    Employees' job performance would likely be enhanced if time was
 provided to become familiar with the current requirements of their jobs
 upon return from a detail.  Management's interest in getting the best
 quality work product as quickly as possible would be enhanced also.  In
 this manner, the provision would contribute to, rather than detract
 from, the achievement of a more effective and efficient workforce.
    Taking all of these factors into account, we find that the burden
 imposed by the provision on management's right to assign work is
 insubstantial compared to the benefit to employees -- and, derivatively,
 to management -- afforded by the provision.  We conclude, therefore,
 that the provision does not excessively interfere with management's
 right to assign work and is a negotiable "appropriate arrangement" under
 section 7106(b)(3) of the Statute.  See also American Federation of
 Government Employees, Local 3231 and Social Security Administration, 22
 FLRA No.92 (1986) (Union Proposal 3).
                                 V.  Order
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall rescind its disapproval
 of the disputed provisions.  /2/
    Issued, Washington, D.C., August 19, 1986.
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) In its Statement of Position the Agency indicated that this is
 the express language of the proposal.  The Union in its initial
 submission apparently had used the phrase "official time" instead of
 "administrative time." The Union's Response to the Agency's Statement of
 Position did not challenge the Agency's presentation of the proposal and
 thus the Authority has considered the proposal as stated above.
    (2) In finding that the provision is within the duty to bargain, the
 Authority makes no judgment as to the merits of the provision.