National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District Office (Authority decision, August 23, 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 6 and the IRS New Orleans District negotiated procedures for revenue officers to request permission to perform duties from their homes. The agency disapproved portions requiring managers to consider general criteria and act fairly when granting, denying, continuing, or withdrawing permission. The Authority found these were procedures for exercising management discretion and did not prevent managers from acting or require them to grant requests. It set aside the agency's nonnegotiability allegation. The ruling did not require the IRS to maintain a home-work program or approve any particular request.

Decision snapshot

• Authority: 5 U.S.C. §§ 7106(a), 7106(b)(2), and 7114(c).
• Outcome: Agency disapproval set aside; disputed procedures within the duty to bargain.
• Key point: General, nonexclusive criteria for considering home-work requests did not override management's decision-making rights.

Full text (FLRA public release)

[ v01 p897 ]

01:0897(102)NG

The decision of the Authority follows:

1 FLRA No. 102

NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 6
(Union)

and

INTERNAL REVENUE SERVICE,
NEW ORLEANS DISTRICT OFFICE
(Activity)

Case No. 0-NG-9

DECISION ON NEGOTIABILITY ISSUE

PROVISION /1/

A. R.O.'S (REVENUE OFFICERS) MAY REQUEST DAILY OR CONTINUOUS
PERMISSION TO WORK IN/OUT OF

THEIR RESIDENCES.

B. BASED UPON A REVENUE OFFICER'S REQUEST AND THE REASONS PRESENTED,
THE EMPLOYER WILL

CONSIDER THE FOLLOWING CRITERIA IN EXERCISING THE AUTHORITY TO GRANT
OR DENY THE REQUEST:

1. THE REASONABLENESS OF THE REQUEST;

2. THE WORKABILITY OF THE REQUEST; AND

3. THE EFFECT OF THE REQUEST UPON THE EFFICIENCY OF THE SERVICE.

C. THE EMPLOYER AGREES THAT ALL DETERMINATIONS WILL BE MADE IN A
FAIR, OBJECTIVE AND

EQUITABLE MANNER.

D. UPON THE EMPLOYEE'S REQUEST, THE MANAGER WILL IDENTIFY AND
DISCUSS THE REASON(S) UPON

WHICH THE DENIAL IS BASED.

E. CONTINUOUS PERMISSION, ONCE GRANTED, MAY BE SUBJECT TO PERIODIC
REVIEW BY THE GROUP

MANAGER AND MAY BE WITHDRAWN UPON A NEW, CONTRARY DETERMINATION OF
THE CRITERIA CONTAINED IN

"B" ABOVE.

F. THE PARTIES AGREE THAT THIS IS A LOCAL SUPPLEMENTAL AGREEMENT,
AND IT SUPPLEMENTS

MDA-3.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE DISPUTED PROVISION OF THE PARTIES'
LOCALLY NEGOTIATED AGREEMENT VIOLATES SECTION 7106(A) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS (FSLMR) STATUTE, AS ALLEGED GENERALLY
BY THE AGENCY. /2/

OPINION

CONCLUSION: THE PROVISION DOES NOT VIOLATE SECTION 7106 OF THE FSLMR
STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S
RULES AND REGULATIONS (44 FED.REG. 44740 ET SEQ. (1979)), THE AGENCY'S
ALLEGATION THAT THE DISPUTED PROVISION IS NOT WITHIN THE DUTY TO BARGAIN
BECAUSE IT VIOLATES THAT SECTION OF THE STATUTE IS SET ASIDE. /3/

REASONS: THE RECORD BEFORE THE AUTHORITY INDICATES THAT MANAGEMENT'S
PRACTICE IN THE BARGAINING UNIT INVOLVED IS TO GRANT EMPLOYEES' REQUESTS
TO WORK FROM THEIR HOMES UNDER CERTAIN CIRCUMSTANCES. /4/ THE UNION
ARGUES THAT THE PROVISION DISPUTED IN THE INSTANT CASE IS WITHIN THE
DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE /5/ SINCE IT
CONSTITUTES MERELY THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN
EXERCISING ITS RETAINED RIGHTS IN CONNECTION WITH THE PRACTICE OF
SOMETIMES ALLOWING AN EMPLOYEE TO WORK FROM HIS OR HER HOME. THE
AGENCY, AS INDICATED, CONTENDS THAT THE PROVISION VIOLATES MANAGEMENT'S
RIGHTS UNDER SECTION 7106(A) OF THE STATUTE. /6/

