NTEU Chapter 91 and IRS Southwest Region (Authority decision, August 12, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on a negotiability petition. 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 that absence of a particular review form establish a presumption about employee performance, and that appeals officers could elect to cancel or reconstruct past personnel actions. The Authority found that the first proposal restricted management's evaluation of work and the second interfered with management decisions on personnel actions. It dismissed the petition.

Decision snapshot

• Authority: Management rights under 5 U.S.C. § 7106(a)(2).
• Outcome: Both proposals outside the duty to bargain; petition dismissed.
• Key point: A missing form could not prevent management from evaluating performance.

Full text (FLRA public release)

[ v19 p647 ]

19:0647(82)NG

The decision of the Authority follows:

19 FLRA No. 82

NATIONAL TREASURY EMPLOYEES
UNION AND NTEU CHAPTER 91
Union

and

DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
SOUTHWEST REGION
Agency

Case No. O-NG-632

DECISION AND ORDER ON NEGOTIABILITY ISSUES

The petition for review in this case comes before 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 two Union proposals. /1/

Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations.
/2/ The dispute herein arose in the context of negotiations being conducted as a result of a bargaining order issued by the Authority. The Authority found that the Agency had engaged in an unfair labor practice by changing the system of evaluating the work performance of certain employees without affording the Union the opportunity to negotiate over procedures to be used in implementing the changes and on the impact of the changes on adversely affected employees. Department of the Treasury, Internal Revenue Service (IRS), Southwest Region, 1 FLRA 612 (1979).

Union Proposal 1

Where a Form 211 is not generated, it is inferred that performance on the particular work unit was not reviewed or that performance was not commendatory or critical conclusions reached.

The record indicates that actions relating to supervisory monitoring and review of "work units" are required under specified circumstances and/or at certain stages of the processing of cases within the Appellate Offices of the Agency. The Form 211 or "Appellate Review Memorandum" is an Agency form utilized in the monitoring and review function. The Form 211 provides for information identifying the case, giving the chronology of certain actions taken in the processing of the case, and indicating the scope and nature of the review. The Form also allows space for comments.

The proposal, by its plain terms, would require that the Form 211 be used when it is concluded that performance was commendatory or warranted criticism. The proposal would attach to the absence of a Form 211 the meaning that either the particular work unit was not reviewed or that the performance thereon warranted neither commendation nor criticism regardless of whether such was, in fact, true. Thus, the agency's ability to make critical or commendatory evaluations of performance on a work unit would be restricted where no comments reflecting such conclusions had been incorporated on a Form 211. This, in the Authority's view, directly interferes with the Agency's right to evaluate employee performance and, hence, its rights pursuant to section 7106(a)(2)(A) and (B) to direct employees and to assign work. See National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981) (Union Proposal VII) (wherein the Authority noted that the rights to direct employees and to assign work would be virtually meaningless if it did not encompass the ability of the agency to evaluate employee performance of assigned duties). Inasmuch as the proposal would effectively place a substantive restriction on the Agency's ability to evaluate employee performance it is not merely procedural in nature. /3/ Thus, contrary to the Union's assertion, the proposal is not a negotiable procedure under section 7106(b)(2) of the Statute. /4/ Lastly, the Union's assertion that Union Proposal 1 is negotiable under section 7106(b)(3) of the Statute must be rejected. In this regard, the Union has not shown, nor is it otherwise apparent, how the proposal concerning use of an appraisal form constitutes an "appropriate arrangement" within the meaning of that section. /5/ Thus, there is no basis for finding Union Proposal 1 negotiable under that section of the Statute.

Based on the foregoing the Authority finds that Union Proposal 1 is not within the duty to bargain. /6/

Union Proposal 2

A.O.'s (Appeals Officers) experiencing personnel actions (including applications for promotions) during the period June 3, 1977, to present may at their option elect to have the action cancelled (if it was adverse to them such as a removal, disciplinary action, a reprimand, the denial of a within grade, etc.) or reconstructed (if it was a promotion action) as applicable. A.O.'s will have 30 calendar days from the effective date of this agreement to register their election with their supervisor.

By its plain terms, Union Proposal 2 would allow employees at their option to have certain personnel actions which were adverse to them cancelled. By providing that personnel actions which had previously been effected against employees be cancelled purely at the request of the employee, Union Proposal 2 conflicts with the Agency's authority under section 7106(a)(2) to take various actions, e.g., to suspend, to remove or to take other disciplinary action against employees. In this regard, by allowing employees the option of having personnel actions, which were implemented in accordance with applicable laws, cancelled, the proposal effectively negates the Agency's authority with respect to the exercise of substantive management rights. That the proposal would permit the Agency to attempt to rerun the personnel action after it has been cancelled, as the Union asserts, does not alter the fact that the proposal directly interferes with the exercise of a reserved substantive right. The possible ability of the Agency to reconstitute an action does not change the fact of the negation of the original action and, thus, the proposal's direct substantive repercussions. /7/ Based on these reasons, the Authority finds that Union Proposal 2 is not within the duty to bargain. /8/ Cf. International Organization of Masters, Mates and Pilots and Panama Canal Commission, 11 FLRA 115 (1983) (Union Provisions 4 and 6) (wherein the Authority found that because the provisions would have limited the agency's ability to assign work to employees who had volunteered for such duty interfered with the agency's right to assign work under section7106(a)(2)(B)).

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed.

Issued, Washington, D.C., August 12, 1985

Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ The petition as originally filed requested review as to 6 Union proposals. Subsequently, the Union withdrew its request as to 4 of its proposals. Therefore, those proposals will not be considered further herein.

/2/ The Agency's motion to dismiss the petition for review with respect to Union Proposal 1 on the basis that the Union failed to comply with the requirement in section 2424.4(a)(2) of the Authority's Rules and Regulations that the petition for review include a statement of the meaning attributed to the proposal is denied. The Union did, upon request of the Authority, file such a statement asserting that the proposal represented written confirmation of statements made at the bargaining table by one of the Agency's representatives. Inasmuch as the Authority's disposition of that proposal is based on the plain terms of the proposal, it does not appear that the Agency's position was prejudiced by the manner of the Union's compliance.

/3/ See American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140, 1152 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982).

/4/ Section 7106(b) of the Statute provides, in relevant part:

Sec. 7106. Management rights

. . . .

(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; or

(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.

/5/ Id.

/6/ In view of this disposition it is unnecessary to address the Agency's other contentions as to the negotiability of this proposal.

/7/ The Authority notes that the Agency asserts that in some instances, because of passage of time, it would lack the records necessary to rerun a particular action. Thus, in addition to negating the Agency's original exercise of reserved authority, the proposal could effectively present the Agency from ever being able to take a particular action. See National Federation of Federal Employees, Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of Interior, 17 FLRA No. 45 (1985) (Union Proposal 2).

/8/ In view of this disposition, it is unnecessary to address the other contentions of the Agency as to the negotiability of the proposal.