09:0983(138)NG - NTEU and Treasury, Customs Service -- 1982 FLRAdec NG



[ v09 p983 ]
09:0983(138)NG
The decision of the Authority follows:


 9 FLRA No. 138
 
 NATIONAL TREASURY
 EMPLOYEES UNION
 Union
 
 and
 
 DEPARTMENT OF THE
 TREASURY, U.S. CUSTOMS
 SERVICE
 Agency
 
                                            Case No. O-NG-323
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
 AND RAISES ISSUES CONCERNING THE NEGOTIABILITY OF NINE PROVISIONS (SET
 FORTH IN THE APPENDIX) OF A LOCAL AGREEMENT WHICH WERE DISAPPROVED BY
 THE AGENCY HEAD PURSUANT TO SECTION 7114(C) OF THE STATUTE.  /1/ UPON
 CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
 CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
    THE FIRST ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
 THOSE PORTIONS OF ARTICLE 2 SECTION 1A AND B, ARTICLE 32 SECTION 10A AND
 ARTICLE 40 SECTION 3 WHICH ESTABLISH THAT WHENEVER PROVISIONS CONTAINED
 IN THE NEGOTIATED AGREEMENT CONFLICT WITH GOVERNMENT-WIDE OR AGENCY-WIDE
 RULES OR REGULATIONS ISSUED AFTER THE DATE THE AGREEMENT BECAME
 EFFECTIVE, THE AGREEMENT PROVISIONS WILL PREVAIL.  THE AUTHORITY, IN
 AGREEMENT WITH THE UNION, CONCLUDES THAT THESE PROVISIONS ARE CONSISTENT
 WITH THE LANGUAGE OF THE STATUTE AND ITS LEGISLATIVE HISTORY.  IN THIS
 REGARD, SECTION 7116(A) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 7116.  UNFAIR LABOR PRACTICES
 
    (A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR AN AGENCY--
 
   .          .          . .
 
 
    (7) TO ENFORCE ANY RULE OR REGULATION (OTHER THAN A RULE OR
 REGULATION IMPLEMENTING SECTION
 
    2302 OF THIS TITLE) WHICH IS IN CONFLICT WITH ANY APPLICABLE
 COLLECTIVE BARGAINING AGREEMENT
 
    IF THE AGREEMENT WAS IN EFFECT BEFORE THE DATE THE RULE OR REGULATION
 WAS PRESCRIBED . . . .
 
    THE CONFERENCE COMMITTEE REPORT CONCERNING THIS SECTION STATED AS
 FOLLOWS:  /2/
 
    THE CONFERENCE REPORT AUTHORIZES, AS IN THE SENATE BILL, THE ISSUANCE
 OF GOVERNMENT-WIDE
 
    RULES OR REGULATIONS WHICH MAY RESTRICT THE SCOPE OF COLLECTIVE
 BARGAINING WHICH MIGHT
 
    OTHERWISE BE PERMISSIBLE UNDER THE PROVISIONS OF THIS TITLE.  AS IN
 THE HOUSE, HOWEVER, THE
 
    ACT GENERALLY PROHIBITS SUCH GOVERNMENT-WIDE RULE OR REGULATION FROM
 NULLIFYING THE EFFECT OF
 
    AN EXISTING COLLECTIVE BARGAINING AGREEMENT.  THE EXCEPTION TO THIS
 IS THE ISSUANCE OF RULES
 
    RULES OR REGULATIONS IMPLEMENTING SECTION 2302.  RULES
 
    OR REGULATIONS ISSUED UNDER SECTION 2302 MAY HAVE THE EFFECT OF
 REQUIRING NEGOTIATION OF A
 
    REVISION OF THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT TO THE
 EXTENT THAT THE NEW RULE OR
 
    REGULATION INCREASES THE PROTECTION OF THE RIGHTS OF EMPLOYEES.
 
    CONSEQUENTLY, WHILE THE DUTY TO BARGAIN UNDER SECTION 7117 OF THE
 STATUTE /3/ DOES NOT EXTEND TO MATTERS WHICH ARE INCONSISTENT WITH
 EXISTING GOVERNMENT-WIDE RULES OR REGULATIONS OR AGENCY-WIDE RULES OR
 REGULATIONS FOR WHICH A COMPELLING NEED IS FOUND TO EXIST, ONCE A
 COLLECTIVE BARGAINING AGREEMENT BECOMES EFFECTIVE, SUBSEQUENTLY ISSUED
 RULES OR REGULATIONS, WITH THE EXCEPTION OF GOVERNMENT-WIDE RULES OR
 REGULATIONS ISSUED UNDER 5 U.S.C. 2302 (RELATING TO PROHIBITED PERSONNEL
 PRACTICES), CANNOT NULLIFY THE TERMS OF SUCH A COLLECTIVE BARGAINING
 AGREEMENT.  THUS, THE PROVISIONS HERE IN DISPUTE ARE WITHIN THE DUTY TO
 BARGAIN UNDER THE STATUTE.
 
