[ v22 p314 ]
22:0314(30)NG
The decision of the Authority follows:
22 FLRA No. 30
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 26
Union
and
INTERNAL REVENUE SERVICE,
ATLANTA DISTRICT
Agency
Case No. 0-NG-237
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 five Union proposals /1/ dealing with impact and
implementation bargaining on changes in working conditions of certain
unit employees caused by the institution of a temporary program in one
of the Agency's divisions.
II. Preliminary Issues
A. Motion to Dismiss
The Agency filed a motion to dismiss the petition for review in this
case. The Agency based its motion on the grounds that the petition was
untimely filed and did not contain necessary attachments. However, the
record establishes that the petition for review was filed within the
time limits required under sections 2424.3, 2429.21, and 2429.22 of the
Authority's Rules and Regulations. Moreover, the Union submitted the
necessary attachments within the time limits normally afforded parties
by the Authority to correct procedural deficiencies. Accordingly, the
Agency's motion to dismiss must be denied.
B. More Than "De Minimis" Impact
The Agency contends that it is under no obligation to negotiate any
of the Union's proposals because the temporary program it instituted
caused no significant changes in the working conditions of affected
employees. For the following reason the Authority disagrees.
In conjunction with the petition for review of the negotiability of
its proposals, the Union also filed an unfair labor practice charge
against the Agency. The charge alleged a failure to give the Union
adequate prior notice of the implementation of its program and a refusal
to bargain at the Union's request concerning procedures to be utilized
in implementing the change and appropriate arrangements for the affected
employees. The Union elected to have the unfair labor practice charge
resolved prior to any determination being made on the negotiability
issues. As a result, in Internal Revenue Service, 16 FLRA 845 (1984),
the Authority adopted an Administrative Law Judge's finding that the
Agency violated section 7116(a)(1) and (5) of the Statute, as alleged by
the Union. The Authority found that the impact of the Agency's program
on unit employees was more than de minimis. Therefore, in terms of this
case, the Authority concludes that the Agency's contention that its
program caused no significant impact in the working conditions of
affected employees is without merit, and must be denied.
III. Union Proposal 1
Management agrees that in grading cases it will follow IRM MT
7500-23 (1-12-79)
A. Positions of the Parties
IRM MT 7500-23 refers to Internal Revenue Manual, Manual Transmittal
7500-23, a document used by the Agency for the purpose of assigning work
to its employees. The Agency contends that the proposal would affect
its determinations as to the content of the work performed by employees
and, therefore, interferes with the Agency's right to determine its
organization under section 7106(a)(1) and its right to assign work under
section 7106(a)(2)(B) of the Statute. The Agency also contends that the
document referred to in the proposal is an internal guide to managers
never intended to be mandatory and that it already uses the guidelines
whenever possible, so that bargaining over the proposal would serve no
useful purpose.
The Union contends that the document referred to in the proposal is
binding on management officials. The proposal would merely insure that
whatever work is assigned is properly graded and that where an employee
believes work is misgraded, a contractual remedy would exist. The Union
further states in its petition for review that all of its proposals,
including Union Proposal 1, "fall within the ambit" of section
7106(b)(2) and section 7106(b)(3) of the Statute.
B. Analysis
In previous decisions, the Authority has indicated that an agency's
right to determine its organization refers primarily to its right to
determine the internal structure of the organization. See, for example,
American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, 17 FLRA 790 (1985). The proposal in
this case would not require the Agency to modify its internal structure,
and, therefore, does not interfere with the Agency's right to determine
its organization under section 7106(a)(1).
As to the Agency's argument concerning assignment of work, the
document referred to in the proposal contains criteria used by
management officials in grading the level of difficulty of the work to
be performed by their employees. Presumably, by correlating the level
of difficulty with a specific GS level, the more difficult the work, the
higher the GS level of the employee assigned to perform the work. The
proposal would require management to assign work to its employees
strictly on the basis of the criteria specified in the document and
would prevent management from deviating from those criteria. In
National Treasury Employees Union and Department of the Treasury, Bureau
of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. NTEU v. FLRA,
691 F.2d 553 (D.C. Cir. (1982), the Authority established that the right
to assign work under section 7106(a)(2)(B) includes the discretion to
determine "the particular employees to whom or positions to which (work)
will be assigned." Since the proposal would make it impossible for the
Agency to deviate from the criteria established in the document in
assigning particular employees to perform work, the proposal directly
interferes with management's right to assign work and does not
constitute a procedure under section 7106(b)(2) of the Statute.