SECTION 7106 OF THE STATUTE SPECIFIED, IN SUBSECTION (A), VARIOUS
RIGHTS RESERVED TO AGENCY MANAGEMENT. /7/ SUBSECTION (B), HOWEVER,
PROVIDES THAT MANAGEMENT'S EXERCISE OF ANY RIGHTS CONTAINED IN
SUBSECTION (A) DOES NOT PRECLUDE NEGOTIATIONS ON THE PROCEDURES WHICH
MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING THOSE RIGHTS. /8/ THE
LEGISLATIVE HISTORY OF THE STATUTE REFLECTS THE INTENT, IN REGARD TO THE
DUTY TO BARGAIN ON THE PROCEDURES MANAGEMENT WILL OBSERVE IN EXERCISING
ANY RESERVED RIGHTS UNDER THE STATUTE, TO AUTHORIZE UNIONS TO NEGOTIATE
FULLY ON SUCH PROCEDURES, UNLESS SUCH NEGOTIATIONS WOULD PREVENT THE
AGENCY FROM ACTING AT ALL. /9/

TURNING TO THE DISPUTED PROVISION, IT PRINCIPALLY RELATES, AS A
WHOLE, TO AGENCY MANAGEMENT'S GRANTING OR DENYING THE REQUEST OF
INDIVIDUAL MEMBERS OF THE BARGAINING UNIT (REVENUE OFFICERS) TO WORK
"IN/OUT OF THEIR RESIDENCES." SECTION A WHICH IS NOT IN DISPUTE MERELY
REFLECTS THE EXISTENCE OF THE AGENCY'S PRACTICE TO CONSIDER SUCH
REQUESTS. (AS NOTED BEFORE, THE UNION TACITLY CONCEDES THAT THE
EXISTENCE AND CONTINUATION OF THIS PRACTICE IS A MATTER SOLELY RESERVED
TO MANAGEMENT'S DISCRETION.) SECTIONS B, C, AND E, DISPUTED HEREIN,
DELINEATE THE PROCEDURES WHICH MANAGEMENT WILL FOLLOW WHEN CONSIDERING
SUCH REQUESTS. IN THIS REGARD, SECTION B ESTABLISHES "REASONABLENESS,"
"WORKABILITY" AND "EFFECT OF THE REQUEST UPON THE EFFICIENCY OF THE
SERVICE" AS CRITERIA WHICH MANAGEMENT MUST CONSIDER IN EXERCISING ITS
AUTHORITY TO GRANT OR DENY A REQUEST. THESE CRITERIA (WHICH
DERIVATIVELY APPLY ALSO UNDER SECTION E) ARE VERY GENERAL AND ARE NOT
EXCLUSIVE: THE LANGUAGE OF THE PROVISION DOES NOT SPECIFY THEIR
EXCLUSIVITY AND, FURTHERMORE, THE UNION UNEQUIVOCALLY STATES IN THE
RECORD BEFORE THE AUTHORITY THAT THEY ARE NOT EXCLUSIVE BUT ARE TO BE
APPLIED BY THE RESPONSIBLE MANAGEMENT OFFICIAL "AMONG ANY OTHER CRITERIA
HE OR SHE WISHES TO CONSIDER." SECTION C MERELY ESTABLISHES A GENERAL
STANDARD FOR MANAGEMENT'S DETERMINATIONS WITH REGARD TO EMPLOYEE
REQUESTS: THAT THEY BE FAIR, OBJECTIVE AND EQUITABLE. SECTION E MAKES
THE NONEXCLUSIVE CRITERIA FOR GRANTING OR DENYING REQUESTS, MENTIONED
ABOVE, APPLICABLE ALSO TO EXERCISES OF MANAGEMENT DECISIONAL AUTHORITY
TO CONTINUE OR WITHDRAW PERMISSION, PREVIOUSLY GRANTED, FOR AN EMPLOYEE
TO WORK FROM HIS OR HER RESIDENCE.

IT IS PLAIN FROM THE LANGUAGE OF SECTIONS B, C, AND E OF THE
PROVISION AND FROM THE UNION'S CLEAR STATEMENT TO THE AUTHORITY
REGARDING THE NONEXCLUSIVITY OF THE CRITERIA ESTABLISHED IN SECTION B,
THAT THESE SECTIONS SOLELY ARE CONCERNED WITH THE PROCEDURES WHICH
MANAGEMENT WILL OBSERVE IN DETERMINING WHETHER TO GRANT, DENY OR, HAVING
ONCE GRANTED, TO CONTINUE OR WITHDRAW PERMISSION FOR A BARGAINING UNIT
MEMBER TO WORK FROM HIS OR HER HOME IN ACCORDANCE WITH EXISTING AGENCY
PRACTICE. FURTHERMORE, THERE IS NO SHOWING THAT THESE PROCEDURES WILL
PREVENT MANAGEMENT FROM ACTING AT ALL ON EMPLOYEES' REQUEST FOR SUCH
PERMISSION. ACCORDINGLY, THE PROCEDURES IN QUESTION ARE WITHIN THE DUTY
TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE /10/ AND THE AGENCY'S
ALLEGATION TO THE CONTRARY MUST BE SET ASIDE.

