National Treasury Employees Union, Chapter 66 and Internal Revenue Service, Kansas City Service Center (Authority decision, September 13, 1979)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving a negotiability appeal. 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

NTEU Chapter 66 proposed restoring a 7:00 a.m. to 3:30 p.m. shift in the IRS Kansas City Service Center's taxpayer assistance section. The IRS argued that the proposal concerned the number, types, or grades of employees assigned to a tour of duty, a subject it could choose whether to bargain over. The Authority found that the proposed hours fell within the agency's existing range of starting and ending times and that the record did not show any effect on staffing numbers, types, or grades. It set aside the agency's nonnegotiability allegation and held the shift-time proposal within the duty to bargain. The ruling did not prescribe how many employees should work that shift.

Decision snapshot

• Authority: 5 U.S.C. § 7106(b)(1).
• Outcome: Agency nonnegotiability allegation set aside; shift-time proposal within the duty to bargain.
• Key point: Adjusting start and end times within the existing range was not shown to determine the numbers, types, or grades of assigned employees.

Full text (FLRA public release)

[ v01 p927 ]

01:0927(106)NG

The decision of the Authority follows:

1 FLRA No. 106

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 66
(Union)

and

INTERNAL REVENUE SERVICE,
KANSAS CITY SERVICE CENTER
(Activity)

Case No. 0-NG-19

DECISION ON NEGOTIABILITY ISSUE

UNION PROPOSAL

THE UNION PROPOSED IN ESSENCE TO MAINTAIN THE "PRESENT SHIFTS" IN THE
TAXPAYER ASSISTANCE SECTION, I.E., 6:30 A.M. TO 3:00 P.M., 7:00 A.M. TO
3:30 P.M., 7:20 A.M. TO 3:50 P.M. /1/

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS A MATTER WITHIN THE
AGENCY'S DUTY TO BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS (FSLMR) STATUTE OR, AS ALLEGED BY THE AGENCY, IS A MATTER
WITHIN THE AMBIT OF SECTION

OPINION

CONCLUSION: THE PROPOSAL DOES NOT CONCERN A MATTER WHICH IS
NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1)
OF THE FSLMR STATUTE. ACCORDINGLY, PURSUANT TO 2424.8 OF THE
AUTHORITY'S RULES AND REGULATIONS (44 FED.REG. 44740 ET SEQ. (1979)),
THE AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE
DUTY TO BARGAIN IS SET ASIDE.

REASONS: UNDER THE PLAIN LANGUAGE OF SECTION 7106(B)(1) OF THE
STATUTE (AND IN THE ABSENCE OF ANY CONTRARY INDICATION IN THE
LEGISLATIVE HISTORY OF SUCH LANGUAGE) THE CLEAR MEANING OF THIS SECTION
IS TO RENDER THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO A
TOUR OF DUTY NEGOTIABLE AT THE AGENCY'S ELECTION. /3/ A PROPOSAL
OTHERWISE CONSISTENT WITH THE STATUTE, WHICH, BY ITS DIRECT OR INTEGRAL
RELATIONSHIP TO THE NUMBERS, TYPES, OR GRADES OF EMPLOYEES OR POSITIONS
ASSIGNED TO A TOUR OF DUTY, WOULD BE DETERMINATIVE OF SUCH (LINE(S) OF
SOURCE COPY CUT OFF BY COPY MACHINE) EXPLICITLY RELATE TO THE NUMBERS,
TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO THE TOUR OF DUTY OR TO THE
ORGANIZATIONAL SUBDIVISION HEREIN, SO AS TO COME WITHIN THE LITERAL
LANGUAGE OF SECTION 7106(B)(1).

