[ v41 p795 ]
41:0795(72)NG
The decision of the Authority follows:
41 FLRA No. 72
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
By its Order of January 17, 1990, the United States Court of Appeals for the Fourth Circuit granted the Agency's motion for summary reversal and remand of the Authority's initial decisions in these cases based on the court's decision in Department of Defense, Office of Dependents Schools v. FLRA, 879 F.2d 1220 (4th Cir. 1989) (DODDS). Consequently, the cases are again before us.
These cases concern the negotiability of 18 provisions that were awarded by an interest arbitrator and were disapproved by the Agency head under section 7114(c) of the Federal Service Labor-Management Relations Statute (the Statute).
For the reasons that follow, we conclude, as to certain procedural issues that are raised, that the petitions in these cases are properly before us. We conclude that Provision 1 is nonnegotiable because it directly interferes with management's right to take whatever actions may be necessary to carry out the agency mission during emergencies under section 7106(a)(2)(D). Provisions 2 and 3, which provide for a "retraining" period for certain Union officials who are returning to their regular duties on a full-time basis, are nonnegotiable because they excessively interfere with management's rights to direct employees and assign work.
The first sentence of Provision 4, which concerns the use of evaluation panels in filling vacancies, is not in dispute and is negotiable. The second sentence of Provision 4 is nonnegotiable because it directly interferes with management's right to assign work. Provisions 5, 6, and 7, which concern providing information to employees, are not inconsistent with the Privacy Act and are negotiable. Provision 8, which relates to providing evidence to employees against whom an adverse or disciplinary action is proposed, does not directly interfere with management's right to assign work as claimed by the Agency and is negotiable. Provision 9, which concerns making witnesses, on whom the Agency is relying to support an adverse or disciplinary action, available for questioning by, or on behalf of, the subject of the action, is not inconsistent with section 7102 of the Statute and is negotiable.
Provision 10, which relates to advance notice of proposed adverse actions, excessively interferes with management's rights to take disciplinary action and remove employees and is nonnegotiable. Provision 11, which concerns the assignment of offices to employees who smoke, does not interfere with management's rights to assign and direct employees and is negotiable. Provision 12 concerns workplace security and access. The first sentence is not in dispute and is negotiable. The second and third sentences, which directly interfere with management's right to determine its internal security practices, are, nevertheless, negotiable as appropriate arrangements under section 7106(b)(3). Provision 13, which is merely a statement of existing past practice and does not bind the Agency to continue any practice, is negotiable. Provision 14, which concerns sick leave, is nonnegotiable because it is inconsistent with a Government-wide regulation, 5 C.F.R. § 630.401. Provisions 15 and 16, which relate to reduction-in-force (RIF) actions, are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute. Provision 17, which concerns the effective date of the parties' agreement, is inconsistent with section 7114(c) of the Statute and is nonnegotiable. Provision 18, which relates to the circumstances under which employees must report to their supervisors when leaving their work area, directly interferes with management's rights to direct employees and assign work and is nonnegotiable.
II. Background and Procedural Issues
Two procedural issues are raised in these cases. The first is whether the provisions of the interest arbitrator's award are subject to agency head approval under section 7114(c) of the Statute. For the reasons set forth below, we conclude that they are. This conclusion leads to a second procedural issue that relates to the Union's assertion that the Agency head's disapproval was untimely with respect to many of the provisions that are included in these petitions.
A. Agency Head Review of Interest Arbitration Awards
In the initial decisions in these cases, the Authority dismissed the negotiability appeals, relying on Authority precedent holding that section 7114(c) of the Statute does not empower agency heads to review provisions that are directed to be included in an agreement as a result of an interest arbitration award. 28 FLRA at 4; 28 FLRA at 8. Consequently, the Authority concluded that the agency head disapproval in these cases did not serve as an allegation of nonnegotiability from which the Union could file a petition for review. The Authority's position concerning agency head review of provisions imposed by an interest arbitrator was subsequently rejected by the court in DODDS, 879 F.2d 1220. In U.S. Department of Justice and Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 1346 (1990) (INS), petition for review filed as to other matters sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 90-1613 (D.C. Cir. Dec. 27, 1990), we announced that we would no longer adhere to the previous statutory interpretation. Rather, we announced that we would find that where the Federal Service Impasses Panel (the Panel) directs parties to interest arbitration under section 7119(b)(1) of the Statute, the agency head retains the right under section 7114(c) to review any provisions imposed. INS at 1358.
In U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3 (1991) (Bureau of Reclamation), we held that where parties voluntarily enter into interest arbitration pursuant to section 7119(b)(2) of the Statute, the appropriate mechanism for challenging resulting arbitration awards is through the filing of exceptions under section 7122 of the Statute. 41 FLRA 3 at 8-9. It follows that if both parties agree to arbitration under section 7119(b)(2), the resulting arbitration award is not subject to agency head review under section 7114(c) of the Statute. See Panama Canal Commission v. FLRA, 867 F.2d 905 (5th Cir. 1989).
In reaching our conclusion in Bureau of Reclamation, we stated:
Section 7119(b)(1) and (2) is "decidedly in the disjunctive," however. In particular, although section 7119(b)(2) refers to the parties' agreement to adopt procedures for binding arbitration, interest arbitration resulting from a request for Panel assistance under section 7119(b)(1) is "nonvoluntary[.]" As such, arbitration resulting from requests under section 7119(b)(1) does not constitute "binding arbitration agreed upon by the parties and subject to review under § 7122." [Citations omitted.]
41 FLRA at 7.
Where one or both parties request Panel assistance under section 7119(b)(1), the Panel may recommend to the parties procedures, including arbitration, for the resolution of the impasse. 5 C.F.R. § 2471.6(a)(2). The Panel is also empowered to direct the parties to interest arbitration to resolve their impasse. 5 C.F.R. § 2471.11(a); INS, 37 FLRA at 1356-57.
In our view, insofar as agency head review of the provisions of an interest arbitrator's award is concerned, it makes no difference whether the parties are compelled to refer their dispute to an interest arbitrator pursuant to final action of the Panel under section 2471.11 of the Panel's regulations or enter into interest arbitration pursuant to a recommendation by the Panel under section 2471.6 of the Panel's regulations. Only where it is clear that an agency has agreed voluntarily to binding arbitration does the agency forfeit agency head review under section 7114(c) of the Statute. See DODDS, 879 F.2d at 1224. In electing to have their impasse processed under section 7119(b)(2), the parties clearly and unequivocally volunteer to enter into binding arbitration. Where an agency declines to enter into a joint request under section 7119(b)(2), however, its willingness to submit the dispute to interest arbitration becomes more difficult to ascertain, particularly where it acquiesces to a Panel recommendation that the parties submit their dispute to an interest arbitrator. The question of what such acquiescence signifies in terms of an agency's willingness to enter into binding arbitration of its own free choice and will is highly susceptible to dispute and would necessarily involve issues as to the intent of agency representatives in accepting a Panel recommendation. Thus, a determination of whether interest arbitration entered into pursuant to section 7119(b)(1) was truly voluntary on the part of an agency could be highly problematical.
In view of the availability of a procedure under section 7119(b)(2) where both parties may freely agree to engage in binding arbitration of an impasse, there is no need to interpret section 7119(b)(1) as encompassing voluntary, binding arbitration. See Defense Logistics Agency v. FLRA, 882 F.2d 104, 107 (4th Cir. 1989) (The court found that there was no "agreement 'for binding arbitration'" by virtue of the agency's agreement to a Panel recommendation made in conjunction with an impasse being processed pursuant to section 7119(b)(1). In so finding, the court noted, "If the parties had wanted to engage in binding arbitration they were more than aware of the correct procedure for doing so.") In our view, the only reliable indicator of whether a party's entry into an interest arbitration proceeding to resolve an impasse is voluntary is whether it has utilized the process available under section 7119(b)(2) of the Statute. Consequently, that is the determinative factor that we will use to distinguish voluntary interest arbitration from nonvoluntary interest arbitration.
In sum, where one or both parties elect not to utilize section 7119(b)(2) to resolve a negotiation impasse and the impasse is submitted to the Panel under section 7119(b)(1), any resulting interest arbitrator's award is subject to agency head review under section 7114(c) of the Statute.
We now apply this principle to the present cases. The Union, in a supplemental submission in these cases, suggests that the Agency evidenced an intent to engage in interest arbitration to resolve the parties' negotiation impasse. In support of this claim, the Union submits copies of two forms requesting Panel assistance, which the Agency submitted to the Panel. On the first, dated December 27, 1985, the Agency indicated that it was requesting the Panel to "approve a binding arbitration procedure for resolution of a negotiation impasse." On the second, dated January 23, 1986, which contains the statement "corrected submission of Dec. 27, 1985, as required by FSIP" the Agency indicated that it was requesting the Panel to "consider a negotiation impasse." Clearly, the difference between the two elections is that one invokes procedures governed by section 7119(b)(1) (consider a negotiation impasse) and the other invokes procedures governed by section 7119(b)(2) (approve a binding arbitration procedure). While it may appear that the Agency in its initial request to the Panel indicated that it was seeking to invoke section 7119(b)(2), its subsequent correction changed that designation and sought assistance under section 7119(b)(1) of the Statute. In our view, the existence of the "corrected submission" and the fact that neither the original request nor the "corrected" request indicates that it was a joint labor-management request leads us to conclude that the Agency did not make a binding election to resolve the impasse pursuant to section 7119(b)(2) of the Statute. See 5 C.F.R. § 2471.3(b) (a request for approval of binding arbitration must be jointly filed by the parties).
We conclude that the interest arbitration proceeding that was involved in these cases arose under section 7119(b)(1) and not 7119(b)(2) of the Statute. Based on the precedent set forth above, we conclude that the arbitrator's award was subject to agency head review under section 7114(c) of the Statute.
B. Procedural Issue Relating To Timeliness
To be timely, a petition for review of a negotiability issue filed pursuant to section 7117 of the Statute must meet specified time limits that run from either a written allegation from an agency that the duty to bargain does not extend to the matter proposed or a written request from an exclusive representative to an agency for such an allegation. See section 2424.3 of the Authority's rules and regulations; American Federation of Government Employees, Local 3342 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 36 FLRA 367, 371-73 (1990). An agency head's disapproval of a collective bargaining agreement pursuant to section 7114(c) of the Statute constitutes an agency allegation of nonnegotiability for the purposes of filing a petition for review. For example, Philadelphia Metal Trades Council and Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 33 FLRA 849 (1989). For an agency head's disapproval to constitute an allegation of nonnegotiability for purposes of review under section 7117, it must meet certain requirements. Specifically, it must be in writing and must be served on the union, by certified mail or by personal delivery to the union's designated representative, within 30 days from the date the agreement is executed. See, for example, International Organization of Masters, Mates and Pilots and Panama Canal Commission, 36 FLRA 555, 559-60 (1990) (Panama Canal Commission).
Here, the Union contends that the Agency head's disapproval was untimely as to many of the provisions at issue. The facts underlying this question are as follows. Pursuant to the direction of the Panel, the parties engaged in interest arbitration to resolve the impasse they had reached in negotiation over a new basic agreement. The arbitrator elected to serve his award in several installments, a few articles at a time, over a period extending from April 29, 1986, to June 9, 1986. On April 29, 1986, the arbitrator prevailed upon the parties to implement on May 1, 1986, all of the provisions that he had awarded up to that point. Over the following weeks, the arbitrator continued to issue awards as to further provisions; the last was served by hand on the parties on June 9, 1986.
On June 25, 1986, the Agency filed exceptions to that portion of the award that was served on April 29, 1986. Those exceptions, which were designated Case No. 0-AR-1176, were dismissed as untimely in U.S. Department of Commerce, Patent and Trademark Office (PTO) and Patent Office Professional Association (POPA), 24 FLRA 835 (1986). By memorandum dated May 30, 1986, the Agency notified the Union that pursuant to section 7114(c) of the Statute the Agency head had disapproved certain of the provisions contained in that portion of the arbitrator's award. The Union filed the negotiability petition in Case No. 0-NG-1287 in response to the Agency's May 30, 1986, memorandum.
