American Federation of Government Employees, Meat Graders Council, AFL-CIO (Union) and Department of Agriculture, Food Safety and Quality Service, Meat Grading Branch, Washington, DC (Agency)

 



[ v08 p118 ]
08:0118(25)NG
The decision of the Authority follows:


 8 FLRA No. 25
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, MEAT GRADERS COUNCIL,
 AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF AGRICULTURE,
 FOOD SAFETY AND QUALITY SERVICE,
 MEAT GRADING BRANCH,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. 0-NG-51
 
                DECISION AND ORDER OF NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D)
 AND (E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
 STATUTE) (5 U.S.C. 7101-7135).  THE ISSUE PRESENTED IS THE NEGOTIABILITY
 OF SIX UNION PROPOSALS.  /1/ IN DECIDING THAT SOME OF THE DISPUTED
 PROPOSALS IN THIS CASE ARE WITHIN THE DUTY TO BARGAIN, THE AUTHORITY
 MAKES NO JUDGMENT AS TO THEIR MERITS.
 
                             UNION PROPOSAL I
 
    SECTION 9.6 - IN ORDER TO REDUCE THE EXCESSIVE MENTAL STRESS AND
 PHYSICAL INJURY OF
 
    EMPLOYEES WORKING IN FRONT OF CONVEYOR CHAINS WHICH EXCEED 180 BEEF
 PER HOUR, THE EMPLOYER,
 
    FOR SAFETY AND WELL-BEING OF THE EMPLOYEE, WILL HAVE THE GRADER ONLY
 EVALUATE FOR GRADE EVERY
 
    SECOND BEEF THAT PASSES IN FRONT ON THE CHAIN.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL I, AS ALLEGED BY THE AGENCY IS
 INCONSISTENT WITH SECTION 7106(A) OF THE STATUTE.  /2/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL I VIOLATES THE AGENCY'S RIGHTS
 TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106()(2)(A) AND (B)
 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
 THAT THE PETITION FOR REVIEW AS TO UNION PROPOSAL I BE, AND IT HEREBY
 IS, DISMISSED.
 
    REASONS:  THE RECORD BEFORE THE AUTHORITY INDICATES THAT THE PROPOSAL
 WOULD APPLY TO MEAT GRADERS PERFORMING WORK IN PRIVATE SECTOR MEAT
 PACKING PLANTS. MEAT GRADING IS A REIMBURSABLE FUNCTION WHICH THE AGENCY
 IS REQUIRED BY LAW, 7 U.S.C. 1621 AND 1622, TO MAKE AVAILABLE TO PRIVATE
 INDUSTRY FOR USE ON A VOLUNTARY BASIS.  NORMALLY, THE OPERATION OF MEAT
 PACKING PLANTS INVOLVES THE USE OF CONVEYOR CHAINS TO TRANSPORT THE BEEF
 FOR GRADING, THE SPEED OF WHICH IS CONTROLLED BY THE PRIVATE SECTOR
 PLANT MANAGEMENT.  THE AGENCY, HOWEVER, DETERMINES THE NUMBER OF MEAT
 GRADERS NECESSARY TO STAFF ANY GIVEN PLANT OPERATION.
 
    IN THIS CONNECTION, UNION PROPOSAL I EXPLICITLY PROVIDES THAT,
 WHENEVER THE SPEED OF THE CONVEYOR CHAIN, AS SET BY THE MANAGEMENT OF
 THE PLANT, EXCEEDS 180 BEEF CARCASSES PER HOUR, A MEAT GRADER ASSIGNED
 TO THAT CHAIN WILL NOT BE REQUIRED BY AGENCY MANAGEMENT TO GRADE EVERY
 BEEF BUT WILL INSTEAD GRADE EVERY SECOND ONE.  THUS, THE PROPOSAL WOULD
 PRECLUDE THE AGENCY FROM DETERMINING E.G., THAT AN EMPLOYEE MUST GRADE
 EACH BEEF ON THE CONVEYOR CHAIN.  THE AGENCY CONTENDS THAT BY THUS
 PRESCRIBING THE AMOUNT OF WORK WHICH CAN BE REQUIRED OF AN EMPLOYEE, THE
 PROPOSAL IS INCONSISTENT WITH ITS RIGHTS UNDER SECTION 7106(A) OF THE
 STATUTE.
 
    THE RIGHT TO DETERMINE THE QUANTITY OF WORK TO BE PERFORMED BY
 EMPLOYEES, I.E., THE LEVEL OF OUTPUT TO BE REQUIRED, IS ENCOMPASSED
 WITHIN MANAGEMENT'S STATUTORY RIGHTS TO DIRECT EMPLOYEES AND ASSIGN
 WORK.  NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
 BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), APPEAL DOCKETED SUB
 NOM. NATIONAL TREASURY EMPLOYEES UNION V. FEDERAL LABOR RELATIONS
 AUTHORITY, NO. 80-1895 (D. C. CIR. AUGUST 4, 1980).  IN THAT CASE, THE
 PROPOSAL AT ISSUE PRESCRIBED THE AMOUNT OF WORK EMPLOYEES MUST PRODUCE
 IN ORDER TO RETAIN THEIR JOBS.  THE AUTHORITY HELD THAT BY THUS
 ESTABLISHING THE OUTPUT WHICH THE AGENCY COULD REQUIRE OF EMPLOYEES IN
 SUCH CIRCUMSTANCES, THE PROPOSAL DIRECTLY INTERFERED WITH THE RIGHTS OF
 MANAGEMENT TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106(A)(2)
 OF THE STATUTE.  SIMILARLY, BY PRESCRIBING HEREIN THE MAXIMUM AMOUNT OF
 WORK AN EMPLOYEE CAN BE REQUIRED TO PERFORM WHEN THE CONVEYOR CHAIN
 EXCEEDS 180 CARCASSES PER HOUR, UNION PROPOSAL I ESTABLISHES A
 LIMITATION ON THE LEVEL OF OUTPUT WHICH THE AGENCY CAN REQUIRE OF AN
 EMPLOYEE.  THEREFORE, FOR THE REASONS SET FORTH IN BUREAU OF THE PUBLIC
 DEBT, UNION PROPOSAL I IS OUTSIDE THE DUTY TO BARGAIN.
 