FURTHER, CONTRARY TO THE AGENCY'S UNSUPPORTED ASSERTIONS, THE RECORD
DOES NOT DISCLOSE THAT THE PROPOSAL IS IN ANY MANNER DIRECTLY OR
INTEGRALLY RELATED TO THE NUMBERS, TYPES, OR GRADES OF THE EMPLOYEES OR
POSITIONS OF THE TOUR OF DUTY OR ORGANIZATIONAL SUBDIVISION INVOLVED
HEREIN SO AS TO BE DETERMINATIVE OF SUCH NUMBERS, TYPES, AND GRADES.
RATHER, THE RECORD INDICATES THAT THE AGENCY MAINTAINS TWO STARTING
TIMES AND TWO QUITTING TIMES FOR THE TAXPAYER ASSISTANCE SECTION:
NAMELY, STARTING TIMES OF 6:30 A.M. AND 7:20 A.M. AND QUITTING TIMES OF
3:00 P.M. AND 3:50 P.M. THUS, THE REINSTITUTION OF THE 7 A.M. STARTING
TIME AND THE 3:30 P.M. QUITTING TIME PROPOSED BY THE UNION WOULD FALL
WITHIN THE RANGE OF STARTING AND QUITTING TIMES ESTABLISHED BY THE
AGENCY. IN PRACTICAL EFFECT, THEREFORE, IT APPEARS FROM THE RECORD IN
THE CASE THAT IMPLEMENTATION OF THE PROPOSAL WOULD AMOUNT TO A
RELATIVELY MINOR ADJUSTMENT IN THE STARTING AND QUITTING TIMES OF THE
EMPLOYEES ASSIGNED TO THE TOUR OF DUTY OF THIS ORGANIZATIONAL
SUBDIVISION.

IMPLEMENTATION OF THE PROPOSAL WOULD NOT AFFECT THE AGENCY'S
POSITIONS OR PERSONNEL IN A MANNER WHICH WOULD BE DETERMINATIVE OF THE
NUMBERS, TYPES, OR GRADES OF THE EMPLOYEES OR POSITIONS ASSIGNED TO THE
TOUR OF DUTY OR TO THE ORGANIZATIONAL SUBDIVISION, I.E., TAXPAYER
ASSISTANCE SECTION. AS STATED PREVIOUSLY, THERE IS NO INDICATION IN THE
RECORD, BEYOND THE UNSUPPORTED ASSERTION OF THE AGENCY, THAT
IMPLEMENTATION OF THE PROPOSAL WOULD IN ANY WAY AFFECT THE NUMBERS,
TYPES, AND GRADES OF SUCH POSITIONS OR PERSONNEL. THE UNION'S PROPOSAL
RELATES ONLY TO PERMITTING A MODICUM OF FLEXIBILITY WITHIN THE RANGE OF
STARTING AND QUITTING TIMES FOR THE EXISTING TOUR OF DUTY.

IN SUMMARY, THE AGENCY HAS NOT DEMONSTRATED THAT THE SUBJECT
PROPOSAL, WITHIN THE CIRCUMSTANCES OF THIS PARTICULAR CASE, WOULD BE
DETERMINATIVE OF THE NUMBERS, TYPES, OR GRADES OF EMPLOYEES OR POSITIONS
AND, CONSEQUENTLY, NEGOTIABLE AT THE ELECTION OF THE AGENCY UNDER
SECTION 7106(B)(1) OF THE STATUTE.

THEREFORE, THE PROPOSAL AT ISSUE IS A MATTER WITHIN THE AGENCY'S DUTY
TO BARGAIN UNDER THE STATUTE, AND THE AGENCY'S ALLEGATION THAT THE
PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN MUST BE SET ASIDE. /5/

ISSUED, WASHINGTON, D.C., SEPTEMBER 13, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY /6/

/1/ IT APPEARS THAT THIS DISPUTE AROSE AS A RESULT OF THE ACTIVITY'S
DECISION TO ELIMINATE THE 7 A.M. STARTING TIME AND THE 3:30 P.M.
QUITTING TIME WITHIN THE TAXPAYER ASSISTANCE SECTION. THE UNION'S
PROPOSAL ESSENTIALLY WOULD REQUIRE THE ACTIVITY TO REINSTITUTE THE
ELIMINATED STARTING AND QUITTING TIMES WITHIN THE SECTION. WHILE THE
UNION'S APPEAL, AS SUBMITTED, CONTAINED NUMEROUS OTHER PROPOSALS
CONCERNING THE IMPACT OF THE ACTIVITY'S DECISION, THESE OTHER PROPOSALS
WERE WITHDRAWN FROM DISPUTE.