By memorandum dated and served on the Union on June 26, 1986, the Agency notified the Union that certain of the provisions awarded by the arbitrator during the period extending between May 1 and June 9 had been disapproved. The Union filed the negotiability petition in Case No. 0-NG-1296 in response to the Agency's June 26 memorandum.
The Union contends that the Agency head disapproval that is the subject of Case No. 0-NG-1287 is untimely in whole and that the disapproval that is the subject of Case No. 0-NG-1296 is untimely with respect to all but provisions in articles 12 and 35. In support of this contention, the Union argues that the 30-day time limit for disapproval of a particular provision ran from the date on which that provision was awarded. The Agency, on the other hand, argues that June 9, 1986, the date on which the last installment of the arbitrator's award was issued, should constitute the date of execution for purposes of section 7114(c) agency head review.
Under section 7114(c) of the Statute, an agreement between any agency and an exclusive representative "shall be subject" to approval by the head of the agency. The agency head is required to act within 30 days from the date that the agreement is executed. If the agency head does not approve or disapprove the agreement within the 30-day period, the agreement takes effect automatically on the thirty-first day. See, for example, Federal Employees Metal Trades Council of Charleston and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 35 FLRA 1091, 1093 (1990).
The Authority has held that it is "the agreement," not a portion thereof, that is subject to agency head approval under section 7114(c). For example, U.S. Department of the Army, Watervliet Arsenal, Watervliet, New York, 34 FLRA 98, 105 (1989) (Watervliet Arsenal); Department of the Interior, National Park Service, Colonial National Historical Park, Yorktown, Virginia, 20 FLRA 537, 541 (1985) (Colonial National Historical Park, Yorktown), aff'd sub nom. National Association of Government Employees, Local R4-68 v. FLRA, 802 F.2d 1484 (4th Cir. 1986). Where an agency head timely disapproves an agreement under section 7114(c) of the Statute, the agreement does not take effect and is not binding on the parties. Watervliet Arsenal, 34 FLRA at 105. Of course, parties may agree to implement all portions of the local agreement not specifically disapproved by the agency head. Id.
For the purposes of the agency head review process, we believe that section 7114(c) contemplates that an agreement generally will be treated as an integrated and complete document rather than as a collection of articles and sections. This principle is consistent with the Authority's precedent that "the agreement, not a portion thereof," is subject to agency head approval under section 7114(c). Watervliet Arsenal; Colonial National Historical Park, Yorktown. To hold otherwise would produce chaotic results. That is, if we were to hold that each individual provision was subject separately to the approval process a situation could result where some portions of the same agreement were approved, some were disapproved, and some went into effect automatically based on an agency's failure to act within the 30-day time limit. Additionally, given the nature of negotiations, it could be very difficult to reliably ascertain the execution date of a particular provision. In this regard, we note that give and take is one of the cornerstones of collective bargaining. Thus, it would not be unusual for parties having reached tentative agreement on a particular provision to reconsider that agreement in efforts to come to an agreement on another provision. Moreover, one segment of an agreement may affect the meaning of another segment. For example, in this case, one of the last articles awarded by the arbitrator related to "definitions." Agency statement of position at 2, Case No. 0-NG-1287. It is not unreasonable to assume that the definitions could affect the meaning of previously awarded articles.
For these reasons we hold that the date of execution that triggers the time limits for agency head review under section 7114(c)(2) relates to the date on which no further action is necessary to finalize a complete agreement, not the dates on which agreement is reached as to individual pieces of that agreement.(1) See Panama Canal Commission, 36 FLRA at 559-62 (in circumstances where an interest arbitrator's decision encompassed the parties' entire agreement, the date of the arbitrator's award constituted the date of execution for purposes of section 7114(c) review); see also American Federation of Government Employees, National Veterans Affairs Council and U.S. Department of Veterans Affairs, Veterans Health Services and Research Administration, Washington, D.C., 40 FLRA 195, 201 (1991) (where the agency did not assert, and there was no other basis in the record on which to conclude, that any further actions were necessary after issuance of a Panel decision for the parties to "execute" the Panel decision, that decision became final and subject to agency head review as of the date it was issued); compare National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois, 39 FLRA 848, 848-49 (1991), petition for review filed as to other matters sub nom. Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois, v. FLRA, No. 91-1194 (D.C. Cir. Apr. 26, 1991) (where the parties engaged in substantive negotiations subsequent to the issuance of an interest arbitrator's award, the issuance of the award did not trigger the 30-day time limit for agency head review under section 7114(c) of the Statute).
Based on the foregoing and the facts of this case, we conclude that the parties' agreement was not executed and ripe for agency head review until June 9, 1986, when the last portion of the interest arbitrator's award was issued.(2)
We further conclude that the Agency head timely disapproved the agreement in these cases. The Authority has previously stated that section 7114(c) of the Statute contemplates that approval or disapproval will occur only after the agreement has been executed. American Federation of Government Employees, AFL-CIO, National Immigration & Naturalization Service Council and U.S. Department of Justice, Immigration & Naturalization Service, 8 FLRA 347, 380-81 (1982), reversed as to other matters sub nom. United States Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983). "Execution" for purposes of section 7114(c) review does not occur until negotiations relating to the agreement being executed are completed. Consequently, based on the circumstances of this case, the Agency head's May 30, 1986, disapproval memorandum, which was based on review of a partially completed agreement, was premature. Based on the June 9 execution date, however, the Agency head's disapproval memorandum that was served on June 26, 1986, was timely and served to disapprove the entire agreement. See Colonial National Historical Park, Yorktown.
As a logical extension of our previous discussion, the Union's petition in Case No. 0-NG-1287, which was based on the May 30 memorandum and predated the June 26 memorandum, would not be properly before us. Under section 7117(c)(2) of the Statute, a petition for review must be filed on or before the 15th day after the date on which the agency involved makes its allegation of nonnegotiability. However, in the circumstances of this case and particularly in view of the unsettled nature of precedent concerning agency head review of provisions contained in an interest arbitrator's award, it would not promote the purposes and policies of the Statute to dismiss the Union's petition in Case No. 0-NG-1287. Consequently, we will treat the Agency's May 30 memorandum as tantamount to an unsolicited allegation of nonnegotiability for purposes of filing a petition for review of a negotiability issue. If treated as such, the Union's petition in Case No. 0-NG-1287, which was filed on June 16, 1986, is properly before us. See, for example, National Federation of Federal Employees, Local 422 and U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency, 34 FLRA 721, 723-24 (1990) (where an agency provides an unsolicited allegation of nonnegotiability, the union has the option of filing an appeal based on that allegation; however, any appeal must meet the time limits established in section 2424.3 of the Authority's regulations). In this regard, the Agency head's May 30, 1986, memorandum appears to have been hand-delivered to the Union. The fifteenth day following delivery was June 14, 1986, which was a Saturday. Consequently, under section 2429.21 of the Authority's rules and regulations, the Union had until close of business on June 16 in which to file an appeal.
C. Summary
The interest arbitration proceeding that was involved in these two cases arose under section 7119(b)(1) of the Statute. Consequently, the provisions of the agreement imposed by the arbitrator were subject to agency head review under section 7114(c) of the Statute.
The agreement was not ripe for agency head review until the arbitrator's entire award had been issued. Therefore, although the agency head's May 30 memorandum was premature for purposes of serving as a disapproval under section 7114(c) of the Statute, the June 26 memorandum served as a timely disapproval of the agreement. We will, however, treat the May 30 memorandum as tantamount to an unsolicited allegation of nonnegotiability for purposes of determining whether the Union's petition in Case No. 0-NG-1287 is properly before us. Treating it as such, the Union's petition is properly before us. We will now proceed to rule on the negotiability of the provisions that are at issue in the Union's petitions in Cases Nos. 0-NG-1287 and 0-NG-1296.(3)
III. Provision 1
Nothing in this Article shall affect the authority of the Office to take actions that are absolutely necessary for the functioning of [the] [A]gency.
A. Positions of the Parties
The Agency contends that Provision 1 is defective because neither the plain language of the provision nor the Union's statement of intent "mention[s] the FLRA standard of 'overriding exigency.'" Agency statement of position in Case No. 0-NG-1287 at 6. In support of its contention that the provision must recognize an "overriding exigency" standard, the Agency cites the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004 (1982) (Proposal 8) (U.S. Marshals Service).
The Union describes Provision 1 as intended to implement section 7106(a)(2)(D) of the Statute in the context of the contractual article on mid-term bargaining. The Union asserts that the case upon which the Agency relies supports a conclusion that the Authority sanctions "varying formulations of the test to be used in a maintenance of standards clause." Union reply brief in Case No. 0-NG-1287 at 7. The Union asserts that the correct test for determining whether Provision 1 is nonnegotiable is whether it would prevent the Agency from acting at all.
B. Analysis and Conclusions
At the outset, we note that Proposal 8 in U.S. Marshals Service did not rely on the application or interpretation of section 7106(a)(2)(D) for its disposition. Rather, it concerned the circumstances under which the agency would be obligated to maintain the status quo pending completion of the negotiation process. Section 7106(a)(2)(D) concerns the right of an agency to take actions in the event of an emergency. Therefore, Proposal 8 in U.S. Marshals Service is inapposite to the issue raised by Provision 1.
In our view, the question to be resolved in determining whether Provision 1 directly interferes with the Agency's management right under section 7106(a)(2)(D) is whether Provision 1 imposes a more stringent standard on the Agency's ability to act than section 7106(a)(2)(D) does. The latter vests an agency with the authority "to take whatever actions may be necessary to carry out the agency mission during emergencies." Provision 1 would define the Agency's authority as encompassing actions "that are absolutely necessary for the functioning of the [A]gency." While qualifying "necessary" with "absolutely" arguably is superfluous, it nevertheless adds a nuance to the statutory standard. As a result, a higher degree of necessity would be required in order for an action to be authorized than would be required under a standard of "necessary" standing alone. Consequently, we conclude that Provision 1 directly interferes with management's right to take whatever action may be necessary to carry out the Agency mission during emergencies because it substitutes a stricter standard than that set forth in section 7106(a)(2)(D). Compare American Federation of Government Employees, AFL-CIO, National EPA Council and Environmental Protection Agency, 35 FLRA 139 (1990) (proposal was negotiable because it was not more restrictive than applicable legal requirements).
The Union makes no claim that this provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and no basis for considering the applicability of that section to this provision is otherwise apparent to us. Therefore, we do not consider whether this provision is negotiable under section 7106(b)(3) notwithstanding its direct interference with management's right under section 7106(a)(2)(D). Based on the foregoing, we conclude that Provision 1 is not within the duty to bargain.
IV. Provisions 2 and 3
B. Whenever an Association official spends, over a two[-]year period, less than 40% of his/her duty hours per bi-week on examining related activities, the official, upon returning to substantially full[-]time examining duties, will be given a reasonable retraining period (without loss of grade or status) of at least 120 days.
C. During the retraining period, there shall be no formal evaluations with respect to quality and quantity that could result in adverse consequences to the Association official. However, supervisors are encouraged to informally evaluate and counsel officials during the retraining period. After the retraining period, no record shall be kept regarding any informal evaluation. If during that 120 day period there is a reassignment (e.g., a docket change), the retraining period shall be restarted from the date of the reassignment. After the retraining period, the official shall only be formally evaluated by, and in accordance with, regular evaluations and regular evaluation procedures that apply to full time examiners; there shall be no special evaluations for former Association officials.