    THE SECOND ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
 ARTICLE 3 SECTIONS 12, 13 AND 14.  SECTION 12 CONCERNS THE MANNER IN
 WHICH EMPLOYEES ARE TO BE NOTIFIED OF CERTAIN PROCEDURES, PRIVILEGES AND
 OBLIGATIONS IN RELATION TO AGENCY CONDUCTED INTERROGATIONS OF EMPLOYEES.
  SECTION 12 REQUIRES THE AGENCY TO NOTIFY EMPLOYEES OF WRITTEN
 NON-CRIMINAL COMPLAINTS LODGED AGAINST THEM AS SOON AS PRACTICABLE AND
 TO FURNISH, UPON THE EMPLOYEE'S REQUEST, COPIES OF THE COMPLAINT AND THE
 AGENCY'S RESPONSE THERETO.  SECTION 14 PROVIDES THAT EMPLOYEES WILL BE
 ALLOWED TO BE PRESENT DURING A NON-CRIMINAL SEARCH OF THE EMPLOYEE'S
 POSSESSIONS AT THE WORKSITE IF THE EMPLOYEE IS OTHERWISE PRESENT AT THE
 WORKSITE.
 
    CONTRARY TO THE AGENCY'S ASSERTIONS, SECTIONS 12, 13 AND 14 DO NOT
 INTERFERE WITH THE AGENCY'S RIGHT UNDER SECTION 7106(A)(1) OF THE
 STATUTE TO DETERMINE ITS INTERNAL SECURITY PRACTICES BUT, RATHER,
 CONCERN PROCEDURES NEGOTIABLE UNDER SECTION 7106(B)(2) OF THE STATUTE.
 /4/ SPECIFICALLY, SECTION 12 DOES NOT INTERFERE WITH THE AGENCY'S
 DETERMINATION WHETHER TO INTERVIEW A PARTICULAR EMPLOYEE;  NOR DOES IT
 CONCERN INVESTIGATIONS OR INTERVIEWS CONDUCTED BY OTHER AGENCIES.
 RATHER, ONCE THE AGENCY HAS DETERMINED TO INTERVIEW AN EMPLOYEE, SECTION
 12 WOULD REQUIRE THAT SUCH EMPLOYEE BE APPRISED OF CERTAIN RIGHTS, I.E.,
 THE RIGHT TO REPRESENTATION AND THE RIGHT TO REMAIN SILENT WHEN BEING
 INTERVIEWED REGARDING POSSIBLE CRIMINAL MISCONDUCT;  THE RIGHT TO BE
 APPRISED THAT THE FAILURE OR REFUSAL TO ANSWER QUESTIONS IN CRIMINAL
 INVESTIGATIONS WHERE PROSECUTION HAS BEEN DECLINED OR IN NON-CRIMINAL
 INVESTIGATIONS MAY RESULT IN DISCIPLINARY ACTION;  AND THE RIGHT TO BE
 APPRISED THAT A FALSE ANSWER MAY RESULT IN CRIMINAL PROSECUTION.  IN
 THIS RESPECT, SECTION 12 MERELY INCORPORATES INTO THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT AN EMPLOYEE'S LEGAL RIGHT TO
 REPRESENTATION DURING SUCH INTERVIEWS, SEE SECTION 7114(A)(2)(B) OF THE
 STATUTE;  INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND INTERNAL
 REVENUE SERVICE, HARTFORD DISTRICT OFFICE AND NATIONAL TREASURY
 EMPLOYEES UNION, 4 FLRA NO. 37(1980), ENFORCED SUB NOM.  INTERNAL
 REVENUE SERVICE, WASHINGTON D.C. V. FEDERAL LABOR RELATIONS AUTHORITY,
 671 F.2D 560(D.C. CIR. 1982), AND, IN ADDITION, AN EMPLOYEE'S LEGAL
 RIGHT TO REMAIN SILENT WHEN BEING INVESTIGATED FOR POSSIBLE CRIMINAL
 MISCONDUCT UNLESS CRIMINAL PROSECUTION IS DECLINED.  SEE E.G. KALKINES
 V. UNITED STATES, 473 F.2D 1391(CT.  CL. 1973).
 