Subsequent to the filings in this case, the Authority issued National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA No. 4 (1986). There the Authority stated that
henceforth we will determine whether a proposal constitutes a negotiable
"appropriate arrangement" under section 7106(b)(3) of the Statute by
determining whether the proposal "excessively interferes" with the
exercise of management's rights. In making such a determination, the
Authority will first examine the record in each case to ascertain as a
threshold question whether a proposal is in fact intended to be an
arrangement for employees adversely affected by management's exercise of
it rights. If the Authority concludes that a proposal is in fact
intended as an arrangement, we will then determine whether the
arrangement is appropriate or whether it is inappropriate because it
excessively interferes.
The record fails to clearly indicate how this proposal is intended to
operate as an appropriate arrangement. However, it would seem, and we
assume for purposes of this decision, that the Union intends the
proposal to be an arrangement for employees adversely affected by
management's right to assign work under section 7106(a)(2)(B) of the
Statute. That is, the proposal would be intended to ameliorate the
adverse affects on employees as a result of management's right to assign
work by binding management to the criteria for grading and assigning
work in the document as a matter of contract. However, the Authority
finds that the proposed amelioration could totally preclude the Agency
from exercising its right to assign work to a particular employee if
such assignment were not strictly in accordance with the criteria.
Through the arbitration process management's decision to assign work to
a particular employee could be completely negated. Such a proposed
amelioration which totally abrogates the exercise of a management right
clearly does not constitute an appropriate arrangement within the
meaning of section 7106(b)(3). See American Federation of Government
Employees, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983),
reversing and remanding American Federation of Government Employees,
AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census,
Washington, D.C., 7 FLRA 91 (1981).
C. Conclusion
The Authority concludes, therefore, based on the reasons and cases
cited above, that Union Proposal 1 does not interfere with management's
right to determine its organization, under section 7106(a)(1). The
proposal does directly interfere with management's right to assign work,
under section 7106(a)(2)(B) of the Statute and does not constitute a
procedure within the meaning of section 7106(b)(2). In addition, the
proposal does not constitute an appropriate arrangement for employees
adversely affected by management's right to assign work under section
7106(b)(3) of the Statute, because it excessively interferes with that
right. Accordingly, the proposal is outside the duty to bargain. /2/
IV. Union Proposal 2
The Agency agrees to request from GSA, a sufficient number of
government cars for qualified EP employees who are involved in the
TCMP program and request it.
A. Positions of the Parties
TCMP refers to the Agency's Taxpayer Compliance Measurement Program,
the Agency's temporary program in this case. EP refers to the Agency's
Exempt Plan agents, the particular employees affected by the Agency's
temporary program. The Agency contends that the proposal involves a
subject which is negotiable only at its election, under section
7106(b)(1) of the Statute, and it elects not to negotiate the matter.
The Union, on the other hand, argues that the Agency has already
determined the technology, methods and means by which the work is to be
performed. The proposal, therefore, properly concerns the impact and
implementation of management's prior decision upon the conditions of
employment of unit employees and is negotiable.
B. Analysis
The proposal would require the Agency to request cars from GSA for
the purpose of providing those cars to employees involved in the
Agency's temporary TCMP. Based on the record in this case it is clear
that travel is a necessary aspect of the Agency's temporary program.
The Authority has previously determined that the choice of the mode of
transportation to be used for accomplishing an agency's mission is a
decision as to the "means" to be used for its accomplishment, that is,
the instrumentalities or agents, tools, or devices used to accomplish
the agency's work. American Federation of Government Employees,
AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison
Region, 21 FLRA No. 104 (1986) (Union Proposal 10). In requiring
management to negotiate on this proposal, therefore, the Union is
requiring management to bargain over a particular "means" of performing
the work assignments associated with its temporary program. See also
National Treasury Employees Union and U.S. Customs Service, Region VIII,
San Francisco, California, 2 FLRA 254 (1979).