A. Positions of the Parties
1. The Agency
The Agency asserts that Provision 2 interferes with its management right to assign work because it would dictate that certain employees be given training. The Agency contends that the right to assign work encompasses the right to establish the timing, duration and nature of training. Moreover, the Agency asserts that under Provision 2 the circumstances that give rise to the requirement for the training are the result of factors that are not within the control of management but are a consequence of the employee's personal choice to engage in, and to cease engaging in, union activities or are due to internal union affairs, such as where a union representative is voted out of office.
The Agency contends that Provision 3 is similar to proposals that have been found to be contrary to management's rights because they required that formal training be given or placed conditions on management's right to evaluate employees. The Agency, relying on Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324 (4th Cir. 1986) (SSA v. FLRA), asserts that Provision 3 is not negotiable as an appropriate arrangement. The Agency asserts that Provision 3 also is inconsistent with law and Government-wide regulations concerning within-grade increases; specifically, 5 U.S.C. § 5335 and 5 C.F.R. §§ 531.509(e), 531.404(a), 531.509(b), 531.404(a)(1). The Agency contends that Provision 3 is nonnegotiable on the additional ground that it is inconsistent with Government-wide regulations that govern performance appraisal systems, specifically, 5 C.F.R. §§ 330.204(b) [sic], 430.205(a); 430.204(j) and 432.203.
Finally, the Agency asserts that both Provisions 2 and 3 are nonnegotiable because they discriminate between Union officials and other employees. The Agency argues that such discrimination is contrary to section 7116(a)(2) and (b)(2) of the Statute and cites private sector precedent concerning grants of "superseniority" to Union officials in support of its position.(4)
2. The Union
The Union describes Provisions 2 and 3 as having been generated in response to the Agency's demand, made in the context of negotiations over the official time provisions of the agreement, that any Union official who had spent less than 40 percent of his/her time on examining duties in a 2-year period be required to "requalify" for his/her position. Opposition in Case No. 0-AR-1176 at 4, submitted as an attachment to and incorporated into Union reply brief in Case No. 0-NG-1287. The Union asserts that such a requirement would virtually guarantee removal or demotion of some Union representatives. According to the Union, such would result because the productivity standards applicable to employees are based on the assumption that each examiner has a "full docket" of partially processed cases and because the standards for initially qualifying for signatory authority are higher than the standard for retaining that authority.(5) Opposition in Case No. 0-AR-1176 at 4.
The Union describes Provisions 2 and 3 as intended to provide Union officials who have been away from their "regular jobs" for an extended period with an opportunity to rebuild a docket and learn changes that have occurred in technology and patent procedures before being required to meet the quantity and quality standards of their performance appraisal plans. Id. at 5. The Union describes Provision 2 as establishing the prerequisites for eligibility for the retraining period and defining the extent of that retraining period and Provision 3 as defining what happens during the retraining period; i.e., that no evaluations that would result in adverse consequences to the Union official would occur. As to the latter provision the Union contends that it would foreclose evaluation of only the work done during the retraining period and would allow evaluations during that period as long as they are based on work done prior to the period.
The Union describes Provisions 2 and 3 as intended to constitute an appropriate arrangement for employees adversely affected by the exercise of management rights. Specifically, it contends that an employee who has been performing examining duties for minimal amounts of time over a substantial period of time would be disadvantaged by being subjected to qualitative and quantitative standards that assume a full docket of partially processed cases and constant contact with current technology and procedures. It contends that the provisions reflect the Agency's past practice of allowing employees returning from details and the like a reasonable amount of time to learn about changes in technology and procedure.
The Union disputes the Agency's contentions that these provisions are inconsistent with statutory and regulatory provisions relating to within-grade increases and performance appraisal systems. In response to the Agency's arguments to the effect that these provisions would amount to discrimination between Union officials and other employees, the Union presents an alternative theory as to why the provisions are negotiable. Specifically, the Union argues that the provisions should be treated as an "additional grant of official time under Section 7131(d)" of the Statute. Id. at 9.
B. Analysis and Conclusions
1. Management's Rights
The language of Provision 2 is couched in terms of requiring a "retraining" period for Union officials who are returning to "substantially full[-]time examining duties." However, when read in context with Provision 3 and the Union's statement of intent, we conclude that a more accurate description of Provisions 2 and 3 is that they establish a transition period in which such officials are afforded an opportunity to brush up on their job-related knowledge and skills and rebuild their case docket without being subjected to strict application of performance standards. Provisions 2 and 3 do not prescribe a specific training program that must be afforded such officials during this "retraining," or transition, period. Consequently, we find that the Agency's arguments to the effect that Provision 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) because it would prescribe a training program are misplaced. Rather, Provisions 2 and 3 concern management rights only insofar as they relate to performance appraisal systems.
Provisions 2 and 3 require that accommodations be made for Union officials who are returning to substantially full-time examining duties insofar as they concern the productivity standards that they will be expected to meet. Provision 2 establishes the circumstances under which the accommodations must be made and Provision 3 specifies the accommodations that will be made; namely, that no work done during the retraining period will be subject to formal evaluation.
It is well established that management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute include the right to identify critical elements of performance and establish performance standards. For example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 39 FLRA 731 (1991) (Provision 1) (IRS).
Proposals that absolve employees of accountability for meeting specific levels of performance directly interfere with management's rights to direct employees and assign work because they preclude management from establishing performance standards to evaluate employees in all circumstances. See National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 63-65 (1988). Similarly, proposals that make adjustments or changes in production expectations directly interfere with management's rights to direct employees and assign work because they interfere with management's discretion to determine the standards of work production to be required of employees. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Mid-America Program Service Center, Kansas City, Missouri, 33 FLRA 454, 461-62 (1988); Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1398 (1987), affirmed as to other matters sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989).
As written and explained by the Union, Provisions 2 and 3 would have the effect of requiring that production expectations be altered for Union officials during the prescribed retraining period. Consequently, they directly interfere with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. See IRS, 39 FLRA at 733-34 (provision that would exempt union officials from measured evaluation directly interferes with the rights to direct employees and to assign work).
A provision that directly interferes with a management right under section 7106 of the Statute is, nevertheless, negotiable if it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. In determining whether a proposal is an appropriate arrangement, the Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by management's exercise of a reserved right. This determination is made by examining "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG).
In earlier cases the Authority, relying on the case cited by the Agency, SSA v. FLRA, 791 F.2d 324, held, as a matter of course, that the "establishment of job requirements . . . does not by itself adversely affect employees." For example Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA 700, 703 (1987) (OEA). That approach was subsequently rejected by the U.S. Court of Appeals for the District of Columbia in Overseas Education Association, Inc. v. FLRA, 876 F.2d 960 (D.C. Cir. 1989), reversing OEA. The court held that the Authority should consider the facts bearing on the issue in determining whether job requirements adversely affect employees. The Authority adopted the court's fact-based analytical approach in West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1011-14 (1990) (West Point Elementary School). If a proposal is determined to be an arrangement, the Authority determines whether the proposed arrangement is appropriate, or whether it is inappropriate because it excessively interferes with management's rights. KANG, 21 FLRA at 31-33. This is accomplished by weighing the competing practical needs of employees and management. Id.
As a threshold matter, we find that Provisions 2 and 3 establish an arrangement for Union officials adversely affected by the exercise of management's rights to direct employees and assign work. The intent of the provisions is to ameliorate the effects of the Agency's established performance standards on Union officials who have spent substantial amounts of time for a substantial period on Union activities rather than on their regular duties. It is reasonable to conclude that absence from regular duties for 60 percent, or more, of the time over a 2-year, or more, period would result in an inability to meet, or at least considerable difficulty in meeting, productivity standards that are premised on full time spent on regular duties. Thus, it is reasonable to conclude that requiring those Union officials to meet immediately the productivity standards that are established for their positions would adversely affect them. Consequently, we find that the provisions are intended as an arrangement for employees adversely affected by the exercise of management rights.
Having concluded that Provisions 2 and 3 constitute an arrangement, we now consider whether that arrangement is appropriate within the meaning of section 7106(b)(3) of the Statute. For the reasons that follow, we conclude that Provisions 2 and 3 excessively interfere with management's rights to direct employees and assign work.
The nature and extent of the adverse effect suffered by employees would be those associated with having to meet performance standards that, under the circumstances, would be impossible or, at best, extremely difficult to meet. That is, as noted, an employee who had been spending a large portion of time on non-examining, but nevertheless legitimate, activities for a substantial period of time would be required to produce at a level expected of an employee who had been devoting full time to examining activities. A negative performance evaluation can result in personnel actions adverse to an employee, which could include denial of a within-grade increase, demotion, and termination. Thus, the nature and extent of the forseeable adverse effects that could flow from productivity standards that do not make any accommodation for time spent on union activities are considerable.
The Agency suggests that the choice to engage in union activities rests with the employee and is not within the Agency's control and, thus, any resulting consequences are the product of factors outside of management's control. Under section 7102 of the Statute, employees have a statutory right to engage in such activities.(6) This is consistent with one of the underlying policies of the Statute that labor organizations and collective bargaining in the civil service are in the public interest. 5 U.S.C. § 7101. In furtherance of this right and policy, section 7131 of the Statute specifically authorizes negotiation of official time to accommodate employees who engage in activity on behalf of a union. Clearly, the Statute seeks to minimize any adverse effects on employees that might result from union activity. See also 5 U.S.C. § 7116. Thus, we reject a view that an employee's choice to engage in union activities on official time makes the employee culpable, in whole or in part, for any adverse effects on his or her career that result. Rather, we believe that the adverse effects should be viewed as a product of performance standards that make no allowance for time legitimately spent on non-examining activities. As management retains the right to establish performance standards, employees have little, if any, control over the productivity expectations placed on them.
Clearly, an allowance regarding expected production levels made for time spent in union activities offers a significant benefit to affected employees in that it ensures that employees engaged in representational activities will not be penalized because of such activity. However, the Agency has a significant interest in being able to hold employees accountable for their performance by establishing and enforcing performance standards.
While offering significant benefits to employees, Provisions 2 and 3 place severe restrictions on management's rights to direct employees and assign work. Specifically, Provisions 2 and 3 effectively prohibit any formal evaluation of work performed during the retraining period.(7) For example, these provisions would prevent the Agency even from holding an employee accountable for work defects that are not attributable to circumstances caused by the employee having spent a significant amount of time on protected activity. Thus, these provisions would severely hamper the Agency's ability to hold employees accountable for their work performance during that period. Consequently, we conclude that the interference with management's rights is excessive and outweighs the benefit to employees and that Provisions 2 and 3 do not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See IRS, 39 FLRA at 735-36. Provisions 2 and 3, therefore, are nonnegotiable.
In reaching this conclusion we note that the restrictions that these two provisions would place on management's rights are more stringent than those posed by sections B through E of Proposal 1 in National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., 40 FLRA 570 (1991). In that case, sections B through E essentially required that time spent by an employee on union representational functions would not be considered as a negative factor in evaluating the employee and that consideration be given to, and reasonable accommodations be made for, time spent on representational functions in the performance appraisal process. In contrast to Provisions 2 and 3, those sections did not foreclose evaluation of work performed be employees during a given period.
2. The Applicability of 5 U.S.C. § 7131(d)
The Union argues that these provisions could be viewed as involving an additional grant of official time under section 7131(d) of the Statute. Under that section, parties to a collective bargaining relationship may negotiate over grants of amounts of official time. Although Provisions 2 and 3 address the consequences of use of official time on an employee's ability to meet production expectations, they do not, by their terms, seek an amount of official time. Therefore, we conclude that section 7131(d) is inapplicable to Provisions 2 and 3 and reject the Union's claims in that regard.
3. Summary
Provisions 2 and 3 excessively interfere with management's rights to direct employees and assign work. In view of this conclusion, it is unnecessary to, and we do not, address the Agency's arguments that these provisions are nonnegotiable for the additional reasons that they are inconsistent with 5 U.S.C. § 7116(a)(2) and (b)(2) and that Provision 3 is inconsistent with various laws and Government-wide regulations that relate to within-grade increases and performance appraisal systems.