                             UNION PROPOSAL II
 
    SECTION 9.7 - THE EMPLOYER AGREES TO FURNISH PROTECTIVE CLOTHING SUCH
 AS A COOLER COAT AND
 
    GLOVES TO THE EMPLOYEE.
 
                            UNION PROPOSAL III
 
    SECTION 9.8 - THE EMPLOYER WILL PROVIDE FROCKS FOR EMPLOYEES.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTIONS ARE WHETHER UNION PROPOSAL II, AS ALLEGED BY THE
 AGENCY, IS INCONSISTENT WITH LAW (29 U.S.C. 668(A)), AND GOVERNMENT-WIDE
 REGULATION (29 CFR 1910.132);  AND WHETHER UNION PROPOSAL III, AS
 ALLEGED BY THE AGENCY, IS INCONSISTENT WITH LAW (5 U.S.C.  5901), AND
 GOVERNMENT-WIDE REGULATION (OMB CIRCULAR A-30, REVISED, AUGUST 20,
 1966).
 
    CONCLUSION AND ORDER:  UNION PROPOSALS II AND III ARE CONSISTENT WITH
 LAW AND GOVERNMENT-WIDE REGULATION.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
 IT IS ORDERED THAT THE AGENCY, UPON REQUEST (OR AS OTHERWISE AGREED TO
 BY THE PARTIES), BARGAIN CONCERNING THE PROPOSALS.
 
    REASONS:  WITH RESPECT TO UNION PROPOSAL II, THE STATUTORY /3/ AND
 REGULATORY /4/ PROVISIONS CITED BY THE AGENCY PROVIDE, IN ESSENCE, THAT
 THE HEAD OF AN AGENCY SHALL, AFTER CONSULTATION WITH EMPLOYEE
 REPRESENTATIVES, SUPPLY EMPLOYEES WITH PROTECTIVE CLOTHING WHEREVER IT
 IS NECESSARY TO PROTECT THEM FROM HAZARDS OF THE WORK ENVIRONMENT.
 HENCE, THE STATUTORY AND REGULATORY PROVISIONS CITED BY THE AGENCY LEAVE
 THE DECISION AS TO WHETHER TO PROVIDE PROTECTIVE CLOTHING TO THE
 DISCRETION OF THE AGENCY.
 
    IN NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE
 SERVICE, NEW ORLEANS DISTRICT, 3 FLRA NO. 118(1980), THE AUTHORITY HELD
 NEGOTIABLE A PROPOSAL WHICH REQUIRED THE AGENCY TO RETAIN PARKING SPACES
 FOR EMPLOYEES' VEHICLES, WHICH SPACES WERE CONTROLLED BY THE GENERAL
 SERVICES ADMINISTRATION.  CONTRARY TO THE AGENCY'S CONTENTIONS, THE
 AUTHORITY FOUND THAT THE DISPUTED MATTER WAS WITHIN THE DISCRETION OF
 THE AGENCY UNDER THE FEDERAL PROPERTY MANAGEMENT REGULATIONS AND THAT
 NOTHING IN THOSE REGULATIONS OR UNDERLYING STATUTORY PROVISIONS
 SPECIFICALLY PRECLUDED THE AGENCY FROM EXERCISING THAT DISCRETION
 THROUGH NEGOTIATIONS.
 
    THE RELEVANT CIRCUMSTANCES OF THE INSTANT CASE ARE NOT MATERIALLY
 DIFFERENT FROM THOSE OF THE NEW ORLEANS DISTRICT CASE.  ASSUMING,
 WITHOUT DECIDING, THAT 29 CRF 1910.132 CONSTITUTES A GOVERNMENT-WIDE
 REGULATION WITHIN THE MEANING OF SECTION 7117 OF THE STATUTE, /5/ THE
 AGENCY NEVERTHELESS HAS CITED NO PROVISION OF THAT REGULATION, OR OF
 LAW, WHICH WOULD PRECLUDE THE AGENCY FROM EXERCISING THROUGH
 NEGOTIATIONS ITS DISCRETION TO SUPPLY PROTECTIVE CLOTHING TO EMPLOYEES.
 THUS, FOR THE REASONS MORE FULLY SET FORTH IN THE NEW ORLEANS DISTRICT
 CASE, SUPRA, THE AUTHORITY FINDS UNION PROPOSAL II IS WITHIN THE DUTY TO
 BARGAIN UNDER THE STATUTE.
 
    TURNING TO UNION PROPOSAL III, THE STATUTORY /6/ AND REGULATORY /7/
 PROVISIONS CITED BY THE AGENCY AS A BAR TO NEGOTIATIONS PROVIDE THAT AN
 AGENCY WILL SUPPLY UNIFORMS TO EMPLOYEES WHENEVER THE AGENCY HEAD
 DETERMINES THAT THE WEARING OF A UNIFORM IS A REQUIREMENT OF AN
 EMPLOYEE'S JOB AND THAT THE BEST INTERESTS OF THE GOVERNMENT ARE SERVED
 BY SUPPLYING SUCH UNIFORMS.  THAT IS, ONCE AGAIN, THE STATUTORY AND
 REGULATORY PROVISIONS HERE INVOLVED DO NOT PRECLUDE AN AGENCY FROM
 DETERMINING THAT WEARING A UNIFORM IS A REQUIREMENT OF A JOB AND
 PROVIDING EMPLOYEES WITH FROCKS AS THE UNION PROPOSES, BUT LEAVE THE
 MATTER TO THE DISCRETION OF THE AGENCY HEAD.  /8/ .  THUS, EVEN ASSUMING
 WITHOUT DECIDING, THAT THE PROVISIONS OF THE OMB CIRCULAR RELIED ON BY
 THE AGENCY CONSTITUTE GOVERNMENT-WIDE REGULATIONS WITHIN THE MEANING OF
 SECTION 7117 OF THE STATUTE, UNION PROPOSAL III IS WITHIN THE AGENCY'S
 DUTY TO BARGAIN UNDER THE STATUTE.  /9/
 
                             UNION PROPOSAL IV
 
    SECTION 9.12 - TO COMPENSATE MEAT GRADERS FOR WORKING IN FRIGID
 CONDITIONS, PREMIUM PAY
 
    DIFFERENTIAL WILL BE PAID.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PETITION FOR REVIEW AS TO UNION PROPOSAL
 IV CONCERNS MATTERS MORE APPROPRIATELY RESOLVED THROUGH THE
 CLASSIFICATION APPEAL PROCESS AS, IN EFFECT, ALLEGED BY THE AGENCY AND,
 THUS, IS NOT PROPERLY BEFORE THE AUTHORITY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PETITION FOR REVIEW AS TO UNION PROPOSAL
 IV DOES NOT MEET THE CONDITIONS FOR REVIEW OF A NEGOTIABILITY QUESTION
 BEFORE THE AUTHORITY.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
 THAT THE PETITION FOR REVIEW AS TO UNION PROPOSAL IV BE, AND IT HEREBY
 IS, DISMISSED.
 
