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17:0379(60)NG
The decision of the Authority follows:
17 FLRA No. 60
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
INTERNAL REVENUE SERVICE
Agency
Case No. 0-NG-810
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 presents issues
concerning the negotiability of two Union proposals. Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
The selection of employees to perform office audits shall be
made in accordance with Principles B and C of the National
Redeployment Guidelines. /1/ (Footnote added.)
The record indicates that these proposals were prompted by the
Agency's announced plan to have employees of the Employee Plans (EP)
Division conduct some employee benefit plans audits, formerly undertaken
at the taxpayer's place of business, as office audits at Agency district
offices. According to the Agency, "A determination by management to
assign office audit work to certain EP employees who usually perform
field examinations will result in those employees spending slightly more
time at their assigned offices than they have spent there in the past."
/2/ The Agency further states: "The performance of both the field and
office audits referred to herein comes within the position description
of the employees at issue." /3/ With specific reference to Union
Proposal 1, the Agency maintains that application of the proposed
procedures would not take into consideration the unavailability of an
employee because of involvement "in a long-term and complex field audit"
and would not include as a factor in the selection process "the
availability of employees based on current workload priorities and
assignments . . . ." /4/
Concerning the management right to assign work pursuant to section
7106(a)(2)(B) of the Statute, the Authority noted, in connection with
Union Proposal 13, in American Federation of Government Employees,
AFL-CIO, National Immigration and Naturalization Service Council and
U.S. Department of Justice, Immigration and Naturalization Service, 8
FLRA 347, 377 (1982), rev'd as to other matters sub nom. U.S. Department
of Justice v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), that " . . . the
right to assign work includes discretion to determine the particular
employee to whom the work will be assigned and to determine when the
work which has been assigned will be performed." While the Agency's
position that Union Proposal 1 would interfere with its discretion in
deciding who will undertake the office audits is unpersuasive, /5/ the
Authority does agree with the Agency's assertion that the proposal would
interfere with the right to determine when assigned work will be
performed. That is, by prescribing the selection of employees to
perform office audits without taking into consideration those employees'
availability to perform such work, Union Proposal 1 would force
management into one of two choices where the employees identified by
application of the proposed procedures are engaged in ongoing or
priority field audits. The Agency would either have to relieve the
identified employees of their continuing assignments or delay the start
of the office audits pending completion of the field assignments. Thus,
the proposal, in certain circumstances, would affect management's
discretion regarding the timing of the assignment of work to employees,
and is, for the reasons set forth concerning Union Proposal 13 in
Immigration and Naturalization Service, outside the Agency's obligation
to bargain.
Union Proposal 2
Where the NTEU Chapter President or Steward is assigned to
EP/EO field work, he/she shall be given the opportunity to work
office/correspondence examinations before volunteers are
solicited, absent just cause.
Union Proposal 2 differs from Union Proposal 1 in that, as the Union
points out, the "just cause" provision encompasses circumstances where
the Union officials "due to their present work assignments, cannot be
called back to the office without causing a severe interruption of the
(Agency's) workload." /6/ However, Union Proposal 2 is to the same
effect as Union Proposal 7 in American Federation of Government
Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals
Service, District of Columbia, 9 FLRA 1004 (1982), which similarly
sought preferential treatment in the assignment of work to union
officials. Noting that the right, pursuant to section 7106(a)(2)(B),
includes authority "to assign work to all employees, regardless of
whether they are Union officials and regardless of whether they
consent," the Authority found the cited proposal to be nonnegotiable.
Therefore, based on U.S. Marshals Service, the reasons and cases cited
therein, Union Proposal 2 is not within the duty to bargain. /7/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review be, and it
hereby is, dismissed. Issued, Washington, D.C., April 4, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The cited principles of the Guidelines provide as follows:
B. Placement of affected volunteers into continuing positions
by reassignments or voluntary downgrades shall be made in
accordance with the competitive procedures of Article 7 of the
Master Agreement.
C. When involuntary reassignments must be made, inverse IRS
seniority of employees will play the primary role in determining
which affected employees are placed in continuing positions.
/2/ Agency Statement of Position at 1-2.
/3/ Id. at n. 4.
/4/ Id. at 9 and 11.
/5/ See American Federation of Government Employees, Council of
Social Security District Office Locals and Department of Health and
Human Services, Social Security Administration, 15 FLRA No. 114 (1984),
wherein the Authority held that a proposal, setting forth a procedure to
be used by management in choosing among employees already deemed by
management to be qualified for an assignment, was negotiable.
/6/ Union Petition for Review at 2.
/7/ See also 5 U.S.C. 7116(a)(2).