V. Provision 4
Prior to the announcement of a vacancy, the Office shall appoint an evaluation panel to evaluate and rank the candidates for the vacancy. The panel will consist of persons who are at least one grade higher than the highest grade assignable to the vacancy and, where possible, shall include no more than one person under the jurisdiction of the second line supervisor.
A. Positions of the Parties
The Agency argues that the second sentence of this provision "sets parameters" within which management may appoint members of evaluation panels that rate and rank candidates for vacancies. Agency statement of position in Case No. 0-NG-1296 at 4. The Agency asserts that by establishing such parameters, the provision "attempts to compel the selection of certain employees within a single supervisory category" and subject such selections to arbitral review. Id. The Agency contends that, therefore, this provision is inconsistent with management's right under section 7106(a)(2)(B) to determine the personnel by which agency operations shall be conducted and is nonnegotiable.
The Union describes this provision as providing a procedure by which an "impartial and equitable" evaluation panel will be chosen to rate and rank candidates for promotion. Union reply brief in Case No. 0-NG-1296 at 7. The Union states that the provision only precludes a class of employees from being on panels rather than specifying that particular persons be appointed to those panels. The Union contends that it is contrary to "general merit principles" enunciated in 5 U.S.C. § 2301(b)(1) and (2) to appoint persons with obvious conflicts of interest to promotion evaluation panels. Id. The Union argues that this provision does not directly interfere with management's rights and does not prevent the Agency from acting at all. Finally, the Union asserts that this provision refers to an Agency practice that has been in effect for 20 years.
B. Analysis and Conclusions
In arguing that Provision 4 is nonnegotiable, the Agency refers only to the second sentence. Therefore, we conclude that sentence 1 is not in dispute. See National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362 (1990) (Naval Plant Representative Office, St. Louis) (provision requiring only that a ranking panel be used where three or more qualified applicants are identified held negotiable). Accordingly, we will address only the second sentence.
The Authority has previously held that proposals that prohibit agencies from selecting specified employees or types of employees to serve on rating and ranking panels directly interfere with management's right to assign work. For example, American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Navy Resale Activity/Navy Exchange, Naval Weapons Station, Charleston, South Carolina, 35 FLRA 1128 (1990) (Proposal 4) (Naval Weapons Station, Charleston); National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422, 423-24 (1987) (Financial Management Service). In considering those proposals, the Authority noted that employees appointed to ranking panels are performing work for an agency and that their selection involves a work assignment by an agency to the selected individuals. The Authority has consistently held that the right to assign work under section 7106(a)(2)(B) of the Statute includes the discretion to determine "the particular employees to whom or positions to which [work] will be assigned." National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980) (Public Debt), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).
A proposal that prohibits an agency from selecting particular employees, such as those at a particular grade level, as members of a ranking panel prevents management from assigning duties to those particular employees and directly interferes with management's right to assign work under section 7106(a)(2)(B). Naval Weapons Station, Charleston and Financial Management Service. Like the proposals found nonnegotiable in Naval Weapons Station, Charleston and Financial Management Service, the second sentence of Provision 4 would restrict the Agency from assigning the duty of participating on ranking panels to particular employees. Therefore, for the reasons expressed in those decisions, it directly interferes with management's right to assign work.
It is not clear how the Union's arguments concerning "general merit principles" relate to the issue of the negotiability of the provision. If the Union intends by this argument to claim that this provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, we reject the claim as unsupported. In our view, the Union's statement that "[o]bviously, there would be a conflict of interest when panel members are at the same grade as the candidate and might compete with the candidates for the next promotion" is speculative. Union reply brief in Case No. 0-NG-1296 at 7. Provisions addressing "purely speculative or hypothetical concerns" do not constitute arrangements under the Authority's appropriate arrangements analysis. See, for example, West Point Elementary School, 34 FLRA at 1012. Thus, we find that the Union's arguments concerning Provision 4 do not raise a valid claim that the provision constitutes an appropriate arrangement under section 7106(b)(3).
Nor does the Union's assertion that the provision reflects a long-standing Agency practice overcome the fact that it directly interferes with a management right. Proposals that are nonnegotiable under section 7106(a) do not become negotiable based on management actions. For example, Philadelphia Metal Trades Council and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 38 FLRA 59, 62 (1990). For the foregoing reasons, we conclude that the disputed portion of Provision 4 nonnegotiable.
Finally, in view of our determination that the disputed portion of the provision is nonnegotiable based on its direct interference with management's right to assign work, we do not address the Agency's assertion that it directly interferes with management's right to determine the personnel by which Agency operations shall be conducted.
VI. Provisions 5, 6, and 7
The selecting official will personally discuss with candidates any questions they may have about their non-selection.
When requested by a competing applicant, the Office shall furnish the following information after the action has been completed:
4. Any other relevant information the applicant may require to prosecute a grievance or other challenge.
A copy of the written grievance shall be furnished to the next higher management official with authority to resolve the matter causing dissatisfaction or the next higher Association official in the case of an Office grievance. The official shall answer the merits of the grievance, provide any pertinent information relevant to the grievance, and present any allegations of procedural deficiencies within ten (10) calendar days of filing the formal grievance. The official's answer shall clearly indicate the reason(s) for his/her position and shall address the points raised by the grievant in the formal grievance. The grievant may file exceptions within ten (10) calendar days of receipt of the official's answer. The grievant's exceptions (if any) shall become a part of the grievance file.
A. Positions of the Parties
The Agency raises a common objection to the negotiability of all three of these provisions. That is, the Agency asserts that the provisions do not acknowledge restrictions on the release of information that exist under the Privacy Act, 5 U.S.C. § 552a, or "other applicable law or regulation," and the provisions are, therefore, inconsistent with law. Agency statement of position in Case No. 0-NG-1296 at 6.
The Union specifically states that all three provisions are intended to be read in conjunction with Article 2, section 1, of the parties' agreement, which states that administration of the agreement is governed by existing or future laws. The Union asserts that where the Privacy Act prohibits providing information, these provisions are not intended to require disclosure. Where, however, there is a dispute as to whether disclosure of information is prohibited by the Privacy Act, the Union states that the issue may be resolved on a case-by-case basis through appropriate means such as the negotiated grievance procedure, court action, or an unfair labor practice proceeding. Union reply brief in Case No. 0-NG-1296 at 7-9.
B. Analysis and Conclusions
Although the Agency refers generally to applicable laws and regulations in arguing that these three provisions are nonnegotiable, the only specific law or regulation cited is the Privacy Act. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. For example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 711-12 (1990) (EPA I); National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982) (NFFE, L. 1167 v. FLRA), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts at its peril. For example, National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990).
It is not apparent to us what, if any, laws and regulations relating to the disclosure of information, other than the Privacy Act, might apply to these provisions. Consequently, we will limit our consideration to the Privacy Act.
Here, the Union specifically states that these provisions are not intended to require the release of information where such is inconsistent with the Privacy Act. In this regard, the Union states that the parties have agreed in Article 2, Section 1, a provision not in dispute, that the contract will be governed by existing and future statutes. Provisions 5, 6, and 7 make generalized references to "any" information; however, there is nothing in their plain language that specifically requires the disclosure of information notwithstanding the Privacy Act. Compare National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, Department of Military Affairs, Springfield, Illinois, 39 FLRA 1087 (1991) (Proposal 1), appealed as to other matters sub nom. U.S. Department of Defense, Department of Military Affairs v. FLRA, No. 91-1216 (D.C. Cir. May 10, 1991). (The Authority held that the plain wording of the proposal, which required disclosure of information "not withstanding [sic] the existence of the Privacy Act," was inconsistent with the union's statement of intent that the proposal would not require the agency "to abdicate any legal responsibility.") Moreover, there is nothing in the language of these provisions that specifies whether the information must be provided in sanitized or unsanitized form. Compare INS, 37 FLRA at 1361 (the parties' arguments clearly indicated that the provision in dispute was intended to require the furnishing of unsanitized documents). Consequently, the provisions, as written and interpreted by the Union, would not prevent the Agency from either withholding information or providing it in sanitized form where such action was necessitated by the Privacy Act. Therefore, we reject the Agency's assertions that these provisions are inconsistent with the Privacy Act and, in the absence of any other grounds raised by the Agency, find that Provisions 5, 6, and 7 are negotiable.
VII. Provision 8
The employee and/or his or her representative shall receive all evidence relied upon by the Office in proposing any disciplinary or adverse action. The Office shall also provide the employee, upon request, all evidence that is favorable to the employee and related to the reasons for the proposed action. After a disciplinary or adverse action has been proposed, any new evidence which will amend or create a new allegation or reason for the proposed action, will require a new proposed action, if such evidence is to be relied upon by the Office. If the Office is to rely upon any other evidence after proposing a disciplinary or adverse action, the employee or his/her representative will be provided an opportunity to respond to such new evidence.
A. Positions of the Parties
The Agency contends that the obligation to supply evidence that Provision 8 places on it is not limited to evidence adduced during the investigation of the incident underlying a disciplinary or adverse action but imposes "an additional and unreasonable burden on management to '. . . find favorable evidence.'" Agency statement of position in Case No. 0-NG-1296 at 8. The Agency contends that by requiring the compilation of favorable evidence, the provision prescribes duties that Agency personnel will perform, something that amounts to the assignment of work to nonunit employees. The Agency contends, therefore, that Provision 8 is nonnegotiable.
The Union describes this provision as placing an affirmative obligation on the Agency to supply favorable evidence to an employee charged with a disciplinary or adverse action. The Union contends that the provision would "prevent unfair coloring of the action due to the lack of favorable evidence" and protect the employee from "misunderstandings resulting from a lack of knowledge of the surrounding circumstances." Union reply brief in Case No. 0-NG-1296 at 9. The Union asserts that the provision does not identify the particular person who must carry out the tasks involved but states that failure to assign the task to someone competent to perform it will not excuse a failure to "find favorable evidence." Id. The Union argues that management's right to assign work should not be construed so broadly that it encompasses any activity by any employee.
B. Analysis and Conclusions
In our view, Provision 8, as written and explained by the Union, does not require the Agency to perform any additional investigation to seek out favorable evidence beyond what it had already uncovered prior to proposing a disciplinary or adverse action. Rather, all that the provision does is require the Agency to provide the employee, upon request, with all favorable evidence that is in its possession. Thus, we do not construe the provision as placing an additional burden to find favorable evidence on the Agency.
Clearly, gathering together the necessary information and turning it over to the employee would entail work that necessarily would have to be assigned to someone. However, the provision does not specify who will perform the necessary tasks. We have previously held that to conclude that a proposal or provision interferes with management's right to assign work simply because it requires an agency to take some action would completely nullify the obligation to bargain because no obligation of any kind could be placed on management through negotiations. For example, Naval Plant Representative Office, St. Louis, 35 FLRA 362, 368 (1990). Therefore, we do not find that an otherwise negotiable proposal or provision is nonnegotiable based simply on the fact that an agency may have to take some action, such as assigning work, to fulfill an obligation placed upon it by the proposal or provision. See also American Federation of Government Employees, Local 1698 and U.S. Department of the Navy, Naval Aviation Supply Office, Philadelphia, Pennsylvania, 38 FLRA 1016, 1022-24 (1990).
Here, the Agency asserts no grounds other than an indirect effect on management's right to assign work as barring the negotiability of this provision and none is otherwise apparent to us. Based on the foregoing, we find that the fact that Provision 8 would have the indirect effect of requiring the assignment to someone of the work involved in providing employees with favorable evidence that is in the Agency's possession does not provide a basis for concluding that Provision 8 is nonnegotiable. We conclude that Provision 8 is within the duty to bargain.
VIII. Provision 9
Where the Office has relied upon witnesses to support the reasons for the proposed action, the Office will make those witnesses available, to the extent it has control over them, for the employee or his/her representative to question.