The Union has indicated that its proposal concerns the impact and
implementation of the Agency's prior decision to use cars for the
performance of work associated with its temporary program. The proposal
therefore concerns how the cars shall be provided. The record fails to
clearly indicate how this proposal is intended to operate as a
procedure, under section 7106(b)(2), or as an appropriate arrangement,
under section 7106(b)(3) of the Statute. In any event, having
determined that the proposal directly interferes with management's
substantive rights under section 7106(b)(1), we find further that it
cannot constitute a negotiable procedure. Moreover, assuming the
proposal is intended as an appropriate arrangement for employees
adversely affected by the Agency's right to implement its temporary
program, that is, its right to assign work under section 7106(a)(2)(B),
we find the proposal would be inappropriate because it would be
inappropriate because it would excessively interfere with management's
right under section 7106(b)(1) to determine the technology, methods and
means of performing work. It would be inappropriate because it would
completely negate the Agency's section 7106(b)(1) right to decide the
means to be used in the accomplishment of its mission, rather than
merely ameliorating the adverse affect on employees of the Agency's
exercise of its rights. See analysis of Proposal 1 above.
C. Conclusion
Union Proposal 2 concerns a matter negotiable only at the election of
management under section 7106(b)(1) of the Statute, as alleged by the
Agency. Moreover, the proposal does not constitute a procedure nor is
it an appropriate arrangement, under section 7106(b)(3), because it
would completely negate the exercise of management's rights. Therefore,
the Agency is under no obligation to bargain over the proposal.
V. Union Proposal 3
If GSA refuses or is unable to provide sufficient number of
cars for employees in the TCMP program, then those which are
provided will be assigned on a hardship basis. Indications of
hardship will include:
1. Only one car in the family.
2. Ownership of a car whose age and condition is such that it
is suitable only for local travel.
Union Proposal 4
Those employees working TCMP whose assignments are more than
150 miles from their POD (Post of Duty) who choose to fly will be
permitted to secure GSA cars when available or rental cars from
authorized GSA supplier for local transportation.
A. Positions of the Parties
The Agency contends that the proposals conflict with agency-wide
regulation IRM 1(14)47.1, "Motor Vehicle Management Handbook." It
further claims that its regulation is "dictated" by the GSA regulations
which govern the matters at issue. The Agency asserts, therefore, that
in the absence of a finding by the Authority that no compelling need
exists for this regulation, under section 7117(a)(2) of the Statute, the
Agency has no obligation to bargain over these proposals. The Agency
also contends that the proposals concern the technology, methods and
means of performing work under section 7106(b)(1), matters which are
negotiable only at the election of the Agency. Finally, with respect to
Union Proposal 4, the Agency states that because it is already
voluntarily complying with the substance of the proposal, any
negotiations would be meaningless.
The Union contends that the burden of proof is on the Agency to
demonstrate a compelling need for its regulations, and that the Agency
has failed to meet that burden. As to the Agency's view that the
proposals concern matters negotiable only at its election, the Union
asserts that Union Proposal 3 is a procedure for determining how a
previous management decision is to be implemented, and, therefore,
concerns a mandatory subject of bargaining. The Union also contends
that the Agency has merely asserted, without any rationale, that Union
Proposal 4 involves a permissive subject of bargaining, and that mere
assertion is insufficient to demonstrate that the proposal is outside
the duty to bargain.
B. Analysis
1. Compelling Need Under Section 7117(a)(2)
The Authority has consistently held that when an agency alleges the
nonnegotiability of a proposal because it conflicts with one of its
regulations under section 7117(a)(2), the agency bears the burden of
demonstrating that a compelling need exists for that particular
regulation. American Federation of Government Employees, AFL-CIO, local
1928 and Department of the Navy, Naval Air Development Center,
Warminster, Pennsylvania, 2 FLRA 450 (1980). In agreement with the
Union, the Agency in this case has failed to demonstrate that there is a
compelling need for its regulation.
The Agency's compelling need argument is based on its contention that
its regulation implements a mandate under GSA regulations. See section
2424.11(c) of the Authority's rules. The Agency does not specifically
contend that the proposals are inconsistent with GSA regulations
governing the assignment of cars to employees on official Government
business. However, the Agency variously states that its own regulations
"incorporate," are "dictated by," and are "based on" the GSA
regulations. An examination of the current GSA regulations governing
the matters covered by the proposals, as stated in GSA bulletin FPMR
A-40, Supp. 5, effective June 19, 1983, fails to reveal any
inconsistency between the proposals and GSA's current guidelines.