/2/ SECTION 7106(B)(1) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (92 STAT. 1198) PROVIDES:

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM

NEGOTIATING--

(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR

POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE

TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)

/3/ CONCERNING THE NATURE OF THE AGENCY'S OBLIGATION TO NEGOTIATE
OVER NUMBERS, TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO A TOUR OF DUTY,
THE FOLLOWING EXCHANGE OCCURRED DURING THE FLOOR DEBATE ON THE FINAL
VERSION OF SECTION 7106:

MR. EDWARDS OF ALABAMA. THE EXECUTIVE ORDER SAYS THAT THERE SHALL BE
NO OBLIGATION TO MEET

AND CONFER ON "NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES
ASSIGNED TO AN

ORGANIZATIONAL UNIT, WORK PROJECT, OR TOUR OF DUTY," AND SO FORTH;
IN OTHER WORDS, DOWN AT THE

BASE LEVEL IN THE CASE OF A DEFENSE FACILITY, FOR EXAMPLE. YET, IN
THE UDALL SUBSTITUTE IT

SAYS THEY ARE NOT "PRECLUDED" FROM MEETING AND CONFERRING WHICH
SUGGESTS THAT UNDER THE HEAT

OF BARGAINING THEY IN FACT COULD NEGOTIATE AND BARGAIN AT THAT LEVEL.
IS THE DEFENSE

DEPARTMENT OR ANY OTHER FEDERAL AGENCY, FOR THAT MATTER, REQUIRED TO
BARGAIN ON THOSE

PARTICULAR SUBJECTS?

. . . .

MR. FORD OF MICHIGAN. IT IS PERMISSIBLE, AND IT IS IN EXACTLY THE
SAME STATUS AS THE

EXISTING LAW. I MIGHT SAY THAT NOT ONLY ARE THEY UNDER NO OBLIGATION
TO BARGAIN, BUT IN FACT

THEY CAN START BARGAINING AND CHANGE THEIR MINDS AND DECIDE THEY DO
NOT WANT TO TALK ABOUT IT

ANY MORE, AND PULL IT OFF THE TABLE. IT IS COMPLETELY WITHIN THE
CONTROL OF THE AGENCY TO

BEGIN DISCUSSING THE MATTER OR TERMINATE THE DISCUSSION AT ANY POINT
THEY WISH WITHOUT A

CONCLUSION, AND THERE IS NO APPEAL OR REACTION POSSIBLE FROM THE
PARTIES ON THE OTHER SIDE OF

THE TABLE.

IT IS COMPLETELY, IF YOU WILL, AT THE PLEASURE AND THE WILL OF THE
AGENCY. WHERE AN AGENCY

WANTS TO RESOLVE A PARTICULAR PROBLEM WITH AN ORGANIZATION AND COME
TO SOME AGREEMENT, IT CAN

CHOOSE TO DO SO. THERE ARE CIRCUMSTANCES WHERE THAT HAS BEEN DONE,
BUT VERY RARELY.

. . . .

MR. EDWARDS OF ALABAMA. SO THAT, IF I UNDERSTAND THE GENTLEMAN
CORRECTLY-- AND I WILL USE

THE DEFENSE DEPARTMENT AGAIN AS AN EXAMPLE-- IF THE DEFENSE
DEPARTMENT CHOOSES NOT TO

NEGOTIATE ON THE SUBJECT OF "NUMBERS, TYPES AND GRADES OF POSITIONS
OR EMPLOYEES ASSIGNED TO

AN ORGANIZATION UNIT, WORK PROJECT, OR TOUR OF DUTY," AND SO FORTH,
AS PROVIDED IN THAT

SUBSECTION (B)(1), THEN THERE IS NO WAY THAT THEY CAN BE FORCED TO
NEGOTIATE ON THOSE

SUBJECTS?