A. Positions of the Parties
The Agency concedes that the ability to question management witnesses would aid an employee in the preparation of his/her defense in an adverse or disciplinary action. However, the Agency contends that this provision, as drafted, conflicts with section 7102 of the Statute. Specifically, the Agency contends that in those situations where an employee had designated the Union as his/her representative, the provision would require the Agency to compel an otherwise unwilling employee witness to submit to questioning by the Union. The Agency argues that this requirement places the Agency in the position of infringing on the employee witness' right under section 7102 to refrain from assisting a labor organization without fear of penalty or reprisal.
The Union describes this provision as according an employee or his/her representative the opportunity to question witnesses upon whom management is relying to support a disciplinary or adverse action. The Union argues that this provision is necessary to afford "a full and fair hearing" and avoid surprises "during any ensuing hearing based on the action taken." Union reply brief in Case No. 0-NG-1296 at 10. The Union contends that the section is intended to provide procedural due process and to enable the charged employee to properly prepare a defense.
The Union asserts that the Agency's claim that this provision infringes upon an employee's rights under section 7102 of the Statute "merely because that employee might object to participation in a discovery meeting" is misplaced. Id. The Union contends that under section 7102, the right to "assist" a union refers to acting in a representative capacity on behalf of the union or other employees. The Union argues that the right to refrain from assisting a union does not encompass refusing "to submit to cross-examination when the employee is a witness for management." Id.
B. Analysis and Conclusions
The record is not detailed as to the specific context in which this provision would apply. However, based on the language of the provision, the submissions of the parties, and the existing legal and regulatory provisions that govern adverse and disciplinary actions, we interpret this provision as requiring the Agency to make the employees, on whom it is relying as witnesses at a hearing to support an adverse or disciplinary action, available to the employee who is the subject of the action, or to the representative of that employee, for purposes of prehearing discovery.
Under existing legal and regulatory provisions that govern adverse and disciplinary actions and appeals thereof in the Federal sector, there are three circumstances in which hearings may occur that are apparent to us. One is in conjunction with arbitration pursuant to section 7121 of the Statute. A second is in conjunction with an appeal to the Merit Systems Protection Board (MSPB) pursuant to 5 U.S.C. § 7513(d). A third is in conjunction with regulations issued pursuant to 5 U.S.C. § 7513(c).(8) For purposes of this decision, we interpret this provision as affording the employee against whom an adverse or disciplinary action is taken, or his/her representative, the opportunity for prehearing discovery of the Agency's witnesses in conjunction with hearings conducted in any of these three contexts.
The Agency asserts only that this provision is inconsistent with section 7102 of the Statute. At the outset, we note that section 7102 would apply only to persons who meet the definition of "employee" under section 7103(a)(2) of the Statute.(9) Thus, the Agency's claim that this provision is nonnegotiable is relevant only insofar as the provision applies to Agency witnesses who are employees within the meaning of section 7103(a)(2) of the Statue.
The issue before us is whether a contractual requirement is inconsistent with section 7102 of the Statute if it requires an employee within the meaning of section 7103(a)(2) on whom the Agency is relying as a witness at a hearing to support an adverse or disciplinary action to submit to prehearing discovery conducted by or on behalf of the employee against whom the action is being taken. We begin our analysis by addressing this provision in the context of arbitration proceedings.
The Authority has held that "the right guaranteed to employees under section 7102 of the Statute to form, join, or assist any labor organization, or to refrain from such activity, is sufficiently broad to include within its scope the right of an employee to appear as a witness in an Authority proceeding to which the union is a party and to give testimony supporting or opposing the union's interest in that proceeding." National Treasury Employees Union and National Treasury Employees Union, Chapter 53 and Internal Revenue Service and Brooklyn District Office, 6 FLRA 218, 218 (1981) (IRS, Brooklyn). Clearly, the right guaranteed employees by section 7102 encompasses the right of employees to appear as a witness in arbitration proceedings and give testimony supporting or opposing the Union's interest in that proceeding.(10) See Internal Revenue Service and Brookhaven Service Center and National Treasury Employees Union and National Treasury Employees Union, Chapter 99, 9 FLRA 930 (1982) (Brookhaven) (the rights of employees under section 7102 extend to interviews by management for the purpose of ascertaining the facts in the preparation of its case for third-party proceedings). The Authority has held that generally an agency may not force bargaining unit employees to participate in interviews conducted in preparation of its case for presentation at proceedings before a third-party neutral. For example, U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York, 38 FLRA 1552 (1991); Brookhaven, 9 FLRA at 933. In so holding, the Authority has found that compelling employees to submit to such interviews conflicts with their rights protected under section 7102 to form, join, or assist a labor organization or to refrain from such activity freely and without fear of penalty or reprisal. Id.
The Authority's precedent in IRS, Brooklyn and Brookhaven raises the question of whether an agency can compel a unit employee to participate in prearbitration discovery interviews in any circumstances without interfering with the employee's section 7102 rights. We conclude that where such participation is required pursuant to a contractual provision, there is no violation of section 7102 rights. In so concluding, we find that employees' rights under section 7102 are not absolute. Rather, in assessing whether an employee's rights are protected under section 7102, we must take into consideration conflicting, legitimate interests and strike a balance between those interests and employees' rights to form, join or assist a labor organization or to refrain from such activity.
The Authority previously has applied such an approach in determining whether an employee has a right under section 7102 to wear a union lapel pin. In such cases the Authority has applied a "special circumstances test" to balance employee and employer rights in determining whether employees have the right to wear union insignia at the workplace. For example, Border Patrol. In applying that balancing test, the Authority determines whether the employees' basic right to wear union insignia is outweighed by the potential for disruption of the agency's operations. 38 FLRA at 711-18.
In this case, we conclude that it is appropriate to balance the right of a unit employee to participate as a witness at an arbitration proceeding and give testimony supporting or opposing the Union's (or the Agency's) interest without fear of penalty or reprisal against the conflicting legitimate interests of the Union. Obviously, parties to an arbitration proceeding have a legitimate interest in adequately preparing their case. Also, settlement of grievances is generally favored. See, for example, Cook Paint and Varnish Company v. NLRB, 648 F.2d 712, 722 (D.C. Cir. 1981) (Cook Paint), denying enforcement and remanding Cook Paint and Varnish Company, 246 NLRB 646 (1979). Access to information through discovery can contribute to promoting settlement. See, id.; compare NLRB v. Acme Industrial Company, 385 U.S. 432 (1967) (employer required to furnish information to a union to enable the union to decide whether to process a grievance). Thus, we conclude that parties have a substantial and legitimate interest in conducting prehearing discovery interviews with the witnesses of the opposing party. These interests are consistent with the purposes and policies of the Statute, in particular, the encouragement of amicable settlements of disputes and the promotion of effective and efficient Government. See 5 U.S.C. § 7101.
On the other hand, such interviews can be inherently coercive of employees' section 7102 rights. See, for example, Brookhaven, 9 FLRA 930; Cook Paint, 648 F.2d 712, 730-31 (Wright, dissenting); and NLRB v. Johnnie's Poultry Co., 334 F.2d 617 (8th Cir. 1965). However, in our view, there is a difference between the potential for inherent coercion in circumstances where a compulsory discovery interview is imposed unilaterally by an employer and those in which discovery is obtained through statutory and regulatory provisions that allow for discovery of opposing witnesses. In our view, in the latter situation the inherent coerciveness of compulsory participation in a discovery interview is diminished because in such circumstances an employee is not being compelled to participate purely on the basis of his/her employer's power and authority over the employee. Rather, the compulsion flows from a decision made outside the specific employment relationship based on a perceived need for orderly information procedures in which all parties are adequately informed. We believe that a contractual provision allowing for prearbitration discovery is similarly distinguishable from that which is unilaterally imposed by an employer. See Cook Paint, 648 F.2d at 734 n.48 (Wright, dissenting) ("[t]o respect a contractual agreement to supply information is one thing; to uphold the legitimacy of unilateral coercion . . . is quite another"). Under such a provision, the compulsion arises not from the employer's power and authority, but from a decision by the parties to the collective bargaining agreement that the resolution of arbitral grievances in general will be enhanced by an exchange of certain information prior to an arbitration hearing. Thus, in our view, a mandatory process established by contract does not pose the same risk to employees' section 7102 rights that unilateral compulsion does.
Therefore, weighing the interests of parties in prehearing discovery against the risk to employee rights, we conclude that the balance should be struck in favor of allowing parties to negotiate contractual provisions allowing for mandatory prehearing discovery of witnesses to be called in an arbitration proceeding and that such a provision, standing alone, does not interfere with employee's rights under section 7102. Of course, this conclusion should not be read as suggesting that a provision that would allow interviews to be conducted in a coercive manner would be sanctioned.(11)
Now we turn to the other circumstances in which this provision could apply. As we noted earlier, Provision 9, as written, could apply also to hearings conducted under the auspices of the MSPB or pursuant to 5 U.S.C. § 7513(c). It is not necessary to determine to what extent those proceedings would involve activity that is protected under section 7102. Based on the considerations expressed above, we find that even assuming that those proceedings involved protected activity the same balance would apply. Thus, a bilaterally established mandatory discovery procedure that is limited to employees who are to appear as witnesses would not interfere with any section 7102 rights of those employees. Moreover, the Agency cites nothing in the statutory or regulatory provisions governing those proceedings that precludes such a discovery procedure, nor is anything otherwise apparent to us. In fact, the regulations that govern MSPB proceedings permit voluntary discovery between parties. 5 C.F.R. §§ 1201.71-1201.75.
Based on the foregoing, we reject the Agency's argument that Provision 9 is inconsistent with section 7102 of the Statute and conclude that it is negotiable. Our decision here should not be taken as an indication that we would find a proposal to allow for discovery interviews of witnesses appearing in proceedings before other third parties, such as the Authority, to be negotiable. Obviously, the policies of those third parties with respect to discovery would be a major consideration in ruling on any proposals relating to discovery during processes conducted under their auspices.
IX. Provision 10
When the Office proposes an adverse action against an employee, the following procedures will apply:
A. The Office will provide the employee with 30 days['] advance written notice of the proposed adverse action[.]
A. Positions of the Parties
The Agency argues that under 5 U.S.C. § 7513, an employee is entitled to at least 30 days' advance written notice of an adverse action except where the Agency has reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment may be imposed. The Agency argues that Provision 10 does not acknowledge the right of the Agency to make the specified exception to the notice requirement.
Relying on the Authority's decision in National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105 (1986) (Provision 1) (Eastern Mapping Agency), the Agency asserts that this provision is nonnegotiable because it is inconsistent with management's rights to discipline and remove employees under section 7106(a)(2)(A) of the Statute.
The Union contends that 5 U.S.C. § 7513 merely exempts employees who are reasonably believed to have committed certain crimes from the requirement that employees be given at least 30 days' advance notice of an adverse action and that it does not require that a lesser notice period be given. The Union argues that Eastern Mapping Agency was wrongly decided in that it did not find that under 5 U.S.C. § 7513 an agency has discretion as to whether to give a lesser amount of notice under the crimes exception and that the exercise of that discretion is negotiable.
The Union also argues that the circumstances in Eastern Mapping Agency are distinguishable from those involved in this provision. The Union contends that the provision found nonnegotiable in Eastern Mapping Agency applied in circumstances where due process had already been afforded the employee and the deciding official's decision on the adverse action had been issued. According to the Union, the provision in this case relates to a point at which due process procedures have not yet been afforded the employee. The Union contends that this provision affords an employee a period of time to prepare his or her case and have access to the workplace. The Union asserts that if the Agency believes that the employee threatens the safety of the workplace, the Agency can place the employee on administrative leave. The Union argues that this provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and is negotiable.