    REASONS:  UNION PROPOSAL IV WOULD REQUIRE THE AGENCY TO PAY MEAT
 GRADERS AN ENVIRONMENTAL HAZARD DIFFERENTIAL BECAUSE OF THE FRIGID
 CONDITIONS UNDER WHICH THEY WORK.  THE AGENCY ARGUES, AND THE UNION
 DISPUTES, THAT WORKING IN FRIGID CONDITIONS WAS TAKEN INTO ACCOUNT IN
 THE CLASSIFICATION OF MEAT GRADER POSITIONS AND, THEREFORE, UNDER 5 CFR
 550.904, /10/ THE AGENCY IS PROHIBITED FROM PAYING AN ENVIRONMENTAL
 HAZARD DIFFERENTIAL FOR SUCH DUTIES, AS THE PROPOSAL WOULD REQUIRE.
 
    IN THIS REGARD, THE PROPOSAL BEARS NO MATERIAL DIFFERENCE FROM THE
 PROPOSAL AT ISSUE IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 862
 AND TOOELE ARMY DEPOT, TOOELE, UTAH, 3 FLRA NO. 67(1980), WHICH REQUIRED
 THE PAYMENT OF AN ENVIRONMENTAL HAZARD DIFFERENTIAL TO CERTAIN SPECIFIED
 CATEGORIES OF EMPLOYEES.  THE AUTHORITY DECIDED THE PROPOSAL IN THAT
 CASE RAISED CLASSIFICATION ISSUES (IN PART, WHETHER THE ALLEGED HAZARDS
 HAD BEEN TAKEN INTO ACCOUNT IN CLASSIFYING THE SPECIFIED POSITIONS),
 WHICH WERE MATTERS THAT MUST BE RESOLVED THROUGH THE CLASSIFICATION
 APPEALS PROCESS AS A CONDITION PRECEDENT TO DISPOSITION OF ANY
 NEGOTIABILITY APPEAL. FOR THE REASONS SET FORTH IN GREATER DETAIL IN
 TOOELE ARMY DEPOT, THE AUTHORITY FINDS THAT THE UNION'S APPEAL HEREIN AS
 TO UNION PROPOSAL IV, WHICH CONCERNS MATTERS RELATED TO THE
 CLASSIFICATION OF MEAT GRADERS' POSITIONS, WAS PREMATURELY FILED. HENCE,
 THE APPEAL MUST BE DISMISSED WITHOUT PREJUDICE TO RENEWAL BY THE UNION
 OF ITS CONTENTION THAT THE MATTER HERE IN DISPUTE IS NEGOTIABLE IF IT IS
 DETERMINED, THROUGH CLASSIFICATIONS APPEALS PROCEDURES, THAT THE ALLEGED
 HAZARDS HAVE NOT BEEN TAKEN INTO ACCOUNT IN THE CLASSIFICATION OF THE
 POSITION.  IN THAT EVENT, THE PROPOSAL WOULD NOT INVOLVE MATTERS
 RELATING TO THE CLASSIFICATION OF POSITIONS, WHICH ARE NOT CONDITIONS OF
 EMPLOYMENT UNDER SECTION 7103(A)(14)(B) OF THE STATUTE.  /11/
 
                             UNION PROPOSAL V
 
    SECTION 12.1 - THE EMPLOYER AGREES TO NOTIFY THE UNION OF ANY
 IMPENDING REDUCTION-IN-FORCE
 
    OR REORGANIZATION AT LEAST 120 DAYS IN ADVANCE OF NOTIFICATION TO
 EMPLOYEES WITH SUFFICIENT
 
    INFORMATION IN ORDER TO ALLOW THE UNION TIME TO NEGOTIATE THE IMPACT
 AND/OR PROCEDURE.  THE
 
    UNION SHALL NOTIFY THE EMPLOYER WITHIN FIFTEEN (15) DAYS AS TO
 WHETHER THEY WISH TO NEGOTIATE
 
    THE IMPACT.  THE EMPLOYER AGREES TO MEET WITHIN 15 DAYS AFTER SUCH
 REQUEST TO NEGOTIATE THE
 
    IMPACT AND/OR PROCEDURES.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL V, AS, IN EFFECT, ALLEGED BY
 THE AGENCY, IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT IS INCONSISTENT
 WITH AN AGENCY REGULATION FOR WHICH A COMPELLING NEED EXISTS UNDER
 SECTION 7117(A)(2) OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE AGENCY HAS FILED TO SUPPORT ITS ALLEGATION
 THAT UNION PROPOSAL V IS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
 7117(A)(2) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
 THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
 ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
 THE PARTIES) BARGAIN ON THE PROPOSAL.
 
    REASONS:  THE UNION STATES, AND THE AGENCY IMPLICITLY ACKNOWLEDGES IN
 ITS STATEMENT OF POSITION, THAT THE AGENCY ALLEGED UNION PROPOSAL V IS
 OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7117(A)(2) IN RELIANCE UPON AN
 AGENCY REGULATION FOR WHICH A COMPELLING NEED EXISTS.  THE AGENCY
 CONTENDS, HOWEVER, THAT THE UNION'S APPEAL AS TO THE INSTANT PROPOSAL IS
 ALSO PREMATURE UNDER THE RULES AND REGULATIONS OF THE FEDERAL LABOR
 RELATIONS COUNCIL, WHICH IT MAINTAINS WERE CONTROLLING AT THE TIME THE
 APPEAL AROSE, SINCE THE UNION DID NOT REQUEST AN EXCEPTION TO THE
 REGULATION OR REFER THE MATTER TO THE AGENCY HEAD FOR A DETERMINATION AS
 TO THE COMPELLING NEED FOR THE REGULATION.  /12/ THE AGENCY POSITION
 CANNOT BE SUSTAINED.
 
