National Treasury Employees Union and Internal Revenue Service (Authority decision, December 21, 1979)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union proposed increasing the share of IRS vacancies designated for upward mobility over several years. The Authority separated the proposal's two sentences. Requiring the IRS to announce a specified share of vacancies as upward mobility positions was a negotiable procedure because management could still decide whether and how to fill them. The sentence requiring the IRS to actually fill specified percentages conflicted with management's rights to hire and assign employees. The agency's nonnegotiability allegation was sustained for the filling requirement and set aside for the announcement requirement.

Decision snapshot

• Authority: 5 U.S.C. §§ 7106(a)(2) and 7106(b)(2).
• Outcome: Vacancy announcement requirement negotiable; mandatory filling requirement nonnegotiable.
• Key point: Announcing vacancies as upward mobility opportunities was distinct from requiring the agency to fill them.

Full text (FLRA public release)

[ v02 p281 ]

02:0281(33)NG

The decision of the Authority follows:

2 FLRA No. 33

NATIONAL TREASURY EMPLOYEES UNION
(Union)

and

INTERNAL REVENUE SERVICE
(Activity)

Case No. 0-NG-109

DECISION ON NEGOTIABILITY ISSUES

UNION PROPOSAL

SECTION 4

THE IRS AGREES THAT DURING FISCAL YEAR 1979 IT WILL ANNOUNCE 10
PERCENT MORE OF THE TOTAL

AVAILABLE VACANCIES IN EACH APPOINTING OFFICE IN JOB SERIES AS UPWARD
MOBILITY POSITIONS THAN

IN FISCAL YEAR 1978; 5 PERCENT MORE IN FISCAL YEAR 1980 THAN IN
1979; AND 5 PERCENT MORE IN

FISCAL YEAR 1981 THAN IN FISCAL YEAR 1980. FOR EXAMPLE, IF AN
APPOINTING OFFICE FILLED 40 OF

100 (40%) OF THE AVAILABLE GS-512 REVENUE AGENT POSITIONS WITH
EMPLOYEES PREVIOUSLY EMPLOYED

BY THE IRS IN FISCAL YEAR 1978, IT WOULD BE REQUIRED TO FILL 50% OF
THE AVAILABLE GS-512

POSITIONS IN FISCAL YEAR 1979; 55% IN FISCAL YEAR 1980; AND 60% IN
FISCAL YEAR 1981 AS UPWARD

MOBILITY POSITIONS USING THE PROCEDURES SET FORTH IN SECTION 5.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE DUTY TO
BARGAIN UNDER SECTION 7106(B)(2), OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) OR IS OUTSIDE THE DUTY
TO BARGAIN UNDER SECTION 7106(A)(2), AS ALLEGED BY THE AGENCY. /1/

CONCLUSION: THE FIRST SENTENCE OF THE UNION'S PROPOSAL REQUIRING THE
AGENCY TO ANNOUNCE CERTAIN PERCENTAGES OF THE TOTAL AVAILABLE VACANCIES
AS UPWARD MOBILITY POSITIONS IS A NEGOTIABLE PROCEDURE UNDER SECTION
7106(B)(2) OF THE STATUTE. THE SECOND SENTENCE OF THE DISPUTED PROPOSAL
CONCERNING A REQUIREMENT TO FILL CERTAIN PERCENTAGES OF SUCH VACANCIES
AS UPWARD MOBILITY POSITIONS VIOLATES MANAGEMENT'S RIGHT TO HIRE AND
ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2) OF THE STATUTE. ACCORDINGLY,
PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND REGULATIONS (44
FED.REG. 44740 ET SEQ.(1979)), THE AGENCY ALLEGATION IS SUSTAINED IN
PART AND SET ASIDE IN PART. /2/

REASONS: THE FIRST PART OF THE UNION'S PROPOSAL MERELY WOULD REQUIRE
THE AGENCY TO ANNOUNCE A CERTAIN PERCENTAGE OF THE TOTAL AVAILABLE
VACANCIES AS UPWARD MOBILITY POSITIONS. THE SECOND PART OF THE
PROPOSAL, HOWEVER, WOULD BY ITS LITERAL LANGUAGE REQUIRE MANAGEMENT TO
FILL A CERTAIN PERCENTAGE OF SUCH VACANT POSITIONS IN ACCORDANCE WITH
THE CONDITIONS SET FORTH IN THE PROPOSAL. IN THIS LATTER REGARD, THE
UNION EXPRESSLY STATES THAT IT DOES NOT INTEND THE PROPOSAL TO REQUIRE
THE AGENCY TO FILL POSITIONS. THE AGENCY'S POSITION IS TWOFOLD: (1)
THE UNION'S PROPOSAL VIOLATES SECTION 7106(A)(2) OF THE STATUTE BECAUSE
IT WOULD RESTRICT MANAGEMENT'S RIGHTS WITH RESPECT TO SELECTING
CANDIDATES AND FILLING POSITIONS AND (2) IF THE PROPOSAL DOES NOT
REQUIRE THE AGENCY TO ACTUALLY FILL ANY VACANCIES, AS ARGUED BY THE
UNION, THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT WOULD BE
MERELY NUGATORY, REQUIRING MANAGEMENT TO PERFORM A POTENTIALLY USELESS
ACT.