B. Analysis and Conclusions
In Eastern Mapping Agency, the Authority noted that under 5 U.S.C. § 7513(b)(1) an employee against whom an action that is covered under 5 U.S.C. § 7512 is proposed is entitled to at least 30 days' advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed. The Authority found that this exception constituted a "clear legislative mandate" that employees reasonably believed to have committed certain crimes be subject to termination without delay. 21 FLRA at 1106. The Authority found that Provision 1 in Eastern Mapping Agency interfered with management's rights under section 7106(a)(2)(A) of the Statute to take disciplinary actions and to remove employees because it failed to acknowledge management's right to terminate employees without delay pursuant to the crimes exception.(12)
Similarly, we have held that a proposal to stay a disciplinary action or removal pending completion of the grievance and arbitration process that did not acknowledge management's authority under the crimes exception was nonnegotiable because it excessively interfered with management's rights to take disciplinary action against and to remove employees. American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 320-22 (1990) (Wright-Patterson), petition for review as to other matters filed sub nom. U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio v. FLRA, No. 91-1031 (D.C. Cir. Jan. 16, 1991). In concluding that the proposal did not constitute an appropriate arrangement we found that by abrogating management's right under 5 U.S.C. § 7513(b)(1) to exercise the crimes exception, the proposal would have a significant deleterious effect on management's rights to take disciplinary action and remove employees.
Based on the decisions in Eastern Mapping Agency and Wright-Patterson, we conclude that Provision 10 excessively interferes with the Agency's rights to take disciplinary action and remove employees and is nonnegotiable. Compare Merchant Marine Academy, 39 FLRA at 203-05 (Provision 4 held negotiable where it, unlike the provision in Eastern Mapping Agency, preserved the Agency's right under 5 U.S.C. § 7513(b) to suspend the usual notice period when there is reasonable cause to conclude that the affected employee has committed a crime punishable by imprisonment). In reaching this conclusion, we reject the Union's argument that Eastern Mapping Agency was wrongly decided insofar as it held that proposals or provisions relating to advance notice of proposed adverse actions that fail to acknowledge the crimes exception directly interfere with management's rights. The Union's argument is based on disagreement with our construction of the crimes exception as constituting a clear legislative mandate that employees in the specified circumstance be subject to termination without delay. We will continue to adhere to that construction.
We also reject the Union's argument that Provision 10 in this case is distinguishable from Provision 1 in Eastern Mapping Agency because Provision 10 applies to a period of time prior to the completion of "due process procedures." Union reply brief in Case No. 0-NG-1296 at 11. By its terms, the 30-day notice requirement contained in 5 U.S.C. § 7513(b)(1) relates to an obligation to give notice of the proposal to take action rather than notice running from a final decision to effectuate the action as the Union's argument suggests. See 5 C.F.R. § 752.404; see also McInville v. U.S. Postal Service, 31 M.S.P.R. 297, 301 (1986). (In discussing 5 U.S.C. § 7513(b) the MSPB noted that "[t]he requirement that an employee against whom an action is proposed is entitled to at least 30 days' advance written notice of the charges is designed to afford the employee an opportunity to defend against the proposed charges." [Emphasis supplied.])
X. Provision 11
Smoking will be prohibited in rooms where meetings are being conducted, or in shared offices or work areas unless all professionals therein agree to such. Smoking professionals shall not be required to share an office or a work area with non-smoking professionals. To achieve this end, the Office, upon request from the affected professionals, will be permitted to deviate from the priority of Section III of appendix B.
A. Positions of the Parties
The Agency contends that Provision 11 interferes with management's rights to assign and direct employees under section 7106(a)(2)(A) because it would prohibit it from directing an employee who smokes to share an office with an employee who does not.
The Union describes this provision as authorizing deviations to be made in previously agreed-on procedures for the assignment of offices to employees. The Union denies that this provision interferes with management's rights; however, the Union states that, if it does, the provision constitutes an appropriate arrangement negotiable under section 7106(b)(3) of the Statute. In support, it contends that the interests of smoking and non-smoking employees in having separate offices are more significant than any interests management has in forcing a smoking and a non-smoking employee to share an office.
B. Analysis and Conclusions
The right to assign employees means the right to decide the particular position to which an employee will be assigned. For example, American Federation of Government Employees, Local 3601 and U.S. Department of Health and Human Services, Public Health Service, Indian Hospital, Claremore, Oklahoma, 39 FLRA 504, 517 (1991). This right encompasses the authority to determine the particular qualifications and skills needed to perform the work of a position as well as the authority to determine which employees possess the requisite qualifications and skills. For example, National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 850 (1990). This right does not normally encompass the decision as to where employees will perform duties previously assigned to their positions. See National Treasury Employees Union and Internal Revenue Service, 28 FLRA 40, 43-45 (1987) (NTEU and IRS) (proposal did not interfere with right to assign employees where there was no indication in record that employees would perform duties other than those that the agency had already assigned to their position at a different location).
There is no indication in the record here that office assignment controls or affects the position to which an employee is assigned. That is, there is no indication that office assignment represents anything more than the location where the employee will perform duties previously assigned. Consequently, we reject the Agency's assertion that this provision directly interferes with management's right to assign employees.
The Statute does not define management's right to direct employees. In the absence of any indication that the phrase as used in the Statute has a meaning other than its ordinary meaning, the Authority has determined that the right to direct employees means to "supervise and guide [employees] in the performance of their duties on the job." Public Debt, 3 FLRA at 775. The right to direct employees is exercised through supervising employees and determining the quantity, quality and timeliness of work production and establishing priorities for its accomplishment. For example, IRS and NTEU, 28 FLRA at 43.
This provision does not concern the direction of employees within the meaning of section 7106(a)(2)(A). It does not involve supervising employees or determining the quantity, quality and timeliness of work production or establishing priorities for its accomplishment. The Agency makes no showing in the record as to how this provision relates to directing employees, and a relationship is not otherwise apparent to us. Thus, we find that the provision does not interfere with management's right to direct employees. See, for example, id.
The Agency makes no claim here, and it is not otherwise apparent to us, that the assignment of employees to specific offices involves "functional grouping" and, by extension, that such a grouping constitutes the methods and means of performing work under section 7106(b)(1). See, for example, National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 406-09 (1990). Consequently, this case is distinguishable from those cases in which a demonstration has been made that the location of employees in office space bears a functional relationship to facilitating the performance of the agency's work. For example, id.
Based on the foregoing, we reject the Agency's claim that Provision 11 is nonnegotiable because it directly interferes with management's rights under section 7106(a)(2) to assign and direct employees. See IRS and NTEU, 28 FLRA at 43-45. We conclude that Provision 11 is within the duty to bargain.
XI. Provision 12
The PTO is encouraged to provide a 24-hour per day security system for all work areas utilized by the professional staff. The PTO will provide access for authorized professionals to their designated work areas at all times (i.e., 24 hours per day). Lockable doors will be provided for either each individual office or work area. (Only the underscored portions are in dispute.)
A. Positions of the Parties
The Agency argues that the second and third sentences of this provision directly interfere with management's right under section 7106(a)(1) to determine internal security practices. The Agency asserts that it needs to be able to control access to the work place and work areas at all times. In particular, the Agency cites the presence of confidential and classified documents and information as resulting in a need for security above that associated with the protection of its property and employees. It argues that determinations concerning access to restricted areas must remain solely in the purview of the Agency.
The Union asserts that Provision 12 is intended to maintain the current practice whereby the vast majority of bargaining unit employees have a lock on their office to which both the employee and management have keys. The Union contends that Provision 12 was written to protect "both the persons and the property of the employees." Union reply brief in Case No. 0-NG-1296 at 13. The Union asserts that the increased crime rate in the Crystal City area (the location of the Agency's facilities) makes the prescribed safeguards necessary. The Union contends that security is also important because several employees have brought their own computer equipment into their offices to use in performing the Agency's work. The Union claims that access to work areas 24 hours a day, 7 days a week, facilitates an employee's ability to work voluntary overtime.
The Union contends that this provision is like Proposal 4 in American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 17 FLRA 752 (1985) (Fort Bragg), which the Authority concluded was negotiable. The Union asserts that once individual secured areas are established, there will not be any threat to general security by providing employees with access only to their own office or work area.
B. Analysis and Conclusions
For the reasons that follow, we conclude that the disputed portions of the provision directly interfere with management's right to determine its internal security practices but, nevertheless, are negotiable as appropriate arrangements.
Under section 7106(a)(1) of the Statute, the right to determine internal security practices includes an agency's right to determine the policies and practices that are necessary to safeguard its operations, personnel and physical property against internal or external risks. For example, EPA I, 35 FLRA at 708. The right to determine internal security practices does not, however, encompass measures that are strictly limited to the protection of employees' personal property. Id., 35 FLRA at 713-15.
Here, the Union describes Provision 12 as designed to protect both employees and their property. Because it is not limited strictly to the protection of employees' property, we conclude that the disputed portion of Provision 12 concerns matters that come within the ambit of management's right to determine its internal security practices.
With regard to sentence two, the Authority has previously held that, where supported by a showing of a reasonable connection to internal security considerations, the determination of when and how employees gain access to agency facilities is within an agency's authority to determine its internal security practices under section 7106(a)(1) of the Statute. See American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Robins Air Force Base, Georgia, 37 FLRA 197, 202 (1990) (Robins AFB), petition for review filed as to other matters sub nom. United States Department of the Air Force v. FLRA, No. 90-1530 (D.C. Cir. Nov. 13, 1990); Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA 352, 355-56 (1987) (Naval Underwater Systems Center). Compare U.S. Environmental Protection Agency, Washington, D.C., 38 FLRA 1328, 1329-30 (1991) (agency failed to establish a nexus between its decision to unlock stairwell doors and its internal security practices). Thus, where, as here, the Agency establishes a need to control access to its facilities based, for example, on the presence of confidential and classified documents, we will find that such control is a matter that comes within management's right to determine its internal security practices. See Robins AFB; International Association of Machinists and Aerospace Workers and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711 (1988) (Proposal 9); and Naval Underwater Systems Center.
We conclude, based on the cited precedent, that the second sentence of this provision directly interferes with the Agency's right to determine its internal security practices. Accordingly, the second sentence of this provision is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union's arguments concerning this aspect of the provision indicate that it is intended to benefit employees by facilitating their ability to work at their workplace beyond established hours of work. In our view, these arguments suggest that this portion of the provision offers an amelioration to employees who would be negatively affected by not being able to work beyond regular work hours for such purposes as meeting or exceeding deadlines. As such, it constitutes an arrangement within the meaning of section 7106(b)(3).
Now we turn to the question of whether it is appropriate. This portion of the provision offers a significant benefit to employees in affording them more flexibility to manage their workload and meet demands placed on them. It also places a limitation on the Agency's ability to completely prohibit access to work areas during non-duty hours. However, the effect of this limitation is diminished by the restriction of the access sought to "authorized" professionals and to their "designated work areas." Thus, under this sentence employees would be granted access only to their designated work area. Additionally, limiting access to "authorized" professionals enables the Agency to exercise control over who has access and when that access may be used. Thus, we find that while the provision would require the Agency to provide employees with a means of obtaining access to their work areas on a 7-day/24-hour basis, it does not deprive the Agency of all control over such access. Clearly, this sentence would place an additional burden on the Agency insofar as it could not absolutely prohibit access during non-duty hours and would have to provide some process for authorizing access by employees to their work areas. However, it would also allow both the Agency and its employees to benefit from the employees' increased ability to work outside of established duty hours.
On balance, we conclude that the benefits to the employees of having access to their work areas during non-duty hours outweighs the negative effect on management's right to control access to those areas. Thus, we find that sentence 2 of Provision 12 does not excessively interfere with management's right to determine its internal security practices and is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
As explained by the Union, the third sentence of the provision would require the Agency to maintain its past practice of providing lockable doors in employee work areas for the express purpose of protecting "both the persons and the property of employees." Union reply brief in Case No. 0-NG-1296 at 13. Because this sentence would require the Agency to maintain a practice to safeguard its personnel, it comes within the ambit of management's right to determine its internal security practices. See EPA I, 35 FLRA at 708. By binding the Agency to maintain a particular internal security practice during the life of the parties' agreement, sentence 3 directly interferes with management's right to determine its internal security practices.(13)
The Union's arguments raise the issue of whether sentence 3 of this provision constitutes an appropriate arrangement that is negotiable under section 7106(b)(3) of the Statute. In this regard, the Union claims that this sentence affords a benefit to employees who work in an area with an increasing crime rate. Thus, this sentence is clearly intended as an amelioration of the adverse effects on employees that flow from an office location in such an area and is, consequently, an arrangement within the meaning of section 7106(b)(3).