    ON JULY 30, 1979, THE AUTHORITY ISSUED INTERIM REGULATIONS GOVERNING
 APPEALS RELATING, AMONG OTHER THINGS, TO ISSUES OF COMPELLING NEED FOR
 AGENCY REGULATIONS (44 F.R. 44766).  BETWEEN THE EFFECTIVE DATE OF THE
 STATUTE, JANUARY 11, 1979, AND THE EFFECTIVE DATE OF THE INTERIM
 REGULATIONS, THE RULES OF THE FEDERAL LABOR RELATIONS COUNCIL REMAINED
 IN EFFECT UNLESS, AS PROVIDED IN SECTION 7135(B) OF THE STATUTE,
 SUPERSEDED BY SPECIFIC PROVISIONS OF THE STATUTE.  /13/
 
    IN THIS REGARD, VARIOUS PROVISIONS OF THE STATUTE SUPERSEDED SECTION
 2411.22(B) OF THE COUNCIL'S RULES AS FOLLOWS:  SECTION 7117(A)(2) OF THE
 STATUTE PROVIDES THAT THE DUTY TO BARGAIN EXTENDS TO MATTERS WHICH ARE
 THE SUBJECT OF ANY AGENCY RULE OR REGULATION ONLY IF NO COMPELLING NEED
 EXISTS FOR THE REGULATION AS DETERMINED BY THE AUTHORITY.  /14/ THE
 JURISDICTION OF THE AUTHORITY TO RESOLVE ISSUES AS TO COMPELLING NEED IS
 SET FORTH IN SECTION 7105(A)(2)(D) /15/ AND SECTION 7117(B) OF THE
 STATUTE.  /16/ SPECIFICALLY, SECTION 7117(B)(2)(A), BY PROVIDING FOR AN
 AGENCY AT ITS OWN INITIATIVE TO NOTIFY THE AUTHORITY IN WRITING THAT NO
 COMPELLING NEED EXISTS FOR A REGULATION APPEALED BY A UNION TO THE
 AUTHORITY FOR A DETERMINATION, HAS SUPERSEDED SECTION 2411.22(B) OF THE
 COUNCIL'S RULES WHICH UNDER LIKE CIRCUMSTANCES REQUIRED THE UNION TO
 REFER THE MATTER TO THE AGENCY HEAD AND TO REQUEST AN EXCEPTION TO ANY
 REGULATION CITED AS A BAR TO NEGOTIATION.  THEREFORE, CONTRARY TO THE
 AGENCY'S POSITION HEREIN, SECTION 2411.22(B) OF THE COUNCIL'S RULES WAS
 NOT IN EFFECT AT THE TIME THE APPEAL IN THE INSTANT CASE WAS FILED AND
 THE ISSUE OF THE COMPELLING NEED FOR THE AGENCY'S REGULATION IS PROPERLY
 BEFORE THE AUTHORITY.
 
    UNDER THE AUTHORITY'S DECISION IN AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1928 AND DEPARTMENT OF THE NAVY, NAVAL AIR
 DEVELOPMENT CENTER, WARMINSTER, PENNSYLVANIA, 2 FLRA 450(1980), THE
 AGENCY BEARS THE BURDEN OF COMING FORWARD WITH AFFIRMATIVE SUPPORT FOR
 ITS ASSERTION OF COMPELLING NEED.  IN PARTICULAR, THE AUTHORITY STATED
 AS FOLLOWS (AT 454 - 455 OF THE DECISION):
 
    (I)N A PROCEEDING BEFORE THE AUTHORITY SUCH AS THE INSTANT CASE
 INVOLVING AN ALLEGATION BY
 
    AN AGENCY THAT A UNION PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 UNDER SECTION 7117(A)(2) OF
 
    THE STATUTE BECAUSE OF AN INTERNAL AGENCY REGULATION RAISED
 SPECIFICALLY FOR THE FIRST TIME IN
 
    THE AGENCY'S STATEMENT OF POSITION, THE AGENCY BEARS THE BURDEN OF
 COMING FORWARD WITH
 
    AFFIRMATIVE SUPPORT FOR ITS ASSERTION THAT THE REGULATION IN QUESTION
 BARS NEGOTIATIONS
 
    BECAUSE, IMPLICITLY, A COMPELLING NEED EXISTS FOR THE REGULATION.
 THIS IS CONSISTENT WITH THE
 
    REQUIREMENT IN THE AUTHORITY'S RULES CONCERNING THE REVIEW OF
 NEGOTIABILITY ISSUES THAT AN
 
    AGENCY'S STATEMENT OF POSITION FILED WITH THE AUTHORITY SHALL SET
 FORTH "IN FULL ITS POSITION
 
    ON ANY MATTERS RELEVANT TO THE PETITION WHICH IT WISHES THE AUTHORITY
 TO CONSIDER IN REACHING
 
    ITS DECISION, INCLUDING A FULL AND DETAILED STATEMENT OF ITS REASONS
 SUPPORTING THE
 
    ALLEGATION." FURTHERMORE, WITH REGARD TO ITS OWN REGULATIONS, THE
 AGENCY OBVIOUSLY SHOULD
 
    HAVE THE GREATEST FAMILIARITY WITH THE CIRCUMSTANCES UNDER WHICH THE
 PARTICULAR REGULATION
 
    INVOLVED WAS DEVELOPED AND ISSUED AND THE PURPOSE IT WAS INTENDED TO
 SERVE.  CONSEQUENTLY,
 
    SINCE THE AGENCY IS RELYING ON THE REGULATION TO BAR NEGOTIATIONS ON
 AN OTHERWISE NEGOTIABLE
 
    PROPOSAL, THE AGENCY PROPERLY IS REQUIRED TO ADDUCE SUCH RELEVANT
 CIRCUMSTANCES IN THE
 
    STATEMENT OF ITS POSITION BEFORE THE AUTHORITY.
 