Specifically, it does not appear that current GSA guidelines include a
mileage test, which the Agency claims to have incorporated into its
regulations, and which it further claims is inconsistent with Union
Proposal 3. Therefore, the Agency has not supported its suggestion that
its regulations somehow are mandated by the GSA regulations.
2. Management Rights Under Section 7106(b)(1) and
Procedures and Appropriate Arrangements
Union Proposal 3 contemplates a situation where an insufficient
number of cars will be available for employees' use as a result of the
implementation of the Agency's temporary program. It provides that in
such a circumstance, cars will be allocated to employees on the basis of
hardship. Therefore, contrary to the Agency's position, the Authority
finds that Union Proposal 3 concerns a procedure for implementing
management's previous decision to use cars in performing the Agency's
mission during the existence of its temporary program, and does not
directly concern the technology, methods and means of performing work,
under section 7106(b)(1).
As to Proposal 4, the Union contends that the mere assertion by the
Agency that it involves permissive subjects of bargaining is not
sufficient to establish the assertion. The Authority agrees. However,
the Authority is required to find nonnegotiable proposals which appear
to conflict with law or Government-wide regulations. In the case of
Union Proposal 4, despite a lack of articulated rationale on the part of
the Agency in support of its assertion, the proposal does nonetheless
conflict with section 7106(b)(1) on its face. It would permit affected
employees to secure GSA cars, or rental cars, under the conditions
specified in the proposal, for local transportation in the performance
of their work. See discussion of Union Proposal 2 above. For this
reason, the proposal directly concerns the technology, methods and means
of performing work, under section 7106(b)(1).
As with the other proposals, the record does not clearly indicate how
Union Proposals 3 and 4 are intended to operate as procedures, under
section 7106(b)(2), or as appropriate arrangements, under section
7106(b)(3) of the Statute. Inasmuch as we have determined that Union
Proposal 3 constitutes a negotiable procedure under section 7106(b)(2)
of the Statute which does not directly interfere with any substantive
management rights, the ambiguousness of the record in this regard is
irrelevant. Concerning Union Proposal 4, the Authority has determined
above that it would directly interfere with management's right, under
section 7106(b)(1), to determine the technology, methods and means of
performing work. Therefore, regardless of whether the proposal is
intended as a procedure, it would be outside the duty to bargain. On
the other hand, assuming that the proposal is intended as an appropriate
arrangement for employees adversely affected by the Agency's right to
assign work, under section 7106(a)(2)(B), in connection with the
implementation of its temporary program, the Authority finds as follows.
The proposal would be inappropriate because it would completely negate
the Agency's section 7106(b)(1) right to decide the means to be used in
the accomplishment of its mission, rather than merely ameliorating the
adverse affect on employees of the Agency's exercise of its right to
assign work, under section 7106(a)(2)(B). See analysis of Proposal 2
above.
C. Conclusion
The Agency has failed to demonstrate either that Union Proposals 3
and 4 are inconsistent with an agency-wide regulation for which there is
a compelling need, or that they violate applicable GSA Government-wide
regulations. Union Porposal 3 constitutes a procedure which management
will observe in exercising its rights, under section 7106(b)(2) of the
Statute, and does not concern matters negotiable only at the election of
the Agency. Union Proposal 4 concerns the technology, methods and means
of performing work, under section 7106(b)(1). Because the proposal
directly interferes with the Agency's rights under section 7106(b)(1) of
the Statute, it does not constitute a procedure within the meaning of
section 7106(b)(2). Moreover, it excessively interferes with the
Agency's rights under section 7106(b)(1) and is not an appropriate
arrangement under section 7106(b)(3). Therefore for the reasons and
cases cited in the foregoing analysis, Union Proposal 3 is within the
duty to bargain and Union Proposal 4 is outside the duty to bargain.
/3/
VI. Union Proposal 5
As far as possible case assignments will be made in the
following manner:
1. Employees will be canvassed to determine their area or work
preference.
2. Management will take into account the preference and any
hardship reasons which dictate that preference.
3. In the case of 2 or more employees with the same preference
and no overriding hardship reasons for that preference, the
employee with the earliest service computation date shall be
accommodated.
A. Positions of the Parties
The Agency contends that the proposal conflicts with management's
right to assign work under section 7106(a)(2)(B) by substituting a
"preference, hardship, and seniority test" for the discretion and
judgment of management officials in determining which employee is to
perform what work.