FINALLY, SECTION F OF THE PROVISION STATES THAT "THE PARTIES AGREE
THAT THIS IS A LOCAL AGREEMENT SUPPLEMENTING 'MDA-3'" (APPARENTLY
ADVERTING TO AN AGREEMENT BETWEEN THE PARTIES AT A HIGHER LEVEL). THE
AGENCY PROVIDES NO SUPPORT OR EXPLANATION FOR ITS ALLEGATION THAT
SECTION F OF THE PROVISION VIOLATES SECTION 7106 OF THE STATUTE AND NO
VIOLATION IS OTHERWISE APPARENT FROM THE RECORD IN THIS CASE.
ACCORDINGLY THE ALLEGATION OF THE AGENCY THAT SECTION F OF THE PROVISION
IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE IT VIOLATES SECTION 7106 OF
THE STATUTE MUST BE SET ASIDE.

ISSUED, WASHINGTON, D.C., AUGUST 23, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ THE PARTIES NEGOTIATED THE DISPUTED PROVISION AS PART OF THEIR
LOCAL COLLECTIVE BARGAINING AGREEMENT. DURING THE REVIEW PROCESS
PURSUANT TO SECTION 7114(C) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (92 STAT. 1203), THE AGENCY DISAPPROVED THE
UNDERSCORED PORTIONS OF THE PROVISION. SECTION 7114(C) PROVIDES THAT:

(C)(1) AN AGREEMENT BETWEEN ANY AGENCY AND AN EXCLUSIVE
REPRESENTATIVE SHALL BE SUBJECT TO

APPROVAL BY THE HEAD OF THE AGENCY.

(2) THE HEAD OF THE AGENCY SHALL APPROVE THE AGREEMENT WITHIN 30 DAYS
FROM THE DATE THE

AGREEMENT IS EXECUTED IF THE AGREEMENT IS IN ACCORDANCE WITH THE
PROVISIONS OF THIS CHAPTER

AND ANY OTHER APPLICABLE LAW, RULE, OR REGULATION (UNLESS THE AGENCY
HAS GRANTED AN EXCEPTION

TO THE PROVISION).

(3) IF THE HEAD OF THE AGENCY DOES NOT APPROVE OR DISAPPROVE THE
AGREEMENT WITHIN THE

30-DAY PERIOD, THE AGREEMENT SHALL TAKE EFFECT AND SHALL BE BINDING
ON THE AGENCY AND THE

EXCLUSIVE REPRESENTATIVE SUBJECT TO THE PROVISIONS OF THIS CHAPTER
AND ANY OTHER APPLICABLE

LAW, RULES, OR REGULATIONS.

(4) A LOCAL AGREEMENT SUBJECT TO A NATIONAL OR OTHER CONTROLLING

AGREEMENT AT A HIGHER LEVEL SHALL BE APPROVED UNDER THE PROCEDURES OF
THE CONTROLLING

AGREEMENT, OR, IF NONE, UNDER REGULATIONS PRESCRIBED BY THE AGENCY.

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

SECTION 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--

(1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
EMPLOYEES, AND INTERNAL

SECURITY PRACTICES OF THE AGENCY; AND--

(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;

(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO

DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED.

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

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

(II) ANY OTHER APPROPRIATE SOURCE; AND

(D) TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO CARRY OUT THE AGENCY
MISSION DURING

EMERGENCIES.

/3/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGEMENT AS TO THE MERITS OF THE
PROPOSAL.

/4/ THE FOLLOWING "MEMORANDUM OF PRACTICE" WAS PROVIDED TO THE UNION
BY THE CHIEF, COLLECTION DIVISION, NEW ORLEANS DISTRICT:

SUBJECT: PRACTICE WITH RESPECT TO REVENUE OFFICERS PERFORMING
OFFICIAL DUTIES AT THEIR

RESIDENCE

FOR LIMITED AND EXTENDED PERIODS OF TIME, EMPLOYEES WILL BE ALLOWED,
UPON REQUEST, TO WORK

FROM THEIR HOMES WHEN THEY CAN PROVIDE ADEQUATE EVIDENCE THAT IT WILL
IN THE BEST INTEREST OF

THE SERVICE. GROUP MANAGERS WILL GRANT THEIR APPROVAL TO INDIVIDUAL
REVENUE OFFICERS BASED ON

THE EFFICIENCY OF THE PRACTICE, WITH DUE CONSIDERATION FOR
DISCLOSURE, THE PUBLIC IMAGE OF THE

SERVICE, THE POTENTIAL FOR ABUSE, AND OTHER FACTORS.