    IN THIS CASE, HOWEVER, THE AGENCY HAS NOT SUPPLIED ANY EVIDENCE TO
 SUPPORT ITS ALLEGATION OF COMPELLING NEED;  RATHER, THE AGENCY
 APPARENTLY RELIES ONLY ON ITS CONTENTIONS AS TO THE APPLICABILITY OF THE
 COUNCIL'S RULES.  THEREFORE, THE AGENCY HAS FAILED ADEQUATELY TO SUPPORT
 ITS ALLEGATION THAT UNION PROPOSAL V IS OUTSIDE THE DUTY TO BARGAIN
 UNDER SECTION 7117(A)(2) OF THE STATUTE BECAUSE IT CONFLICTS WITH AN
 INTERNAL AGENCY REGULATION FOR WHICH A COMPELLING NEED EXISTS.
 
                             UNION PROPOSAL VI
 
    SECTION 26.1 - IN THE INTEREST OF THE GOVERNMENT AND EMPLOYEE, A
 CHANGE IS TO BE
 
    IMPLEMENTED THAT WILL ALLOW MILEAGE PAYMENTS TO CERTAIN EMPLOYEES
 PORTAL TO PORTAL WHETHER
 
    CARRYING GOVERNMENT EQUIPMENT OR NOT, AND WHETHER WORK IS PERFORMED
 AT ONE OR MORE DUTY SITES
 
    A DAY OR NOT.  THESE MILEAGE PAYMENTS ARE TO BE MADE ONLY TO THE
 ABOVE-MENTIONED EMPLOYEES
 
    THAT ARE ROTATED IN THEIR DUTY ASSIGNMENTS, AND TO EMPLOYEES WHO
 NORMALLY WORK AT ONE DUTY
 
    SITE BUT OCCASIONALLY ARE EXPECTED TO REPORT TO OTHER DUTY LOCATIONS
 DURING THE SAME DAY.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER UNION PROPOSAL VI IS INCONSISTENT WITH LAW
 AND GOVERNMENT-WIDE REGULATION UNDER SECTION 711(A)(1) OF THE STATUTE
 OR, AS ALLEGED BY THE AGENCY, IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT
 IS INCONSISTENT WITH AN AGENCY REGULATION FOR WHICH A COMPELLING NEED
 EXISTS UNDER SECTION 7117(A)(2) OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSAL VI IS CONSISTENT WITH LAW AND
 GOVERNMENT-WIDE REGULATION UNDER SECTION 7117(A) OF THE STATUTE AND THE
 AGENCY HAS FAILED TO SUPPORT ITS ALLEGATION THAT THE PROPOSAL IS OUTSIDE
 THE DUTY TO BARGAIN UNDER SECTION 7117(A)(2) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY UPON
 REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING
 THE PROPOSAL.
 
    REASONS:  UNION PROPOSAL VI CONFORMS TO THE GUIDANCE SET FORTH IN THE
 COMPTROLLER GENERAL'S DECISION IN MATTER OF DEPARTMENT OF AGRICULTURE
 MEAT GRADERS - MILEAGE, B-131810, JANUARY 3, 1980.  /17/ IN THAT
 DECISION, THE COMPTROLLER GENERAL, RESPONDING TO A REQUEST FOR A RULING
 ON "PORTAL TO PORTAL" MILEAGE PAYMENTS TO MEAT GRADERS WHEN EQUIPMENT
 AND SUPPLIES ARE TRANSPORTED IN SITUATIONS WHERE WORK IS PERFORMED AT
 ONLY ONE LOCATION, STATED AS FOLLOWS (AT 8 OF THE DECISION):
 
    (O)THER THAN ALLOWING MILEAGE FOR TRAVEL FROM HIS RESIDENCE TO
 OFFICIAL HEADQUARTERS, AN
 
    EMPLOYEE'S ENTITLEMENT TO MILEAGE FOR TRAVEL, WHETHER TO ONE OR MORE
 DUTY SITES IN A DAY AND
 
    WHETHER EQUIPMENT IS TRANSPORTED OR NOT, IS GOVERNED BY SUCH
 REGULATIONS AS AN AGENCY
 
    PRESCRIBES, GIVING DUE CONSIDERATION TO THE INTERESTS OF THE
 GOVERNMENT AND THE EMPLOYEE.
 
    THEREFORE, THE DEPARTMENT OF AGRICULTURE HAS AUTHORITY TO PAY MILEAGE
 FOR HOME TO WORK AND
 
    RETURN TRAVEL WHERE EQUIPMENT IS TRANSPORTED AND WHERE THE TRAVEL IS
 TO ONLY ONE DUTY SITE
 
    WHICH IS NOT THE EMPLOYEE'S HEADQUARTERS.  WHETHER THE DEPARTMENT
 MUST PAY MILEAGE FOR SUCH
 
    TRAVEL, HOWEVER DEPENDS UPON WHAT THE ACTUAL POLICY OF THE DEPARTMENT
 IS AT THE TIME THE
 
    TRAVEL IS PERFORMED.  THE RECORD SHOWS THAT THE DEPARTMENT DID NOT IN
 FACT HAVE A POLICY OF
 
    PAYING MILEAGE TO EMPLOYEES TRAVELING TO ONLY ONE WORKSITE DURING THE
 PERIOD IN
 
    QUESTION.  RATHER, MILEAGE APPEARS TO HAVE BEEN LIMITED TO CASES
 WHERE EMPLOYEES TRAVELED TO
 
    TWO OR MORE DUTY SITES REGARDLESS OF WHETHER THEY CARRIED EQUIPMENT
 AND SUPPLIES.  THESE
 
    POLICIES BIND THE DEPARTMENT OF AGRICULTURE AS TO TRAVEL PERFORMED IN
 THE PAST.  THE
 
    DEPARTMENT, HOWEVER, MAY AMEND ITS POLICY IN THE FUTURE AND AUTHORIZE
 MILEAGE PAYMENTS
 
    CONSISTENT WITH THE ABOVE.
 
