19:0647(82)NG - NTEU and NTEU Chapter 91 and Treasury, IRS Southwest Region -- 1985 FLRAdec NG

 19 FLRA No. 82
 
 NATIONAL TREASURY EMPLOYEES
 UNION AND NTEU CHAPTER 91
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE,
 SOUTHWEST REGION
 Agency
 
                                            Case No. O-NG-632
 
                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
 concerning the negotiability of two Union proposals.  /1/
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 /2/ The dispute herein arose in the context of negotiations being
 conducted as a result of a bargaining order issued by the Authority.
 The Authority found that the Agency had engaged in an unfair labor
 practice by changing the system of evaluating the work performance of
 certain employees without affording the Union the opportunity to
 negotiate over procedures to be used in implementing the changes and on
 the impact of the changes on adversely affected employees.  Department
 of the Treasury, Internal Revenue Service (IRS), Southwest Region, 1
 FLRA 612 (1979).
 
                             Union Proposal 1
 
          Where a Form 211 is not generated, it is inferred that
       performance on the particular work unit was not reviewed or that
       performance was not commendatory or critical conclusions reached.
 
    The record indicates that actions relating to supervisory monitoring
 and review of "work units" are required under specified circumstances
 and/or at certain stages of the processing of cases within the Appellate
 Offices of the Agency.  The Form 211 or "Appellate Review Memorandum" is
 an Agency form utilized in the monitoring and review function.  The Form
 211 provides for information identifying the case, giving the chronology
 of certain actions taken in the processing of the case, and indicating
 the scope and nature of the review.  The Form also allows space for
 comments.
 
    The proposal, by its plain terms, would require that the Form 211 be
 used when it is concluded that performance was commendatory or warranted
 criticism.  The proposal would attach to the absence of a Form 211 the
 meaning that either the particular work unit was not reviewed or that
 the performance thereon warranted neither commendation nor criticism
 regardless of whether such was, in fact, true.  Thus, the agency's
 ability to make critical or commendatory evaluations of performance on a
 work unit would be restricted where no comments reflecting such
 conclusions had been incorporated on a Form 211.  This, in the
 Authority's view, directly interferes with the Agency's right to
 evaluate employee performance and, hence, its rights pursuant to section
 7106(a)(2)(A) and (B) to direct employees and to assign work.  See
 National Treasury Employees Union and Internal Revenue Service, 6 FLRA
 522 (1981) (Union Proposal VII) (wherein the Authority noted that the
 rights to direct employees and to assign work would be virtually
 meaningless if it did not encompass the ability of the agency to
 evaluate employee performance of assigned duties).  Inasmuch as the
 proposal would effectively place a substantive restriction on the
 Agency's ability to evaluate employee performance it is not merely
 procedural in nature.  /3/ Thus, contrary to the Union's assertion, the
 proposal is not a negotiable procedure under section 7106(b)(2) of the
 Statute.  /4/ Lastly, the Union's assertion that Union Proposal 1 is
 negotiable under section 7106(b)(3) of the Statute must be rejected.  In
 this regard, the Union has not shown, nor is it otherwise apparent, how
 the proposal concerning use of an appraisal form constitutes an
 "appropriate arrangement" within the meaning of that section.  /5/ Thus,
 there is no basis for finding Union Proposal 1 negotiable under that
 section of the Statute.
 
    Based on the foregoing the Authority finds that Union Proposal 1 is
 not within the duty to bargain.  /6/
 
                             Union Proposal 2
 
          A.O.'s (Appeals Officers) experiencing personnel actions
       (including applications for promotions) during the period June 3,
       1977, to present may at their option elect to have the action
       cancelled (if it was adverse to them such as a removal,
       disciplinary action, a reprimand, the denial of a within grade,
       etc.) or reconstructed (if it was a promotion action) as
       applicable.  A.O.'s will have 30 calendar days from the effective
       date of this agreement to register their election with their
       supervisor.
 
    By its plain terms, Union Proposal 2 would allow employees at their
 option to have certain personnel actions which were adverse to them
 cancelled.  By providing that personnel actions which had previously
 been effected against employees be cancelled purely at the request of
 the employee, Union Proposal 2 conflicts with the Agency's authority
 under section 7106(a)(2) to take various actions, e.g., to suspend, to
 remove or to take other disciplinary action against employees.  In this
 regard, by allowing employees the option of having personnel actions,
 which were implemented in accordance with applicable laws, cancelled,
 the proposal effectively negates the Agency's authority with respect to
 the exercise of substantive management rights.  That the proposal would
 permit the Agency to attempt to rerun the personnel action after it has
 been cancelled, as the Union asserts, does not alter the fact that the
 proposal directly interferes with the exercise of a reserved substantive
 right.  The possible ability of the Agency to reconstitute an action
 does not change the fact of the negation of the original action and,
 thus, the proposal's direct substantive repercussions.  /7/ Based on
 these reasons, the Authority finds that Union Proposal 2 is not within
 the duty to bargain.  /8/ Cf. International Organization of Masters,
 Mates and Pilots and Panama Canal Commission, 11 FLRA 115 (1983) (Union
 Provisions 4 and 6) (wherein the Authority found that because the
 provisions would have limited the agency's ability to assign work to
 employees who had volunteered for such duty interfered with the agency's
 right to assign work under section7106(a)(2)(B)).
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  
 
 Issued, Washington, D.C., August 12, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The petition as originally filed requested review as to 6 Union
 proposals.  Subsequently, the Union withdrew its request as to 4 of its
 proposals.  Therefore, those proposals will not be considered further
 herein.
 
 
    /2/ The Agency's motion to dismiss the petition for review with
 respect to Union Proposal 1 on the basis that the Union failed to comply
 with the requirement in section 2424.4(a)(2) of the Authority's Rules
 and Regulations that the petition for review include a statement of the
 meaning attributed to the proposal is denied.  The Union did, upon
 request of the Authority, file such a statement asserting that the
 proposal represented written confirmation of statements made at the
 bargaining table by one of the Agency's representatives.  Inasmuch as
 the Authority's disposition of that proposal is based on the plain terms
 of the proposal, it does not appear that the Agency's position was
 prejudiced by the manner of the Union's compliance.
 
 
    /3/ See American Federation of Government Employees, AFL-CIO and Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
 603 (1980), enforced sub nom. Department of Defense v. Federal Labor
 Relations Authority, 659 F.2d 1140, 1152 (D.C. Cir. 1981), cert. denied
 sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982).
 
 
    /4/ Section 7106(b) of the Statute provides, in relevant part:
 
          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;  or
 
          (3) appropriate arrangements for employees adversely affected
       by the exercise of any authority under this section by such
       management officials.
 
 
    /5/ Id.
 
 
    /6/ In view of this disposition it is unnecessary to address the
 Agency's other contentions as to the negotiability of this proposal.
 
 
    /7/ The Authority notes that the Agency asserts that in some
 instances, because of passage of time, it would lack the records
 necessary to rerun a particular action.  Thus, in addition to negating
 the Agency's original exercise of reserved authority, the proposal could
 effectively present the Agency from ever being able to take a particular
 action.  See National Federation of Federal Employees, Local 615 and
 National Park Service, Sequoia and Kings Canyon National Parks, U.S.
 Department of Interior, 17 FLRA No. 45 (1985) (Union Proposal 2).
 
 
    /8/ In view of this disposition, it is unnecessary to address the
 other contentions of the Agency as to the negotiability of the proposal.