As we have noted in previous decisions, working in an area that has an appreciable crime rate has a significant negative impact on employees and is a matter over which employees have little control. National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 628 (1990) (EPA II); EPA I, 35 FLRA at 712. All that the third sentence of the provision seeks is that either each individual office or work area have a lockable door. The Union states, and the Agency does not dispute, that the vast majority of professionals in the bargaining unit currently have offices with locks to which both the employee and management have keys and that the sentence intends to maintain this practice. Thus, this sentence would not inhibit management's access to employee work areas. Moreover, the fact that this provision reflects an existing practice and the Agency has made no contention that that practice has proven burdensome, indicates that the practice of providing lockable doors in employee work areas is not unduly burdensome. In our view, the significant benefits that providing lockable doors affords employees in terms of enhancing their security in their work areas outweigh the limited burden placed on the Agency in providing and maintaining the lockable doors. Consequently, we conclude that the third sentence of Provision 12 does not excessively interfere with management's right to determine its internal security practices and is an appropriate arrangement that is negotiable under section 7106(b)(3) of the Statute.
XII. Provision 13
The Office acknowledges the following practices which it intends to continue: Foreign patents will either be delivered and returned to a location in CS-4 by processing personnel or classification projects will be given additional time allotments to compensate for non-productive project time expended in the delivery and return of documents. The personnel responsible for moving the patents will be responsible for their delivery and return. Further increases in storage space will be provided in classification groups for these patents and located, if space is available, near the project personnel.
A. Positions of the Parties
The Agency states Provision 13 "is only an acknowledgement of the existence of certain practices and management's intention to continue such practices." Agency statement of position in Case No. 0-NG-1296 at 14. The Agency contends that such a declaration of intent cannot be construed to create "any contractual rights with respect to the practice." Id.
In agreement with the Agency, the Union states that Provision 13 represents merely an acknowledgement of a past practice that the Agency intends to continue. The Union asserts that this provision was included in the agreement to state conclusively what constitutes past practice and to avoid future litigation over questions of what is the established past practice.
B. Analysis and Conclusions
Both parties acknowledge that this provision merely represents a statement of existing past practices that the Agency intends to continue. Significantly, the Agency makes no assertion that this provision is inconsistent with any specific law, rule or regulation. It does not appear that either party construes this provision as binding the Agency to continue any practice that entails the exercise of a management right for the duration of the agreement. Compare Professional Airways Systems Specialists and U.S. Department of the Navy, Marine Corps Air Station, Cherry Point, North Carolina, 38 FLRA 149, 161-62 (1990) (Provision 2, which restated an existing agency guideline, directly interfered with management's right to assign work because its inclusion in the parties' agreement would prevent the agency from changing its practice during the life of the agreement).
The parties' arguments and the record present no basis for finding this provision nonnegotiable. Consequently, we find that the Agency's disapproval of Provision 13 cannot be sustained.
XIII. Provision 14
Sick leave shall be granted for the care of family members with communicable diseases.
A. Positions of the Parties
The Agency argues that under 5 C.F.R. § 630.401(c) sick leave is authorized when an employee must care for a family member afflicted with a contagious disease. The Agency contends that the terms "contagious" and "communicable" are not interchangeable and that by allowing sick leave where a "communicable" disease is involved, Provision 14 is inconsistent with 5 C.F.R. § 630.401(c).
The Union asserts that "communicable" and "contagious" are synonymous and cites definitions from Dorland's Illustrated Medical Dictionary to support its contention. The Union contends that during discussions before the interest arbitrator, the parties used the two terms interchangeably and further asserts that there is no distinction between the two terms in the Federal Personnel Manual.
B. Analyis and Conclusions
Under 5 C.F.R. § 630.401(c) sick leave is authorized when an employee "[i]s required to give care and attendance to a member of his immediate family who is afflicted with a contagious disease[.]" For purposes of that section, "contagious disease" is defined as "a disease which is ruled as subject to quarantine, requires isolation of the patient, or requires restriction of movement by the patient for a specified period as prescribed by the health authorities having jurisdiction." 5 C.F.R. § 630.201(b)(3). In our view, this definition is more restrictive than the dictionary definitions on which the Union relies to support its claim that "communicable" and "contagious" are synonymous. That is, in the excerpts from Dorland's Illustrated Medical Dictionary that were submitted by the Union, both "communicable" and "contagious" are defined simply as "capable of being transmitted from one person to another."
Because Provision 14 would require that sick leave be granted for care of family members who are suffering from a disease that does not fall within the definition of "contagious" as set forth in 5 C.F.R. § 630.201(b)(3), and for which purpose, therefore, such leave is not authorized under 5 C.F.R. § 630.401, it is inconsistent with 5 C.F.R. § 630.401. See American Federation of Government Employees, AFL-CIO, Local 2263 and Department of the Air Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580 (1984) (Proposal 4) (Kirtland AFB); compare U.S. Department of the Army, Headquarters, 7th Signal Command, Fort Ritchie, Maryland and National Federation of Federal Employees, Local 1153, 34 FLRA 242 (1990) (arbitrator properly ruled that grievant's son was afflicted with a contagious disease within the meaning of 5 C.F.R. § 630.201).
The Authority has previously concluded that 5 C.F.R. § 630.401 constitutes a Government-wide regulation within the meaning of section 7117 of the Statute. Kirtland AFB, 15 FLRA at 583-84. Because Provision 14 is inconsistent with a Government-wide regulation, it is outside the duty to bargain.
XIV. Provision 15
The Office, whenever practical, shall avoid RIF actions by utilizing attrition and/or other means that will not interfere with the accomplishment of the Office's mission. Implementation of a RIF shall be a last resort.
A. Positions of the Parties
The Agency asserts that requiring it to delay a RIF to enable voluntary resignation or retirements is inconsistent with section 7106(a)(2)(A) of the Statute. The Agency further asserts that the "other means" that it would be required to use prior to conducting a RIF would entail the exercise of management rights under section 7106(a) of the Statute. Because this provision would condition the exercise of one management right under section 7106(a)(2)(A) on the prior exercise of other management rights, the Agency contends that it is outside the duty to bargain.
The Union describes this provision as requiring that the Agency avoid RIF actions whenever possible by using attrition or other means. The Union states that this would entail the Agency seeking volunteers for retirement or resignation except from employees in positions deemed necessary to carry out the mission of the Agency. It describes the "other means" as referring to "as yet unidentified but analogous means." Union reply brief in Case No. 0-NG-1296 at 15. In rebutting the Agency's position, the Union asserts that the Agency has failed to identify any particular management right that would be affected by the requirement that "other means" be used as an alternative to a RIF. Additionally, the Union asserts that because this provision would merely delay, and not prevent, a RIF, it is negotiable.
B. Analysis and Conclusions
Provision 15 is materially to the same effect as Proposal 1 and the first two sentences of Proposal 2 in Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306 (1987) (Congressional Research Service). The proposals in Congressional Research Service required that the agency exhaust other methods, such as attrition and cost cutting, prior to conducting a RIF whenever it was "practicable" or "possible" to do so. The Authority found that by placing a condition on management's right to lay off employees, the proposals prevented the agency from exercising its right under section 7106(a)(2)(A) of the Statute. However, the Authority concluded that the proposals were appropriate arrangements within the meaning of section 7106(b)(3) of the Statute and, consequently, negotiable. In so concluding, the Authority, applying the analytical framework set out in KANG for determining whether a proposal constituted an appropriate arrangement under section 7106(b)(3), found that, on balance, the benefit of the proposals to employees outweighed the burden placed on the Agency's exercise of its management rights.
As to the provision in this case, we note in particular that the requirement that the Agency use alternative means to RIF actions is limited to those means that will not interfere with the accomplishment of the Agency's mission and applies only "whenever practical." Consequently, we conclude that this provision allows for consideration of the Agency's mission-related needs and would not require actions that are antithetical to effective and efficient Government. Compare Nuclear Regulatory Commission v. FLRA, 895 F.2d 152, 156 (4th Cir. 1990), reversing in part National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566 (1988) (while holding that specific proposal for freeze on reassignments and promotions excessively interfered with management's rights, the court noted that it might be possible to tailor such a freeze sufficiently to accomplish the desired benefits for employees while avoiding undue impact on management's rights and efficient operations).
Based on the Authority's decision in Congressional Research Service, we conclude that Provision 15 is negotiable as an appropriate arrangement under section 7106(b)(3).(14)
XV. Provision 16
A. When a specific position from which an employee has been demoted by a RIF action becomes vacant and is being filled, the demoted employee will be considered for repromotion noncompetitively to the position subject to subsection B below.
B. An unsatisfactory performance rating which is documented in the employee's Official Personnel File, or a failure to achieve an acceptable level of competence either before or after demotion by a RIF action shall be bases for nonpromotion.
C. If more than one employee meets the criteria of subsection A and is not subject to the criteria of subsection B, the employee who possessed the highest retention standing at the time of demotion will be promoted.
D. All employees previously demoted without personal cause, misconduct or inefficiency, will receive special consideration for repromotion.
A. Positions of the Parties
The Agency argues that this provision is inconsistent with a Government-wide regulation, FPM chapter 335, subchapter 1-4, and, therefore, is nonnegotiable. In support of its position, the Agency relies on the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 2677 and Department of Health and Human Services, Office of Community Services, 21 FLRA 117 (1986), petition for review dismissed sub nom. American Federation of Government Employees, AFL-CIO, Local 2677 v. FLRA, 814 F.2d 774 (D.C. Cir. 1987) (mem.).
The Union describes Provision 16 as patterned on, and intended to have the same meaning as, Provision 2 in KANG, 21 FLRA 24, which the Authority concluded was negotiable as an appropriate arrangement. The Union disputes the Agency's contention that the Authority's decision in Office of Community Service requires a conclusion that this provision is nonnegotiable. The Union asserts that in accordance with KANG and the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 6 FLRA 314 (1981), this provision is negotiable.
B. Analysis and Conclusions
As the Union states, this provision is substantially identical to Provision 2 in KANG, which the Authority concluded was negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Prior to KANG, the Authority had found that a proposal that, like Provision 2 in KANG, required selection of available repromotion eligibles when filling vacancies was nonnegotiable because it was inconsistent with FPM chapter 335, subchapter 1-4, requirement 4; a Government-wide regulation. American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 14 FLRA 801 (1984) (Bureau of the Census). In contrast, Provision 2 in KANG was negotiable as an appropriate arrangement because it applied to National Guard civilian technicians to whom FPM chapter 335 was not applicable. 21 FLRA at 29 n.4. Thus, unlike the employees involved in Bureau of the Census, the provisions of FPM chapter 335, subchapter 1-4, requirement 4 did not apply to the employees who were the subject of the disputed provision in KANG. Consequently, a distinction existed in Authority precedent with respect to proposals requiring repromotion, such as those involved in KANG and Bureau of the Census, based on the applicability of FPM chapter 335 to the employees who were the subjects of the proposals.