    THUS, THE DECISION OF THE COMPTROLLER GENERAL RECOGNIZED THAT THE
 AGENCY HAS DISCRETION UNDER APPLICABLE LAW AS TO THE PAYMENT OF MILEAGE
 FROM RESIDENCE TO DUTY STATION AND RETURN, I.E., "PORTAL TO PORTAL,"
 WITHOUT REGARD TO WHETHER AN EMPLOYEE TRANSPORTS GOVERNMENT EQUIPMENT
 OR
 WHETHER AN EMPLOYEE TRAVELS TO ONLY ONE DUTY STATION AS LONG AS THAT
 DUTY STATION IS NOT THE EMPLOYEE'S HEADQUARTERS.
 
    UNION PROPOSAL VI IS CLEARLY CONCERNED WITH THE VERY CIRCUMSTANCES
 DISCUSSED IN THE QUOTED DECISION OF THE COMPTROLLER GENERAL.  FURTHER,
 THERE IS NOTHING IN THE RECORD OF THIS CASE TO SUGGEST THAT THE PROPOSAL
 IS INTENDED TO BE IMPLEMENTED IN A MANNER WHICH IS INCONSISTENT WITH LAW
 AND REGULATION, I.E., TO AUTHORIZE PAYMENT OF MILEAGE TO COVER TRAVEL
 FROM EMPLOYEES' RESIDENCES TO THEIR OFFICIAL HEADQUARTERS.  THEREFORE,
 SINCE THE AGENCY HAS DISCRETION CONCERNING SUCH MILEAGE PAYMENTS, AND
 THE AGENCY HAS NOT NOT ADVERTED TO NOR DOES RESEARCH REVEAL ANY LAW OR
 GOVERNMENT-MADE REGULATION WHICH WOULD PRECLUDE THE EXERCISE OF SUCH
 DISCRETION THROUGH NEGOTIATION OF THE UNION'S PROPOSAL, THE PROPOSAL IS
 CONSISTENT WITH LAW AND GOVERNMENT-WIDE REGULATION AND, IN THIS REGARD,
 IS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7117(A)(1) OF THE STATUTE.
 SEE NEW ORLEANS DISTRICT, SUPRA.
 
    MOREOVER, AS TO THE AGENCY'S ALLEGATION THAT UNION PROPOSAL VI IS
 BARRED FROM NEGOTIATION BY AN AGENCY REGULATION FOR WHICH A COMPELLING
 NEED EXISTS UNDER SECTION 7117(A)(2) OF THE STATUTE, FOR WHICH THE
 REASONS SET FORTH IN CONNECTION WITH DISPOSITION OF UNION PROPOSAL V,
 SUPRA, THE AGENCY HAS FAILED TO SUPPORT ITS ALLEGATION AND, THUS, THE
 INSTANT PROPOSAL IS, IN THIS REGARD, WITHIN THE DUTY TO BARGAIN.  /18/
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 11, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE UNION'S PETITION FOR REVIEW INCLUDED AN ADDITIONAL PROPOSAL
 ENTITLED SECTION 10.1.  HOWEVER, IN ITS STATEMENT OF POSITION, THE
 AGENCY INDICATED THAT IT DID NOT CONSIDER THE PROPOSAL NONNEGOTIABLE.
 THEREFORE, THE DISPUTE BETWEEN THE PARTIES AS TO THIS PROPOSAL HAS BEEN
 RENDERED MOOT, AND IT WILL NOT BE FURTHER CONSIDERED HEREIN.
 
    /2/ SECTION 7106(A) OF THE STATUTE (5 U.S.C. 7106(A)) PROVIDES, IN
 RELEVANT PART, AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   *          *          *          *
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED(.)
 
    /3/ 29 U.S.C. 668(A) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 668.  PROGRAMS OF FEDERAL AGENCIES
 
    (A) IT SHALL BE THE RESPONSIBILITY OF THE HEAD OF EACH FEDERAL AGENCY
 TO ESTABLISH AND
 
    MAINTAIN AN EFFECTIVE AND COMPREHENSIVE OCCUPATIONAL SAFETY AND
 HEALTH PROGRAM WHICH IS
 
    CONSISTENT WITH THE STANDARDS PROMULGATED UNDER SECTION 655 OF THIS
 TITLE.  THE HEAD OF EACH
 
    AGENCY SHALL (AFTER CONSULTATION WITH REPRESENTATIVES OF THE
 EMPLOYEES THEREOF)--
 
   .          .          .          .
 
 
    (2) ACQUIRE, MAINTAIN, AND REQUIRE THE USE OF SAFETY EQUIPMENT,
 PERSONAL PROTECTIVE
 
    EQUIPMENT, AND DEVICES REASONABLY NECESSARY TO PROTECT EMPLOYEES(.)
 
    /4/ 29 CFR 1910.132 PROVIDES AS FOLLOWS:
 
    SEC. 1910.132 GENERAL REQUIREMENTS
 
    (A) APPLICATION.  PROTECTIVE EQUIPMENT, INCLUDING PERSONAL PROTECTIVE
 EQUIPMENT FOR EYES,
 
    FACE, HEAD, AND EXTREMITIES, PROTECTIVE CLOTHING, RESPIRATORY
 DEVICES, AND PROTECTIVE SHIELDS
 
    AND BARRIERS, SHALL BE PROVIDED, USED, AND MAINTAINED IN A SANITARY
 AND RELIABLE CONDITION
 
    WHEREVER IT IS NECESSARY BY REASON OF HAZARDS OF PROCESSES OR
 ENVIRONMENT, CHEMICAL HAZARDS,
 
    RADIOLOGICAL HAZARDS, OR MECHANICAL IRRITANTS ENCOUNTERED IN A MANNER
 CAPABLE OF CAUSING
 
    INJURY OR IMPAIRMENT IN THE FUNCTION OF ANY PART OF THE BODY THROUGH
 ABSORPTION, INHALATION OR
 
    PHYSICAL CONTACT.
 