The Union contends that the Agency has misinterpreted the proposal.
B. Analysis
According to the Union, the phrase "area of work" in the proposal
refers to the geographical locations of the work to be performed and not
to the actual work assignment. Therefore, the Union interprets the
proposal as constituting a procedure for the just and equitable
assignment of geographical locations to employees. Moreover, the Union
argues that the phrase "as far as possible" guarantees that management
retains the right to assign cases and would not prevent management from
acting at all in the exercise of its right.
The Authority finds no merit in the Union's contention that by
interpreting the phrase "area of work" to mean the geographical
locations of the work, the effect of the proposal is altered. On the
contrary, the proposal would have the effect of interfering with
management's discretion, under section 7106(a)(2)(B), to determine the
particular employees to whom work will be assigned. The record
indicates that the geographical locations of the work to be performed
are determinative of the particular job assignments. Therefore, if an
employee has the right to choose the geographical location of the work
to be done, management is precluded from assigning the employee to
perform a particular job in a different geographical location. See
National Treasury Employees Union and Department of the Treasury, Bureau
of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. NTEU v. FLRA, 691
F.2d 553 (D.C. Cir. 1982). Moreover, under the proposal, an arbitrator
could overturn a manager's decision to assign work to a particular
employee by concluding that the manager had not taken into account the
factors specified in the proposal "as far as possible." Such a result
would have the effect of directly interfering with management's right to
assign work. See, for example, American Federation of Government
employees, Local 32, AFL-CIO and Office of Personnel Management, 19 FLRA
No. 9 (1985) (Union Proposals 1, 2, and 3).
For this reason, Union Proposal 5 is distinguishable from cases
involving proposals which are negotiable because they concern the
selection of individual employees to temporarily perform assigned work
in different locations. In such cases, the decision as to where the work
of a given position is to be performed is not, as it is here,
determinative of the particular work to be assigned. Compare American
Federation of Government Employees, AFL- CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA 83, 86 (1981)
(criteria for selecting which employee will temporarily perform
previously assigned duties at a different location are within the duty
to bargain).
As with Union Proposals 1, 2, 3 and 4, the record fails to clearly
indicate how this proposal is intended to operate as a procedure or an
appropriate arrangement. The proposal is not a procedure because it
directly interferes with the Agency's right to assign work. If the
proposal is intended as an appropriate arrangement for employees
adversely affected by the Agency's right to assign a particular employee
to perform a particular job, the Authority finds that it could have the
effect of eompletely abrogating that right. Therefore, it excessively
interferes with management's right to assign work so as to be
inappropriate as an arrangement within the meaning of section 7106(b)(3)
of the Statute. See analysis in connection with Union Proposal 1 above.
C. Conclusion
The Authority concludes, for the reasons and cases cited in the
foregoing analysis, that Union Proposal 5 directly interferes with
management's right to assign work, under section 7106(a)(2)(B) of the
Statute, and, therefore, does not constitute a procedure under section
7106(b)(2). The Authority also concludes that if the Union intends the
proposal as an appropriate arrangement, it would excessively interfere
with management's right to assign work, so as to be nonnegotiable under
section 7106(b)(3). Therefore, Union Proposal 5 is outside the duty to
bargain.
VII. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning Union Proposal 3.
/4/ Furthermore, IT IS ORDERED that the Union's petition for review as
to Union Proposals 1, 2, 4 and 5 be, and it hereby is, dismissed.
Issued, Washington, D.C. June 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The union's petition for review requested negotiability
determinations on six proposals. In its response to the Agency's
statement of position, the Union withdrew its second proposal.
Accordingly, it will not be considered further by the Authority here.
(2) In making this negotiability determination, the Authority finds
irrelevant whether, as asserted by the Agency, the document referred to
in the proposal was ever intended to be mandatory or whether bargaining
over the proposal would serve a "useful purpose."
(3) Further, the Agency's contention that negotiations on Union
Proposal 4 would be "meaningless" because the Agency is already
voluntarily complying with the substance of the proposal, is, of course,
concerned with the merits rather than the legality of the proposal and
is therefore irrelevant in determining whether the proposal is outside
the duty to bargain.
(4) In finding Union Proposal 3 to be within the duty to bargain, the
Authority makes no judgment as to its merits.