MR. FORD OF MICHIGAN. THAT IS CORRECT.

. . . .

MR. EDWARDS OF ALABAMA. AND IF THEY IN FACT START NEGOTIATING ON
THOSE SUBJECTS AND

CONCLUDE AT SOME POINT THAT THEY SHOULD NOT NEGOTIATE FURTHER, THERE
IS NO WAY TO FORCE THEM

TO NEGOTIATE FURTHER?

MR. FORD OF MICHIGAN. THAT IS CORRECT. IT IS COMPLETELY WITHIN THE
DISCRETION OF ONE SIDE

OF THE TABLE, AND THERE IS NO APPEAL FROM THEIR DECISION.

MR. EDWARDS OF ALABAMA. IT IS THE GENTLEMAN'S OPINION, IF I
UNDERSTAND THE GENTLEMAN

CORRECTLY, THAT THE INTENTION OF THE DRAFTERS OF THIS PARTICULAR
SECTION OF THE UDALL

SUBSTITUTE IS THAT, IN PRACTICAL EFFECT, THEY HAVE INTENDED TO CARRY
OUT THE ORIGINAL LANGUAGE

OF THE EXECUTIVE ORDER, BUT HAVE JUST REARRANGED IT IN A DIFFERENT
WAY.

MR. FORD OF MICHIGAN. I BELIEVE THAT THOSE OF MY COLLEAGUES WHO HAVE
WORKED ON THE BILL

COULD CONCUR WITH ME THAT IT WAS NOT OUR INTENTION TO SUBSTANTIVELY
AFFECT THE STATUS QUO WITH

RESPECT TO SPECIFIC ITEMS CONTAINED IN EITHER OF THE SECTIONS
INVOLVING ITEMS THAT ARE

PERMISSIBLY NEGOTIABLE.

124 CONG.REC. H9646 (DAILY ED. SEPT. 13, 1978).

/4/ PROPONENTS OF THE BILL ENDORSED THIS APPROACH TOWARDS NEGOTIATION
ON THESE SUBJECTS AS MANDATED BY THE FINAL VERSION OF TITLE VII. SEE,
E.G., REMARKS OF REP. FORD AT 124 CONG. REC. H9649 (DAILY ED. SEPT. 13,
1978) WHICH INDICATE AS FOLLOWS:

IN ADOPTING THIS COURSE, IN THE UDALL COMPROMISE, WE IMPLEMENT THE
RATIONALE OF SEVERAL

DECISIONS OF RELEVANT OVERSIGHT AGENCIES FOR FEDERAL SECTOR LABOR
RELATIONS. THE FEDERAL

LABOR RELATIONS COUNCIL, FOR EXAMPLE, HAS RULES THAT A PROPOSAL MUST
DIRECTLY RELATE TO THE

"NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES" BEFORE THAT
PROPOSAL CAN BE RULED

NONNEGOTIABLE BECAUSE IT INFRINGES ON THE MANAGEMENT RIGHT UNDER THE
EXECUTIVE ORDER TO

DETERMINE THOSE MATTERS.

. . . .

AS THE SECTIONAL ANALYSIS MAKES CLEAR, THE UDALL SUBSTITUTE IS
DRAFTED SO AS TO EMBODY IN

THE STATUTE THE APPROACH OF THESE AND SIMILAR DECISIONS . . .

SEE ALSO, 124 CONG. REC. H9638 (DAILY ED. SEPT. 13, 1978) (REMARKS OF
REP. CLAY).

/5/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSAL.

/6/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
STATES SENATE AS A MEMBER OF THE AUTHORITY.