    /5/ SECTION 7117(A)(1) OF THE STATUTE (5 U.S.C. 7117(A)(1)) PROVIDES
 AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION ONLY IF THE RULE
 
    OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    /6/ 5 U.S.C. 5901 PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 5901.  UNIFORM ALLOWANCES
 
    (A) THERE IS AUTHORIZED TO BE APPROPRIATED ANNUALLY TO EACH AGENCY OF
 THE GOVERNMENT OF THE
 
    UNITED STATES, INCLUDING A GOVERNMENT-OWNED CORPORATION, AND OF THE
 GOVERNMENT OF THE DISTRICT
 
    OF COLUMBIA, ON A SHOWING OF NECESSITY OR DESIRABILITY, AN AMOUNT NOT
 TO EXCEED $125
 
    MULTIPLIED BY THE NUMBER OF EMPLOYEES OF THE AGENCY WHO ARE REQUIRED
 BY REGULATION OR STATUTE
 
    TO WEAR A PRESCRIBED UNIFORM IN THE PERFORMANCE OF OFFICIAL DUTIES
 AND WHO ARE NOT BEING
 
    FURNISHED WITH THE UNIFORM.  THE HEAD OF THE AGENCY CONCERNED, OUT OF
 FUNDS MADE AVAILABLE BY
 
    THE APPROPRIATION, SHALL--
 
    (1) FURNISH TO EACH OF THESE EMPLOYEES A UNIFORM AT A COST NOT TO
 EXCEED $125 A YEAR;  OR
 
    (2) PAY TO EACH OF THESE EMPLOYEES AN ALLOWANCE FOR A UNIFORM NOT TO
 EXCEED $125 A YEAR.
 
    /7/ OMB CIRCULAR A030, REVISED, AUGUST 20, 1966, PROVIDES, IN
 RELEVANT PART, AS FOLLOWS:
 
    1.  PURPOSE.  THE FEDERAL EMPLOYEES UNIFORM ALLOWANCE ACT OF 1954, AS
 AMENDED, (5
 
    U.S.C. 2131-2133) PROVIDES FOR FURNISHING OF UNIFORMS OR FOR PAYMENT
 OF UNIFORM ALLOWANCES TO
 
    CIVILIAN EMPLOYEES OF THE GOVERNMENT WHO ARE REQUIRED TO WEAR
 UNIFORMS.
 
   .          .          .          .
 
 
    2.  COVERAGE.  PROVISIONS OF THE ACT APPLY TO EACH AGENCY OF THE
 GOVERNMENT OF THE UNITED
 
    STATES OR OF THE DISTRICT OF COLUMBIA, INCLUDING GOVERNMENT-OWNED
 CORPORATIONS.
 
   .          .          .          .
 
 
    4.  INITIAL ACTIONS AND DECISIONS.
 
   .          .          .          .
 
 
    B.  DECIDING WHETHER TO FURNISH UNIFORMS OR TO PAY ALLOWANCES.
 
    WHENEVER THE AGENCY HEAD DETERMINES THAT A GROUP OF EMPLOYEES IS
 REQUIRED TO WEAR A
 
    UNIFORM, HE SHALL DETERMINE WHETHER THE BEST INTERESTS OF THE
 GOVERNMENT WILL BE SERVED BY
 
    FURNISHING GOVERNMENT-OWNED UNIFORMS TO EMPLOYEES, OR BY PAYING
 UNIFORM ALLOWANCES FOR
 
    UNIFORMS PROCURED BY EMPLOYEES OR BY A COMBINATION OF BOTH METHODS.
 . . . THE DECISION MAY BE
 
    EFFECTIVE AS OF THE DATE IT IS MADE PROVIDED FUNDS USABLE FOR THIS
 PURPOSE ARE
 
    AVAILABLE;  OTHERWISE, THE DECISION MAY BE EFFECTIVE WHEN FUNDS
 BECOME AVAILABLE.
 
    /8/ THERE IS NO DISPUTE BETWEEN THE PARTIES THAT FROCKS CONSTITUTE
 "UNIFORMS" WITHIN THE MEANING OF LAW AND REGULATION.  CF.  NATIONAL
 TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE, REGION VIII, SAN
 FRANCISCO, CALIFORNIA, 2 FLRA 254(1979) (AGENCY REQUIREMENT THAT
 EMPLOYEES WEAR NAMEPLATES AS A PART OF THEIR UNIFORMS HELD OUTSIDE THE
 DUTY TO BARGAIN UNDER SECTION 7106(B)(1) OF THE STATUTE ON GROUNDS THAT,
 IN THE CIRCUMSTANCES OF THAT CASE, NAMEPLATES WERE A "MEANS" OF
 PERFORMING THE AGENCY'S WORK).
 
    /9/ IN THIS REGARD, IF THE AGENCY IS CORRECT IN ITS ASSERTION THAT
 THE PROPOSAL IS LEGALLY UNENFORCEABLE UNLESS THE AGENCY EMBODIES IN A
 REGULATION ITS DETERMINATION THAT MEAT GRADERS MUST WEAR A UNIFORM, SEE,
 E.G., COMPTROLLER GENERAL DECISION B-191761 (SEPTEMBER 22, 1978),
 AGREEMENT BY THE AGENCY TO THE PROPOSAL WOULD NECESSITATE THE
 PROMULGATION OF A VALID REGULATION SETTING FORTH SUCH A REQUIREMENT.
 SEE SECTION 7114(B)(5) OF THE STATUTE (5 U.S.C.  7114(B)(5)).
 
    FURTHER, WITH RESPECT TO THE POTENTIAL SUPPLYING OF FROCKS TO
 EMPLOYEES, THE AUTHORITY NOTES THAT THE REGULATIONS IMPLEMENTING 5
 U.S.C. 5901 PROVIDE THAT THE DECISION TO FURNISH UNIFORMS MAY BE
 EFFECTIVE AS OF THE DATE IT IS MADE SO LONG AS FUNDS USABLE FOR THIS
 PURPOSE ARE AVAILABLE;  OTHERWISE, THE DECISION MAY BE EFFECTIVE WHEN
 FUNDS BECOME AVAILABLE.
 