TURNING INITIALLY FOR CONVENIENCE OF ANALYSIS TO THE SECOND SENTENCE
OF THE PROPOSAL, THE CLEAR AND EXPLICIT LANGUAGE OF THAT SENTENCE STATES
THAT MANAGEMENT "WOULD BE REQUIRED TO FILL 50% OF THE AVAILABLE GS-512
POSITIONS IN FISCAL YEAR 1979; 55% IN FISCAL YEAR 1980; AND 60% IN
FISCAL YEAR 1981 AS UPWARD MOBILITY POSITIONS USING THE PROCEDURES SET
FORTH IN SECTION 5." THUS, ON ITS FACE, THE PLAIN LANGUAGE OF THE SECOND
SENTENCE OF THE PROPOSAL DOES NOT COINCIDE WITH THE UNION'S STATEMENT AS
TO THE INTENDED MEANING OF THAT LANGUAGE AND, CONTRARY TO THE UNION'S
ASSERTION, WOULD REQUIRE THE AGENCY TO ACTUALLY FILL POSITIONS. THIS
REQUIREMENT WOULD VIOLATE MANAGEMENT'S RESERVED AUTHORITY UNDER SECTION
7106(A)(2)(A) OF THE STATUTE TO "HIRE" AND "ASSIGN" EMPLOYEES OR TO
DECIDE NOT TO TAKE SUCH ACTIONS.

CONSEQUENTLY, SINCE THE SECOND SENTENCE OF THE PROPOSAL EXPRESSLY
WOULD REQUIRE MANAGEMENT ACTION IN VIOLATION OF SECTION 7106(A)(2)(A) OF
THE STATUTE, THE AGENCY ALLEGATION THAT IT IS OUTSIDE THE DUTY TO
BARGAIN IS SUSTAINED. /3/

HOWEVER, WITH RESPECT TO THE FIRST SENTENCE OF THE PROPOSAL, ITS
LANGUAGE AS WELL AS THE UNION'S STATED INTENT AS TO THE MEANING OF SUCH
LANGUAGE ALREADY ADVERTED TO ONLY WOULD REQUIRE THE AGENCY TO ANNOUNCE
VACANCIES BUT NOT NECESSARILY TO FILL THEM.

MORE PARTICULARLY, THE UNION STATES IN ITS PETITION FOR REVIEW AS
FOLLOWS:

. . . IRS WOULD BE OBLIGATED TO ANNOUNCE A CERTAIN PERCENTAGE OF ITS
AVAILABLE POSITIONS

INTERNALLY BEFORE ANNOUNCING A POSITION TO NON-BARGAINING UNIT
EMPLOYEES. . . . (T)HE

LANGUAGE DID NOT MEAN THAT IRS WAS OBLIGATED TO SELECT A FIXED
PERCENTAGE OF EMPLOYEES FROM

AMONG PRESENT IRS EMPLOYEES.

IN THIS SAME REGARD, THE UNION STATES IN ITS RESPONSE TO AGENCY
STATEMENT OF POSITION, AS FOLLOWS:

THE PROPOSAL MERELY REQUIRES THAT VACANCY ANNOUNCEMENTS BE POSTED AND
THOSE WHO RESPOND TO

IT BE CONSIDERED FIRST. IF MANAGEMENT EITHER FINDS THE NUMBER OR
TYPE OR QUALITY OF

APPLICANTS UNSUITABLE, IT MAY EXERCISE ITS RIGHT AND DISCRETION TO GO
TO ANY OTHER APPROPRIATE

SOURCE.

THE AUTHORITY SO INTERPRETS THE FIRST SENTENCE FOR PURPOSES OF THIS
DECISION. IN THIS CONNECTION, THE AGENCY CONTENTION THAT THE PROPOSAL
WOULD REQUIRE MANAGEMENT TO PERFORM A POTENTIALLY UNLESS ACT, THEREBY IN
EFFECT CAUSING UNREASONABLE DELAY AND NEGATING MANAGEMENT RIGHTS IN THE
EVENT THE AGENCY DECIDED TO FILL THE POSITIONS AS OTHER THEN UPWARD
MOBILITY POSITIONS, OR NOT TO FILL THEM AT ALL, IS WITHOUT DISPOSITIVE
SIGNIFICANCE.

