National Treasury Employees Union and Internal Revenue Service (Authority decision, February 4, 1982)

Final FLRA decision. The Authority held both disputed performance evaluation proposals within the duty to bargain and ordered the IRS to bargain on request. An aggrieved person may petition an appropriate United States court of appeals for review within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The IRS planned to collect work measurement and telephone performance data through two systems. NTEU proposed that evaluative conclusions from those statistics be supported by other evidence, such as observation of employee behavior. The Authority read the proposals as requiring confirmation of the data's validity, without changing management's performance standards or the proof required in personnel actions. It held both proposals negotiable procedures under 5 U.S.C. § 7106(b)(2) and ordered bargaining on request. The decision expressed no view on the proposals' merits and imposed no penalty.

Decision snapshot

• Authority: 5 U.S.C. §§ 7105(a)(2)(E) and 7106(b)(2).
• Outcome: Both proposals held negotiable; IRS ordered to bargain on request.
• Key point: Requiring confirmation of statistical evaluation data did not prevent management from using the data or taking personnel action.

Full text (FLRA public release)

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08:0030(5)NG

The decision of the Authority follows:

8 FLRA No. 5

NATIONAL TREASURY EMPLOYEES UNION
Union

and

INTERNAL REVENUE SERVICE
Agency

Case No. 0-NG-331

DECISION AND ORDER ON NEGOTIABILITY ISSUES

THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
AND RAISES ISSUES CONCERNING THE NEGOTIABILITY OF THE FOLLOWING TWO
UNION PROPOSALS:

1. EVALUATIVE CONCLUSIONS BASED ON THE STATISTICAL DATA GENERATED BY
   THE ROCKWELL-COLLINS

ACD-V SYSTEM MUST BE ACCOMPANIED BY EVIDENCE GATHERED BY OTHER
EVALUATIVE TECHNIQUES

I.E. OBSERVATION OF EMPLOYEE BEHAVIOR. THIS EVIDENCE MUST BE
SUFFICIENT TO LEAVE NO

REASONABLE DOUBT THAT THE STATISTICAL DATA DOES INDEED REPRESENT
INEFFICIENT OR IMPROPER

ACTIVITY BY THE EMPLOYEE.

2. EVALUATIVE CONCLUSIONS BASED ON THE STATISTICAL DATA GENERATED BY
   THE DORMS SYSTEM MUST

BE ACCOMPANIED BY EVIDENCE GATHERED BY OTHER EVALUATIVE TECHNIQUES
I.E. OBSERVATION OF

EMPLOYEE BEHAVIOR. THIS OTHER EVIDENCE MUST BE SUFFICIENT TO LEAVE
NO REASONABLE DOUBT THAT

THE STATISTICAL DATA DOES INDEED REPRESENT INEFFICIENT OR IMPROPER
ACTIVITY BY THE EMPLOYEE.

UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, /1/ THE AUTHORITY MAKES THE FOLLOWING
DETERMINATIONS.

THE RECORD INDICATES THAT THE DISPUTED PROPOSALS WERE SUBMITTED BY
THE UNION IN RESPONSE TO THE AGENCY'S NOTICE OF INTENT TO INITIATE A
TWO-YEAR TEST OF A WORK MEASUREMENT SYSTEM (DORMS) UNDER WHICH
EMPLOYEES
ARE REQUIRED TO RECORD THE NUMBER OF HOURS DEVOTED TO A SPECIFIC
PROJECT; AND TO INSTALL A NEW SOFTWARE SYSTEM (ROCKWELL-COLLINS) WHICH
IS CAPABLE OF GATHERING CERTAIN DATA WITH RESPECT TO THE EMPLOYEES'
PERFORMANCE OF WORK-RELATED TELEPHONE COMMUNICATIONS.

IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
BUREAU OF THE PUBLIC DEBT, 3 FLRA 768(1980), APPEAL DOCKETED, NO.
80-1895 (D.C. CIR. AUG. 4, 1980), THE AUTHORITY FOUND THAT THE RIGHTS TO
DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106(A) OF THE STATUTE
INCLUDE THE AUTHORITY TO ESTABLISH CRITICAL ELEMENTS AND PERFORMANCE
STANDARDS. HOWEVER, AS THE AUTHORITY HAS CONSISTENTLY EMPHASIZED, AN
AGENCY HAS A DUTY TO BARGAIN UNDER SECTION 7106(B)(2) ON THE
"PROCEDURES" WHICH MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING
SECTION 7106(A) RIGHTS EXCEPT TO THE EXTENT THAT THE AGENCY WOULD BE
PREVENTED FROM ACTING AT ALL. SEE, E.G., AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE
SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA 152(1979),
ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981). ACCORDINGLY, TO THE EXTENT
CONSISTENT WITH LAW AND REGULATION, THE PROCEDURAL CONTEXT OF
PERFORMANCE EVALUATION IS SUBJECT TO BARGAINING. BUREAU OF THE PUBLIC
DEBT, SUPRA, AT 12 OF DECISION. SEE ALSO NATIONAL TREASURY EMPLOYEES
UNION AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, 7 FLRA
NO. 35(1981).

IN THE INSTANT CASE, THE AUTHORITY CONCLUDES THAT THE DISPUTED
PROPOSALS CONSTITUTE NEGOTIABLE PROCEDURES RELATED TO PERFORMANCE
EVALUATION. THUS, CONTRARY TO THE AGENCY'S CONTENTIONS, THE LANGUAGE OF
THE UNION'S PROPOSALS WOULD NEITHER PRECLUDE MANAGEMENT FROM USING THE
STATISTICAL DATA COLLECTED BY THE DORMS AND ROCKWELL-COLLINS SYSTEM NOR
INTERFERE WITH MANAGEMENT'S RIGHT TO TAKE PERSONNEL ACTIONS BASED ON
SUCH STATISTICAL DATA NOR INTERFERE IN ANY OTHER MANNER WITH
MANAGEMENT'S RIGHTS UNDER THE STATUTE. RATHER, CONSISTENT WITH THE
UNION'S DECLARED INTENT, THE DISPUTED PROPOSALS WOULD MERELY REQUIRE THE
AGENCY TO CONFIRM BY PERSONAL OBSERVATION THE VALIDITY OF THE
STATISTICAL DATA TO BE USED IN EVALUATING THE PERFORMANCE OF UNIT
EMPLOYEES ACCORDING TO THE CRITICAL ELEMENTS AND PERFORMANCE STANDARDS
PREVIOUSLY ESTABLISHED BY THE AGENCY. IN THIS REGARD, THE UNION STATES
AND THE AUTHORITY FINDS THAT THE PROPOSAL "DOES NOT SEEK TO MODIFY OR
CLARIFY THE QUANTUM OF PROOF THAT IS REQUIRED IN ADVERSE ACTIONS,
UNACCEPTABLE PERFORMANCE ACTIONS (5 U.S.C. 7701(C)) OR ANY OTHER
PERSONNEL ACTION." THEREFORE, THE PROPOSALS ARE WITHIN THE DUTY TO
BARGAIN.

ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL
UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
CONCERNING THE UNION PROPOSALS. /2/

ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ THE AGENCY'S REQUEST TO FILE A SUPPLEMENT TO ITS STATEMENT OF
POSITION IS DENIED PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES
AND REGULATIONS (5 CFR 2424.8). THEREFORE, THE AUTHORITY HAS NOT
CONSIDERED SUCH SUPPLEMENT.

/2/ IN DECIDING THAT THE SUBJECT PROPOSALS ARE WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THEIR MERITS.