    /10/ 5 CFR 550.904(A) PROVIDES AS FOLLOWS:
 
    SEC. 550.904 AUTHORIZATION OF HAZARD PAY DIFFERENTIAL
 
    (A) AN AGENCY SHALL PAY THE HAZARD PAY DIFFERENTIAL LISTED IN
 APPENDIX A TO AN EMPLOYEE WHO
 
    IS ASSIGNED TO AND PERFORMS ANY IRREGULAR OR INTERMITTENT DUTY
 SPECIFIED IN THE APPENDIX WHEN
 
    THAT DUTY IS NOT USUALLY INVOLVED IN CARRYING OUT THE DUTIES OF HIS
 POSITION.  HAZARD PAY
 
    DIFFERENTIAL MAY NOT BE PAID AN EMPLOYEE WHEN THE HAZARDOUS DUTY HAS
 BEEN TAKEN INTO ACCOUNT
 
    IN THE CLASSIFICATION OF HIS POSITION.
 
    SEE ALSO FEDERAL PERSONNEL MANUAL, SUPPLEMENT 990-2, BOOK 550,
 SUBCHAP. S9.
 
    /11/ SECTION 7103(A)(14)(B) OF THE STATUTE (5 U.S.C.  7103(A)(14)(B))
 PROVIDES AS FOLLOWS:
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   .          .          .          .
 
 
    (14) 'CONDITIONS OF EMPLOYMENT' MEANS PERSONNEL POLICIES, PRACTICES,
 AND MATTERS, WHETHER
 
    ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
 CONDITIONS, EXCEPT THAT SUCH
 
    TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--
 
   .          .          .          .
 
 
    (B) RELATING TO THE CLASSIFICATION OF ANY POSITION (.)
 
    /12/ SECTION 2411.22(B) OF THE RULES AND REGULATIONS OF THE FEDERAL
 LABOR RELATIONS COUNCIL (5 CFR 24.11.22(B)(1978)) PROVIDED AS FOLLOWS:
 
    SEC. 2411.22 CONDITIONS GOVERNING REVIEW.
 
   .          .          .          .
 
 
    (B) THE COUNCIL WILL REVIEW A LABOR ORGANIZATION'S APPEAL CHALLENGING
 AN AGENCY HEAD'S
 
    DETERMINATION THAT AN INTERNAL AGENCY REGULATION BARS NEGOTIATION
 ONLY IF THE LABOR
 
    ORGANIZATION HAS FIRST REQUESTED AN EXCEPTION TO THE REGULATION FROM
 THE AGENCY HEAD AND THAT
 
    REQUEST HAS BEEN DENIED OR HAS NOT BEEN ACTED UPON WITHIN THE TIME
 LIMITS PRESCRIBED BY
 
    SEC. 2411.24.
 
    /13/ SECTION 7135(B) OF THE STATUTE (5 U.S.C. 7135(B)) PROVIDES AS
 FOLLOWS:
 
    SEC. 7135.  CONTINUATION OF EXISTING LAWS, RECOGNITIONS, AGREEMENTS,
 AND PROCEDURES
 
   .          .          .          .
 
 
    (B) POLICIES, REGULATIONS, AND PROCEDURES ESTABLISHED UNDER AND
 DECISIONS ISSUED UNDER
 
    EXECUTIVE ORDERS 11491, 11616, 11636, 11787, AND 11838, OR UNDER ANY
 OTHER EXECUTIVE ORDER, AS
 
    IN EFFECT ON THE EFFECTIVE DATE OF THIS CHAPTER, SHALL REMAIN IN FULL
 FORCE AND EFFECT UNTIL
 
    REVISED OR REVOKED BY THE PRESIDENT, OR UNLESS SUPERSEDED BY SPECIFIC
 PROVISIONS OF THIS
 
    CHAPTER OR BY REGULATIONS OR DECISIONS ISSUED PURSUANT TO THIS
 CHAPTER.
 
    /14/ SECTION 7117(A)(2) OF THE STATUTE (5 U.S.C. 7117(A)(2)) PROVIDES
 AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
   .          .          .          .
 
 
    (2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
 INCONSISTENT WITH FEDERAL
 
    LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
 WHICH ARE THE SUBJECT OF ANY
 
    AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
 SUBSECTION ONLY IF THE
 
    AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
 COMPELLING NEED (AS
 
    DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
 THE RULE OR REGULATION.
 
    /15/ SECTION 7105(A)(2)(D) OF THE STATUTE (5 U.S.C. 7105(A)(2)(D))
 PROVIDES AS FOLLOWS:
 
    SEC. 7105.  POWERS AND DUTIES OF THE AUTHORITY
 
   .          .          .          .
 
 
    (A)(2) THE AUTHORITY SHALL, TO THE EXTENT PROVIDED IN THIS CHAPTER
 AND IN ACCORDANCE WITH
 
    REGULATIONS PRESCRIBED BY THE AUTHORITY--
 
   .          .          .          .
 
 
    (D) PRESCRIBE CRITERIA AND RESOLVE ISSUES RELATING TO DETERMINING
 COMPELLING NEED FOR
 
    AGENCY RULES OR REGULATIONS UNDER SECTION 7117(B) OF THIS TITLE (.)
 
    /16/ SECTION 7117(B) OF THE STATUTE (5 U.S.C. 7117(B)) PROVIDES, IN
 RELEVANT PART, AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
   .          .          .          .
 
 
    (B)(1) IN ANY CASE OF COLLECTIVE BARGAINING IN WHICH AN EXCLUSIVE
 REPRESENTATIVE ALLEGES
 
    THAT NO COMPELLING NEED EXISTS FOR ANY RULE OR REGULATION REFERRED TO
 IN SUBSECTION (A)(3) OF
 
    THIS SECTION WHICH IS THEN IN EFFECT AND WHICH GOVERNS ANY MATTER AT
 ISSUE IN SUCH COLLECTIVE
 
    BARGAINING, THE AUTHORITY SHALL DETERMINE UNDER PARAGRAPH (2) OF THIS
 SUBSECTION, IN
 
    ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE AUTHORITY, WHETHER SUCH
 A COMPELLING NEED
 
    EXISTS.
 
    (2) FOR THE PURPOSE OF THIS SECTION, A COMPELLING NEED SHALL BE
 DETERMINED NOT TO EXIST FOR
 
    ANY RULE OR REGULATION ONLY IF--
 
    (A) THE AGENCY, OR PRIMARY NATIONAL SUBDIVISION, AS THE CASE MAY BE,
 WHICH