THE BURDEN OF PROOF WILL REMAIN WITH THE EMPLOYEE, AND GROUP
MANAGEMENT WILL RETAIN THE

RIGHT TO DENY OR WITHDRAW SUCH PERMISSION WHENEVER IT IS DEEMED
NECESSARY.

/5/ SECTION 7106TB)(2) OF THE STATUTE PROVIDES AS FOLLOWS:

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

NEGOTIATING--

. . . .

(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY

AUTHORITY UNDER THIS SECTION(.)

/6/ NOTE 2, SUPRA. MANAGEMENT DID NOT SUBMIT A STATEMENT OF ITS
POSITION SETTING FORTH ARGUMENTS IN SUPPORT OF THIS GENERAL ALLEGATION.

/7/ NOTE 2, SUPRA. THE UNION TACITLY CONCEDES THAT THESE RIGHTS
ENCOMPASS DETERMINING WHETHER TO ALLOW AN EMPLOYEE TO WORK FROM HIS OR
HER HOME.

/8/ NOTE 5, SUPRA.

/9/ IN THIS REGARD, THE JOINT EXPLANATORY STATEMENT OF THE COMMITTEE
ON CONFERENCE STATED IN THE CONFERENCE REPORT WHICH ACCOMPANIED THE BILL
WHICH WAS ENACTED AND SIGNED INTO LAW, AS FOLLOWS:

3. SENATE SECTION 7218(B) PROVIDES THAT NEGOTIATIONS ON PROCEDURES
   GOVERNING THE EXER(ISE

OF AUTHORITY RESERVED TO MANAGEMENT SHALL NOT UNREASONABLY DELAY THE
EXERCISE BY MANAGEMENT OF

ITS AUTHORITY TO ACT ON SUCH MATTERS. ANY NEGOTIATIONS ON PROCEDURES
GOVERNING MATTERS

OTHERWISE RESERVED TO AGENCY DISCRETION BY SUBSECTION (A) MAY NOT
HAVE THE EFFECT OF ACTUALLY

NEGATING THE AUTHORITY AS RESERVED TO THE AGENCY BY SUBSECTION (A).
THERE ARE NO COMPARABLE

HOUSE PROVISIONS.

THE CONFERENCE REPORT DELETES THESE PROVISIONS. HOWEVER, THE
CONFEREES WISH TO EMPHASIZE

THAT NEGOTIATIONS ON SUCH PROCEDURES SHOULD NOT BE CONDUCTED IN A WAY
THAT PREVENTS THE AGENCY

FROM ACTING AT ALL, OR IN A WAY THAT PREVENTS THE EXCLUSIVE
REPRESENTATIVE FROM NEGOTIATING

FULLY ON PROCEDURES . . .

S. REP NO. 95-1272, 95TH CONG., 2D SESS. 158(1978).

THUS, THE CONFERENCE COMMITTEE, IN APPROVING SECTION 7106(B)(2) OF
THE STATUTE DID NOT ADOPT THE LANGUAGE IN THE SENATE BILL (S. 2640)
WHICH PROVIDED AS FOLLOWS:

SECTION 7218. BASIC PROVISIONS OF AGREEMENTS

. . . .

(B) NOTHING IN SUBSECTION (A) OF THIS SECTION SHALL PRECLUDE THE
PARTIES FROM NEGOTIATING--

(1) PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EXERCISING ITS
AUTHORITY TO DECIDE OR ACT

IN MATTERS RESERVED UNDER SUCH SUBSECTION; OR

(2) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
IMPACT OF MANAGEMENT'S

EXERCISING ITS AUTHORITY TO DECIDE OR ACT IN MATTERS RESERVED UNDER
SUCH SUBSECTION,

EXCEPT THAT SUCH NEGOTIATIONS SHALL NOT UNREASONABLY DELAY THE
EXERCISE BY MANAGEMENT OF ITS AUTHORITY TO DECIDE OR ACT, AND SUCH
PROCEDURES AND ARRANGEMENTS SHALL BE CONSISTENT WITH THE PROVISIONS OF
ANY LAW OR REGULATION DESCRIBED IN 7215(C) OF THIS TITLE, AND SHALL NOT
HAVE THE EFFECT OF NEGATING THE AUTHORITY RESERVED UNDER SUBSECTION (A).

/10/ NOTE 5, SUPRA.