[ v19 p647 ]
19:0647(82)NG
The decision of the Authority follows:
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.