While this case was pending, the Authority announced that it would no longer follow the approach it had taken with respect to requirement 4 in Office of Community Services and like decisions. American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 29 FLRA 380 (1987) (Member Frazier dissenting) (Office of Personnel Management) aff'd sub nom. Office of Personnel Management v. FLRA, 864 F.2d 165 (D.C. Cir. 1988). In Office of Personnel Management, the Authority held that where a Government-wide regulation was no more than a restatement of management prerogatives contained in section 7106(a) of the Statute, it could not bar negotiation over appropriate arrangements. The Authority held that because requirement 4 was essentially a restatement of section 7106(a)(2)(C) of the Statute it could not bar negotiation of a proposal that was otherwise negotiable as an appropriate arrangement under section 7106(b)(3).
Based on Office of Personnel Management, we reject the Agency's argument that Provision 16 is outside the duty to bargain because it is inconsistent with requirement 4 of FPM chapter 335, subchapter 1-4. Further, based on the Authority's decision in KANG we conclude that Provision 16 is negotiable as an appropriate arrangement under section 7106(b)(3).
XVI. Provision 17
Effective date of this Contract shall be May 1, 1986, for the Preamble and Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 (minus Section 10 of Article 10), 14, 15 and 21. All other Articles will be effective immediately upon approval by the Department of Commerce or within 30 days after the last day of arbitration leading to this Agreement (May 27, 1986).
A. Positions of the Parties
The Agency contends that this provision is nonnegotiable because it is inconsistent with 5 U.S.C. § 7114(c). More specifically, the Agency argues, in essence, that this provision deprives the Agency of its right to 30 days from the date of execution in which to review the agreement. In this regard, the Agency asserts that execution did not occur until the arbitrator had completed his award on June 9, 1986.
The Union asserts that the interest arbitrator's award that is the subject of these cases was subject to an appeal taken under section 7122 of the Statute ("[e]xceptions to arbitral awards") rather than agency head review under section 7114(c) of the Statute. However, the Union contends that, assuming that the award was subject to agency head review under section 7114(c), the Agency waived its right to any delay in implementation of the portion of the arbitrator's award issued on April 29, 1986, by agreeing to a May 1 implementation date and actually implementing the portions of the award then issued on that date. As to the remaining portions of the arbitrator's award, the Union asserts that the spirit of the award was to allow for the 30-day agency head review process and that any discrepancy between that intent and the language of the provision was the result of a miscalculation on the part of the arbitrator as to when he would be able to complete his award.
B. Analysis and Conclusions
Section 7114(c) of the Statute provides that an agency head has "30 days from the date the agreement is executed" to approve or disapprove a collective bargaining agreement executed at the level of recognition. For example, West Point Elementary School, 34 FLRA at 1021. In the absence of approval or disapproval by the agency head within the 30-day period, the agreement becomes effective on the 31st day. Id.
Earlier in this decision we concluded that the date of execution for the agreement to which Provision 17 applies was June 9, 1986. As plainly worded, Provision 17 does not allow for the requisite 30-day period for agency head review running from the date of execution as specified under section 7114(c) of the Statute and is inconsistent with that section. Therefore, it is nonnegotiable. Compare id. (provision that did not accord with the requirements of section 7114(c) was nonnegotiable).
XVII. Provision 18
"Practical" in Article 5, Section 2, shall mean efficient in the context of the work of PTO professionals. Article 5, Section 2, shall not apply to leaving a work area for the purpose of lunch, breaks or consultations by or with Association representatives.
Article 5, section 2, to which this provision refers provides as follows:
Whenever practical, prior to leaving their work area, all Unit employees shall inform their supervisor or designee of the nature of the activity to be transacted, the location of the area they intend to visit, and the approximate time they will be out of the work area.
A. Positions of the Parties
The Agency asserts that Provision 18 makes the provisions of Article 5, section 2, inapplicable to lunch, breaks or consultations with Union representatives. The Agency also contends that Provision 18 vests the employee with the discretion to determine when, in abiding by Article 5, section 2, it is efficient to inform their supervisor that they are leaving the work area. The Agency argues that management's ability to determine the whereabouts of employees is elemental to management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
The Union states that Article 5, section 2, represents a change in past practice in that employees had not in the past been required to report to their supervisors when leaving the work area. The Union asserts that rather than giving employees sole discretion as to when it is practical to report to their supervisors when they are leaving the work area, Provision 18 limits their discretion by defining the term "practical."
The Union states that the exception to the requirement that employees report to their supervisors upon departing the work area that covers consultations with Union representatives is to prevent a chilling effect on the rights of bargaining unit employees. The Union also contends that management's rights do not extend to knowing, "minute by minute, where an employee is." Union reply brief in Case No. 0-NG-1296 at 19.
B. Analysis and Conclusions
Management's right to direct employees under section 7106(a)(2)(A) means the right to supervise and guide employees in the performance of their duties on the job. For example, NTEU and IRS, 28 FLRA at 43. Management's right to assign work under section 7106(a)(2)(B) includes the right to take actions to ensure that the work assigned to employees is accomplished. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 34 FLRA 765, 769 (1990). Management exercises these rights by holding employees accountable for the performance of their work and their use of duty time. Id. at 769-70. Because Provision 18 would limit the Agency's authority to require employees to report to their supervisors prior to leaving their work areas, it directly interferes with management's rights to direct employees and assign work. In so concluding, we note particularly that the Authority has previously held that simply requiring an employee to seek permission prior to leaving the work area on a union-related matter does not interfere with the employee's rights under the Statute. See, for example, Marine Corps Logistics Base, Barstow, California, 23 FLRA 594 (1986); Department of the Treasury, Internal Revenue Service Center, Atlanta, Georgia, 10 FLRA 415 (1982).
The Union makes no assertion that Provision 18 is negotiable as an appropriate arrangement under section 7106(b)(3) and, therefore, we do not address the applicability of that section to this provision. Based on the foregoing, we conclude that Provision 18 is nonnegotiable.
XVIII.Order
The Agency will rescind its disapproval of Provisions 4, sentence 1; 5; 6; 7; 8; 9; 11; 12; 13; 15; and 16.(15) The petitions for review are dismissed insofar as they concern Provisions 1; 2; 3; 4, sentence 2; 10; 14; 17; and 18.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. We do not conclude that where, for instance, the parties become embroiled in litigation over certain subjects in the course of negotiations, they could not agree to sever those subjects and consummate an agreement consisting of those areas that are not in dispute, to be supplemented when their dispute is resolved. That question is not before us here and we do not reach it in this case.
2. We recognize that previously we have treated May 1, 1986, as the date on which a "new basic collective bargaining agreement became effective" between the parties to this case. U.S. Patent and Trademark Office, 39 FLRA 1477, 1479 (1991). That decision was issued pursuant to a remand from the U.S. Court of Appeals for the District of Columbia Circuit in Patent Office Professional Association v. FLRA, 872 F.2d 451 (D.C. Cir. 1989), remanding U.S. Patent and Trademark Office, 31 FLRA 952 (1988). In those decisions, however, the May 1, 1986, "effective" date was not an issue central to the dispute involved. Rather, it was relevant only as factual background and, insofar as the decision in 39 FLRA 1477 was concerned, the scope of the remedy. Thus, the Authority's statement of fact that a new agreement became effective on May 1, 1986, reflected the parties' representations that in conformance with the interest arbitrator's wishes portions of his award were implemented on that date. The validity of an "effective" date of May 1, 1986, for the parties' new basic collective bargaining agreement was neither litigated nor decided. Thus, the statements in those decisions do not establish that the parties' new basic agreement was executed, for purposes of review under section 7114(c) of the Statute, on May 1, 1986.
3. Provisions 1 through 3 are at issue in Case No. 0-NG-1287; Provisions 4 through 18 are at issue in Case No. 0-NG-1296.
4. Perma-Line Corporation of America v. Sign Pictorial and Display Union, 639 F.2d 890 (2d Cir. 1981); NLRB v. Milk Drivers & Dairy Employees, Local 338, 531 F.2d 1162 (2d Cir. 1976).
5. For a discussion of "signatory authority," see Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 784-86 (1991), petition for review filed sub nom. Department of Commerce, Patent and Trademark Office v. FLRA, No. 91-1179 (D.C. Cir. Apr. 17, 1991).
6. Section 7102 of the Statute provides in relevant part:
§ 7102. Employees' rights
Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right--
(1)to act for a labor organization in the capacity of a representative[.]
7. While Provision 3, as written, specifies "no formal evaluations . . . that could result in adverse consequences," the Union's description of how the Agency's performance standards would operate in circumstances where an employee did not have an adequate docket of partially completed cases indicates that any evaluation that strictly applied those standards necessarily would be adverse.
8. Under 5 U.S.C. § 7513(c) an agency may provide, by regulation, for a hearing that may be in lieu of, or in addition to, the opportunity provided employees under 5 U.S.C. § 7513(b)(2) to answer a proposal that an adverse action be taken against them. The record in this case does not indicate whether such hearings have been provided for employees to whom this provision would apply. It is not clear whether this last circumstance is applicable to this case; however, a determination as to its applicability is not necessary to our disposition of Provision 9.
9. Section 7103(a)(2) provides:
(a) For the purpose of this chapter--
. . . . . . .
(2) "employee" means an individual--
(A) employed in an agency; orbut does not include--
(B) whose employment in an agency has ceased because of any unfair labor practice under section 7116 of this title and who has not obtained any other regular and substantially equivalent employment, as determined under regulations prescribed by the Federal Labor Relations Authority;(i) an alien or noncitizen of the United States who occupies a position outside the United States;
(ii) a member of the uniformed services;
(iii) a supervisor or a management official;
(iv) an officer or employee in the Foreign Service of the United States employed in the Department of State, the International Communication Agency, the United States International Development Cooperation Agency, the Department of Agriculture, or the Department of Commerce; or
(v) any person who participates in a strike in violation of section 7311 of this title[.]
10. We reject the Union's argument that the right to "assist" a labor organization is limited to acting as a "representative" of that organization. In our view the right is considerably broader than that. For example, we have recently held that the wearing of a union lapel pin is an exercise of that right in that it "provides an opportunity for employees to assist the Union by publicizing the existence of the Union and demonstrating their support for a labor organization." U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 38 FLRA 701, 712 (1990) (Border Patrol), appeal filed sub nom. Immigration and Naturalization Service v. FLRA, No. 91-70078 (9th Cir. Jan. 28, 1991); see also U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 38 FLRA 1256 (1991), appeal filed sub nom. Immigration and Naturalization Service v. FLRA, No. 91-4153 (5th Cir. Feb. 28, 1991).
11. The Authority does not find otherwise negotiable proposals nonnegotiable based on speculation that the proposal would provide the opportunity for abuse. National Association of Government Employees, Local R14-77 and Veterans Administration Medical Center, Grand Junction, Co., 23 FLRA 547, 549 (1986).
12. The Authority concluded that Provision 1 in Eastern Mapping Agency was nonnegotiable for the additional reasons that it interfered with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B). However, those particular conclusions subsequently have been rejected by the Authority in American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 205-206 (1991) (Merchant Marine Academy).
13. Fort Bragg, on which the Union relies to argue that this portion of the provision does not interfere with management's rights, is distinguishable. Proposal 4 in Fort Bragg required that employees be provided with secure areas only to store personal items. It, like Proposal 2 in EPA I, was limited to requiring measures for the protection of employees' personal property and, consequently, did not come within the ambit of management's right to determine its internal security practices. EPA I, 35 FLRA at 713-15. As noted, Provision 12 in this case applies to measures to protect Agency personnel in addition to employees' personal property.
14. In the reasoning set forth in Congressional Research Service, the Authority relied on provisions of the FPM as they existed at that time. 25 FLRA at 310-11. The FPM has subsequently been revised. It currently does not contain language "strongly encourag[ing]" agencies "to utilize attrition and other potential alternatives" to a RIF as quoted in Congressional Research Service. However, the FPM continues to recommend that agencies consider alternatives, stating that "alternatives are less costly than involuntary actions . . . and also limit the adverse impact on continuing programs." Federal Personnel Manual (FPM) Supplement 351-1, subchapter S1-2 and S1-3.
15. In finding that these provisions are within the duty to bargain, we make no judgment as to their merits.