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28 FLRA NO. 136

NATIONAL TREASURY
EMPLOYEES UNION

                   Union

      and

DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE

                   Agency

Case No. 0-NG-1378

DECISION AND ORDER ON NEGOTIABILITY ISSUES

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 two proposals.

II. Procedural Issues

The Agency requests a stay of proceedings in connection with Proposal 1, pending the outcome of a similar case now before the U.S. Court of Appeals for the D.C. Circuit. In our view, the Agency's request provides no basis for staying the processing of Proposal I in this case, and the request is denied. Further, the Agency requests that the Union provide a more definite statement of the intended meaning of Proposal 2 or, in the alternative, that the petition concerning this proposal be dismissed because its language is different from what was initially submitted. We find that the Agency was not prejudiced by the Union's misstatement in its Petition for Review of the text of Proposal 2. Rather, the record indicates that the Agency clearly understood the intent of the proposal and fully stated its position with respect to the negotiability of the proposal. Consequently, the Agency's requests are denied. 

III. Proposal 1

IRS has determined that it is in the best interest of the Service to give travel and per diem to all union officials traveling for any purpose for which official time is allowed. A. Positions of the Parties

The Agency contends that Proposal 1 is nonnegotiable because it is: (1) inconsistent with the Travel Expense Act, 5 U.S.C. 5701-5709; (2) inconsistent with the Federal Travel Regulations (FTRs), a Government-wide regulation; (3) not a matter affecting conditions of employment; and (4) inconsistent with management's right to determine its mission and budget under section 7106(a)(1) of the Statute. The Union disputes the Agency's contentions.

B. Analysis and Conclusions

Proposal 1 would require the Agency to pay travel and per diem to all union officials for any purpose for which official time is allowed. In other cases, the Authority has rejected arguments similar to those raised by the Agency in this case and has determined that proposals which require the payment of travel and per diem for union officials on official time are within the duty to bargain. See, for example, National Treasury Employees Union and department of the Treasury, Internal Revenue Service, 21 FLRA No. 126 (1986), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 86-1373 (D.C. Cir. June 25, 1986) and National Federation of Federal Employees and U.S. Department of the Interior U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA No. 127 (1986) (Provision 3).

With respect to its contention that the proposal interferes with management's right to determine its budget, the Agency argues that the effect of Proposal 1 is to require management to establish a particular budgetary line item for the implementation of the proposal. The Agency claims, therefore, that under the test as set forth in American Federation of Government Employees and Air Force Logistics Command, Wright - Patterson Air Force Base. Ohio, 2 FLRA 604 (1980), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), the proposal is nonnegotiable. We disagree. 

The Agency provides no support for its claim that implementation of the proposal requires the establishment of a separate line item in its budget. In particular, the Agency has not shown that travel and per diem expenses for Union officials on official time cannot be paid out of its regular travel appropriation, where those payments are authorized in accordance with law and regulation. See National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for review filed sub nom. Department of the Treasury v. FLRA, No. 86-1198 (D.C. Cir. Mar. 27, 1986). We find, therefore, that Proposal 1 does not directly interfere with the Agency's right to determine its budget. We note that the Agency does not make any argument that the anticipated increase in costs due to the proposal is significant and unavoidable and is not offset by compensating benefits.

Consequently, for the reasons and cases cited in Internal Revenue Service and in U.S. Geological Survey, we find that Proposal 1 is within the duty to bargain.

IV. Proposal 2

If these periods of temporary assignment are so long that an annual performance appraisal cannot be prepared based on performance in the position to which the employee is regularly assigned, then the employee will have the option of having his/her last annual appraisal revalidated or delaying any new annual appraisal until a sufficient time is served in the regularly assigned position.

A. Positions of the Parties

The Agency contends that Proposal 2 is nonnegotiable because it is inconsistent with Government-wide regulations, 5 C.F.R. 430.205(b) and 206(e), which require that (1) an employee occupy a position for at least 90 days before that employee is eligible for an annual performance appraisal and that (2) the appraisal period shall be extended in those circumstances in which an employee has not performed in his or her regularly assigned position for the minimum appraisal period. The Union disputes the Agency's contentions and argues that the proposal is negotiable as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.  

B. Analysis and Conclusions

Proposal 2 concerns the preparation of a performance appraisal where the Agency is unable to rate an employee because the length of time the employee has spent on a detail during the appraisal period does not permit the Agency to make an annual appraisal based on the employee's performance in his or her regularly assigned position. The proposal would require the Agency to give employees the option of (1) having their last annual appraisal reused, or (2) delaying any new annual performance appraisal until they have served enough time in their regularly assigned positions.

Under applicable regulations, an agency must establish a minimum appraisal period of at least 90 days and not more than 120 days. 5 C.F.R. 430.205(b) (1987). We interpret Proposal 2 as applying to circumstances in which, under applicable regulations, management would be unable to evaluate employees for their annual rating because those employees have not been in their regularly assigned position for the minimum appraisal period and have not been in the position to which they were detailed for a sufficient period to permit an evaluation of their performance in that position as well. See 5 C.F.R. 430.205(d). In that situation, as the Agency contends, management has no option. Under applicable regulations, it must extend the appraisal period until the employee has worked in a position for the minimum amount of time necessary to meet the minimum appraisal period requirement. 5 C.F.R. 430.206(e). Consequently, by providing employees the option either to reuse an old performance appraisal or to delay the issuance of a new appraisal, Proposal 2 is inconsistent with 5 C.F.R. 430.206(e), a Government-wide regulation, and is outside the Agency's duty to bargain under section 7117(a) (1) of the Statute. See American Federation of Government Employees, AFL - CIO, Local 1940 and Department of Agriculture, Plum Island Disease Center, 16 FLRA 816, 824-25 (1984) (Proposal 5) (OPM regulations published at title 5 of the Code of Federal Regulations constitute Government-wide regulations within the meaning of section 7117 (a) of the Statute).

Because we find that Proposal 2 is inconsistent with a Government-wide regulation, we do not need to reach the question of whether it is an appropriate arrangement under section 7106 (b) (3) . See National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, Corps of Engineers, 21 FLRA No. 31 (1986). 

V. Order

The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning Proposal 1. 1 The petition for review as to Proposal 2 is dismissed.

Issued, Washington, D.C., September 21, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

FOOTNOTES

Footnote 1 In deciding that Proposal I is within the duty to bargain, we make no judgment as to its merits.

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