THE AUTHORITY REJECTED A SUBSTANTIALLY SIMILAR AGENCY CONTENTION IN
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND
ARMY-AIR FORCE EXCHANGE SERVICE, FORT DIX, NEW JERSEY, CASE NO. O-NG-20,
2 FLRA NO. 16 (NOV. 29, 1979), REPORT NO. . IN THAT CASE THE PROPOSAL
AT ISSUE PROVIDED FOR A STAY OF AGENCY DISCIPLINARY ACTION PENDING
EXHAUSTION OF THE GRIEVANCE AND ARBITRATION PROCESS. THE AUTHORITY
ANALYZED THE RELEVANT LEGISLATIVE HISTORY OF THE STATUTE AS FOLLOWS (AT
P. 2-4 OF THE DECISION):

SECTION 7106 OF THE STATUTE SPECIFIES, IN SUBSECTION (A), VARIOUS
RIGHTS RESERVED TO AGENCY

MANAGEMENT. SECTION 7106(B)(2), HOWEVER, PROVIDES THAT THE
ENUMERATION OF THE SPECIFIED

MANAGEMENT RIGHTS IN SUBSECTION (A) DOES NOT PRECLUDE THE NEGOTIATION
OF PROCEDURES WHICH

MANAGEMENT WILL OBSERVE IN EXERCISING THOSE RIGHTS. THE LEGISLATIVE
HISTORY OF THE STATUTE,

AS IT PERTAINS TO SUBSECTION (B)(2), REVEALS, FIRST OF ALL, THAT THE
COMMITTEE ON CONFERENCE,

IN ADOPTING THE BILL WHICH SUBSEQUENTLY WAS ENACTED BY CONGRESS AND
SIGNED INTO LAW BY THE

PRESIDENT, SPECIFICALLY REJECTED A PROVISION OF THE SENATE BILL (S.
2640) WHICH PROVIDED THAT

NEGOTIATION ON PROCEDURES SHOULD NOT "UNREASONABLY DELAY" SO AS TO
"NEGATE" THE EXERCISE OF

MANAGEMENT'S RESERVED RIGHTS. THE CONCLUSION IS JUSTIFIED,
THEREFORE, THAT CONGRESS DID NOT

INTEND SUBSECTION (B)(2) TO PRECLUDE NEGOTIATION ON A PROPOSAL MERELY
BECAUSE IT MAY IMPOSE ON

MANAGEMENT A REQUIREMENT WHICH WOULD DELAY IMPLEMENTATION OF A
PARTICULAR ACTION INVOLVING THE

EXERCISE OF A SPECIFIED MANAGEMENT RIGHT. RATHER, AS THE CONFERENCE
REPORT INDICATES,

SUBSECTION (B)(2) IS INTENDED TO AUTHORIZE AN EXCLUSIVE
REPRESENTATIVE TO NEGOTIATE FULLY ON

PROCEDURES, EXCEPT TO THE EXTENT THAT SUCH NEGOTIATIONS WOULD PREVENT
AGENCY MANAGEMENT FROM

ACTING AT ALL. THAT IS, INSOFAR AS IT IS CONSISTENT WITH THE RIGHT
OF MANAGEMENT ULTIMATELY

TO ACT, CONGRESS INTENDED THE PARTIES TO WORK OUT THEIR DIFFERENCES
WITH REGARD TO PROCEDURES

IN NEGOTIATIONS.

BASED ON THE FOREGOING ANALYSIS SET OUT WITH GREATER PARTICULARITY IN
THE ARMY-AIR FORCE EXCHANGE SERVICE CASE, THE FIRST SENTENCE OF THE
PROPOSAL WOULD NOT PREVENT THE AGENCY FROM ACTING AT ALL TO EXERCISE ITS
STATUTORY RIGHT TO FILL OR NOT TO FILL VACANT POSITIONS BUT ONLY WOULD
ESTABLISH A PROCEDURAL REQUIREMENT WHEREBY A CERTAIN NUMBER OF VACANT
POSITIONS WOULD IN THE FIRST INSTANCE BE ANNOUNCED AS UPWARD MOBILITY
POSITIONS. HENCE THAT PART OF THE PROPOSAL DOES NOT CONFLICT WITH
MANAGEMENT'S RIGHTS UNDER SECTION 7106(A) OF THE STATUTE. RATHER IT IS
WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE.
ACCORDINGLY, THE AGENCY'S ALLEGATION TO THE CONTRARY IS SET ASIDE.

ISSUED, WASHINGTON, D.C., DECEMBER 21, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, SEC.
7016 (92 STAT. 1198), PROVIDES IN RELEVANT PART, AS FOLLOWS:

7106. MANAGEMENT RIGHTS

(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE

AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--

. . . .

(2) IN ACCORDANCE WITH APPLICABLE LAWS--

(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,

REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES;

. . . .

(C) WITH RESPECTS TO FILLING POSITIONS, TO MAKE SELECTIONS FOR
APPOINTMENTS FROM--

(I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION; OR

(II) ANY OTHER APPROPRIATE SOURCE(.)

/2/ IN SO DECIDING THAT THE FIRST SENTENCE OF THE DISPUTED PROPOSAL
IS WITHIN THE DUTY TO BARGAIN THE AUTHORITY MAKES NO JUDGMENT AS TO THE
MERITS OF THE PROPOSAL.

/3/ IN VIEW OF THE DECISION HEREIN THAT SECTION 7106(A)(2)(A) IS
DISPOSITIVE WITH RESPECT TO THE DUTY TO BARGAIN OVER THE SECOND SENTENCE
OF THE PROPOSAL, THE AUTHORITY FINDS IT UNNECESSARY TO CONSIDER THE
AGENCY'S ADDITIONAL CONTENTION THAT THE SENTENCE VIOLATES SECTION
7106(A)(2)(C) OF THE STATUTE.