23:0273(36)NG - NTEU and Treasury, IRS -- 1986 FLRAdec NG
[ v23 p273 ]
23:0273(36)NG
The decision of the Authority follows:
23 FLRA No. 36
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
Agency
Case No. 0-NG-1228
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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 the underscored sentence of a single provision
disapproved upon review by the Agency head under section 7114(c).
II. Provision
5. Upon returning to duties once performed, employees
participating in a rotation policy may request refresher training.
Employees will also receive a reasonable amount of administrative
time to become familiar with all relevant IRM changes, management
memorandum, etc., that have been issued while performing other
duties. /1/
III. Positions of the Parties
The Agency concedes that employees are required as a part of thier
jobs to familiarize themselves with the kinds of Agency directives,
regulations and memoranda referred to in the provision. Agency
Statement of Position at 3. The Agency argues nevertheless that the
provision would violate management's right to assign work because it
would require management to give employees time to review such materials
without regard to whether there are other work assignments which
management has determined should take priority.
The Union contends that the provision does not interfere with
management's right to assign work. The Union also argues that the
provision is an appropriate arrangement under section 7106(b)(3)
because, even if it does interfere with management's rights, that
interference is not excessive.
IV. Analysis and Conclusion
A. Whether the Provision violates Management's Right to
Assign Work
The provision would require management to give employees who are
returning to their regular jobs after a detail a reasonable amount of
time to become familiar with job-related materials issued while they
were on detail. The provision would thus require management to give
priority to this aspect of employees' jobs over other assigned duties.
In establishing such a priority among work assignments the provision has
the same effect as the first paragraph of Union Proposal I in American
Federation of Government Employees, AFL-CIO, International Council of
U.S. Marshals Service Locals and Department of Justice, U.S. Marshals
Service, 4 FLRA 384, 385-86 (1980). Like that proposal, the provision
here requires management to assign one type of work to employees to the
exclusion of other duties which management may determine have a higher
priority. For the reasons stated in U.S. Marshals Service, we find that
the provision directly interferes with management's right to assign work
under section 7106(a)(2)(B) of the Statute. In reaching this
conclusion, we find, contrary to the Union's claim (Union Response to
Agency Statement of Position at 7), that neither the language of the
provision itself, nor of the agreement of which it is a part (Attachment
1 to Union Petition for Review), contains an "opt out" clause which
permits management to deny employee requests for a reasonable amount of
time where there is "just cause".
B. Whether the Provision Constitutes an "Appropriate
Arrangement" under Section 7106(b)(3)
Even though we have found that the provision interferes with
management's rights, we need not conclude that it is nonnegotiable if we
also find that it is an "appropriate arrangement for employees adversely
affected" by the exercise of management's rights. For the following
reasons we find, in agreement with the Union, that the provision is
within the duty to bargain because it does not excessively interfere
with management's rights. See National Association of Government
Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4
(1986).
The proposal is clearly intended to be an "arrangement" for employees
adversely affected by the exercise of management's right to assign
employees under section 7106(a)(2)(A). As the Agency acknowledges,
employees are required to be familiar with all job-related directives,
regulations, and memoranda. When employees are assigned away from their
regular positions to entirely different jobs, they are not able -- nor
do they need -- to study those materials. Upon return to their regular
positions, employees will be handicapped in the performance of their
duties if they are unfamiliar with instructions issued during their
absence. The provision attempts to mitigate against that consequence by
providing employees a "reasonable" amount of time to become acquainted
with such job-related material.
The remaining issue is whether the burden placed on management's
right to assign work by requiring that employees be permitted a
reasonable amount of time, at the possible expense of other duties, is
excessive compared to the benefit to employees in having such time. We
conclude that the benefits of the provision to employees -- and to
management -- outweigh its effect on management's right to determine
work priorities.
As we have said elsewhere, management's right to assign work is
reserved in the Statute in order to protect, among other things,
management's ability to manage its workload. American Federation of
Government Employees, Local 32, AFL-CIO and Office of Personnel
Management, 22 FLRA No. 29 (1986). The impact of the disputed provision
on this management interest is insignificant. The provision provides
for the assignment of tasks which are already a part of an employee's
job responsibilities. It does not, therefore, require management to
sacrifice employee worktime to activities or purposes which are
unrelated to the accomplishment of the Agency's workload. Moreover, the
provision does not prevent management from requiring employees to
perform any part of their jobs. It would simply require management to
afford employees time to prepare to do those tasks which involve
job-related materials issued in their absence. At most it would merely
delay the start of work by employees on those other tasks. And since
the provision does not require management to grant employees an
unlimited amount of time, but only so much as is reasonably necessary to
become familiar with relevant materials -- a matter regarding which
management thus retains some discretion -- any such delay would not be
unduly burdensome on management's ability to accomplish its work.
If employees did not have the time permitted by the provision, they
would face the difficult task of performing the duties of their
positions without having reviewed all the information necessary to
perform those duties in accordance with current requirements. A
reasonably foreseeable consequence of this situation is that employees
will not perform as well as might otherwise be expected: they will not
complete work as quickly or they will make more mistakes, for example --
all of which would detrimentally affect their performance evaluations,
particularly in comparison with those employees who had not been
detailed. This situation is not one for which employees are
responsible, since the decision to detail is solely a matter of
management discretion.
Employees' job performance would likely be enhanced if time was
provided to become familiar with the current requirements of their jobs
upon return from a detail. Management's interest in getting the best
quality work product as quickly as possible would be enhanced also. In
this manner, the provision would contribute to, rather than detract
from, the achievement of a more effective and efficient workforce.
Taking all of these factors into account, we find that the burden
imposed by the provision on management's right to assign work is
insubstantial compared to the benefit to employees -- and, derivatively,
to management -- afforded by the provision. We conclude, therefore,
that the provision does not excessively interfere with management's
right to assign work and is a negotiable "appropriate arrangement" under
section 7106(b)(3) of the Statute. See also American Federation of
Government Employees, Local 3231 and Social Security Administration, 22
FLRA No.92 (1986) (Union Proposal 3).
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall rescind its disapproval
of the disputed provisions. /2/
Issued, Washington, D.C., August 19, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) In its Statement of Position the Agency indicated that this is
the express language of the proposal. The Union in its initial
submission apparently had used the phrase "official time" instead of
"administrative time." The Union's Response to the Agency's Statement of
Position did not challenge the Agency's presentation of the proposal and
thus the Authority has considered the proposal as stated above.
(2) In finding that the provision is within the duty to bargain, the
Authority makes no judgment as to the merits of the provision.