Internal Revenue Service, Brookhaven Service Center and National Treasury Employees Union, Chapter 99 (Authority decision, May 30, 1984)

Final FLRA decision. The Authority dismissed an unfair labor practice complaint concerning the service center's refusal to bargain over a performance expectation proposal. An aggrieved person may seek judicial review of a final Authority order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The IRS Brookhaven Service Center proposed staged performance expectations for seasonal data transcribers and bargained with NTEU Chapter 99 over some changes. The union proposed longer periods before employees would be expected to reach 80, 90, and 100 percent of average performance. The Authority found that the proposal would set different output levels and constrain management's rights to direct employees and assign work. It held the proposal outside the duty to bargain and dismissed the complaint over the IRS's refusal to negotiate it and its implementation of the changes. The case came directly to the Authority on a stipulated record, without a judge's decision under review.

Decision snapshot

• Authority: Management rights under 5 U.S.C. § 7106(a)(2).
• Outcome: Unfair labor practice complaint dismissed on the merits.
• Key point: The union's proposed timetable would prescribe employee performance levels reserved to management.

Full text (FLRA public release)

[ v14 p766 ]

14:0766(102)CA

The decision of the Authority follows:

14 FLRA No. 102

INTERNAL REVENUE SERVICE AND
BROOKHAVEN SERVICE CENTER
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
AND NTEU, CHAPTER 99
Charging Party

Case No. 2-CA-808

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record in this case, including the parties' stipulation of facts, accompanying exhibits and contentions of the parties, the Authority finds:

The complaint alleges that the Respondent, Internal Revenue Service and Brookhaven Service Center, violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ by failing and refusing to bargain with the National Treasury Employees Union and NTEU, Chapter 99 (the Union) concerning certain changes in conditions of employment and by unilaterally implementing such changes.

The Respondent notified the Union of its proposed changes in performance expectations for data transcribers in the Data Conversion Branch. Subsequently, the Union proffered proposals on the changes for bargaining. The parties bargained and were able to reach agreement on certain matters. The Respondent refused to bargain concerning one of the Union's proposals, asserting that the proposal was outside the duty to bargain. Respondent implemented the changes approximately two weeks later while refusing to bargain on the disputed proposal.

The sole issue in this case is whether the Respondent properly refused to bargain concerning the proposal on the basis that it was outside the duty to bargain. In this regard, the changes proposed by the Respondent pertained to "performance expectations" for data transcribers, who were employed by the Respondent in measured, data processing work on a seasonal basis. The Respondent had developed measures of average performance for the transcribers by the type of their work and their grade levels, which included estimates of quantity of output and error rates. It planned to expect performance rates from individual transcribers from the beginning of their seasonal employment as follows: after the first week of employment a transcriber would be expected to perform at 80 percent of the average; after the second week the expectation level would be 90 percent of the average; and after the third week a transcriber would be expected to reach 100 percent of the average. A transcriber who did not reach these levels in the allotted time would risk not being retained. Success would improve a transcriber's opportunity for promotion.

The Union's proposal would have changed the time frames for these expectations, as follows: eighty (80) percent of average performance would be expected after 16 weeks; ninety (90) percent would be expected after 20 weeks; and one hundred (100) percent would be expected after 24 weeks. The Respondent contends that the practical effect of the proposal is to set the quantity and quality of output it can expect from its employees and that, as such, the proposal conflicts with its rights "to direct" and "assign work" to employees under section 7106(a)(2)(A) and (B) of the Statute. /2/ The Authority agrees.

By setting performance levels for employees which differ from the levels that the Respondent planned to implement, the disputed proposal has the same effect as the proposal held to conflict with the rights "to direct" employees and "assign work" to employees under section 7106(a)(2)(A) and (B) of the Statute in National Treasury Employees Union and NTEU, Chapter 27 and Internal Revenue Service, Austin Service Center, 11 FLRA No. 58 (1983), citing National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982). See also American Federation of Government Employees, AFL-CIO, Local 1923 and Department of Health and Human Services, Social Security Administration, 12 FLRA No. 6 (1983), wherein the Authority held that proposals which would require negotiation on the quantity and timeliness of employees' work product conflicted with section 7106(a)(2)(A) and (B) of the Statute. Based on Austin Service Center, Bureau of the Public Debt, and Department of Health and Human Services, supra, and for the reasons stated therein, the disputed proposal in the instant case is outside the duty to bargain. Accordingly, it cannot be concluded that the Respondent violated section 7116(a)(1) and (5) by failing and refusing to negotiate concerning the Union's proposal and by implementing the changes.

ORDER

IT IS ORDERED that the complaint in Case No. 2-CA-808 be, and it hereby is, dismissed.

Issued, Washington, D.C., May 30, 1984

Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ Section 7116(a)(1) and (5) of the Statute provides:

Sec. 7116. Unfair labor practices

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency--

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

. . . .

(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.)

/2/ Section 7106(a)(2)(A) and (B) of the Statute provides:

Sec. 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;

(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted(.)