    FURTHER, WHILE THE AGENCY ASSERTS THAT AN ATTORNEY GENERAL'S
 MEMORANDUM, DATED JUNE 4, 1980, CONCERNING PROCEDURES TO BE FOLLOWED IN
 ADMINISTRATIVE INVESTIGATIONS OF EMPLOYEE MISCONDUCT IS A BAR TO
 NEGOTIATION, THE AGENCY MAKES NO SHOWING OF ANY INCONSISTENCY BETWEEN
 SECTION 12 AND THAT MEMORANDUM.  IN THE ABSENCE OF ANY SHOWING THAT THE
 DISPUTED SECTION 12 IS INCONSISTENT WITH THE MEMORANDUM, IT IS
 UNNECESSARY TO RULE ON WHETHER THAT MEMORANDUM CONSTITUTES A
 GOVERNMENT-WIDE RULE OR REGULATION, AS CLAIMED BY THE AGENCY BECAUSE IN
 SUCH CIRCUMSTANCES, THE MEMORANDUM WOULD NOT BAR THE NEGOTIATION OF THIS
 PORTION OF THE PROVISION.  SEE SECTION 7117(A)(1) OF THE STATUTE;  LONG
 BEACH NAVAL SHIPYARD, LONG BEACH CALIFORNIA AND INTERNATIONAL FEDERATION
 OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL 174, AFL-CIO, 7 FLRA NO.
 53(1981) AT 6.
 
    TURNING TO SECTION 13, CONTRARY TO THE AGENCY'S CONTENTION, NOTHING
 IN THIS PORTION OF THE PROVISION CONCERNS MANAGEMENT'S DISCRETION AND
 JUDGMENT ON HOW TO PERFORM ITS INVESTIGATIVE FUNCTIONS.  THAT IS,
 SECTION 13 ONLY WOULD REQUIRE THAT AN EMPLOYEE BE NOTIFIED OF A WRITTEN
 COMPLAINT RECEIVED BY MANAGEMENT CONCERNING THAT EMPLOYEE AS SOON AS
 PRACTICABLE AFTER RECEIPT OF THE COMPLAINT.  IN THIS RESPECT THE AGENCY
 HAS NOT DEMONSTRATED HOW NOTIFYING AN EMPLOYEE OF A WRITTEN COMPLAINT
 INVOLVING THAT EMPLOYEE AS SOON AS PRACTICABLE AFTER RECEIPT OF THE
 COMPLAINT WOULD INTERFERE WITH THE AGENCY'S DISCRETION AND JUDGMENT ON
 HOW TO MEET ITS INVESTIGATIVE RESPONSIBILITIES.  FURTHER, NOTHING IN
 SECTION 13 WOULD REQUIRE THE RELEASE OF INFORMATION IN VIOLATION OF THE
 PRIVACY ACT (5 U.S.C. 552A(1976)).  UNDER THIS PORTION OF THE PROVISION
 THE AGENCY WOULD RETAIN THE DISCRETION TO TAKE WHATEVER ACTION IS
 NECESSARY TO "SANITIZE" THE COMPLAINT SO AS TO PROTECT "CONFIDENTIAL
 SOURCES" OR OTHER EMPLOYEES INVOLVED IN THE COMPLAINT.  THUS, THE AGENCY
 HAS NOT ESTABLISHED THAT SECTION 13 VIOLATES LAW OR INTERFERES WITH THE
 AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES.
 
    FINALLY, AS TO SECTION 14, THERE IS NOTHING IN THAT PORTION OF THE
 PROVISION CONCERNING THE AGENCY'S DETERMINATION WHETHER TO SEARCH AN
 EMPLOYEE'S POSSESSIONS AT THE WORKSITE.  RATHER, SECTION 14 ONLY WOULD
 REQUIRE THAT, IF THE EMPLOYEE IS PRESENT AT THE WORKSITE, THE EMPLOYEE
 WILL BE PERMITTED TO BE PRESENT DURING THE SEARCH AND TO BE REPRESENTED
 BY THE UNION.  IN THIS CONNECTION, THE AGENCY HAS NOT DEMONSTRATED HOW
 THE EMPLOYEE'S PRESENCE DURING A SEARCH OF HIS POSSESSIONS WOULD PREVENT
 MANAGEMENT FROM PROTECTING ITS PROPERTY FROM LOSS, DESTRUCTION OR
 DISCLOSURE.  THUS, IT HAS NOT ESTABLISHED THAT SECTION 14 WOULD
 INTERFERE WITH THE AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY
 PRACTICES.  SEE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 61
 AND DEPARTMENT OF THE TREASURY, 7 FLRA NO. 47(1981).
 
    ACCORDINGLY, SECTIONS 12, 13 AND 14 OF ARTICLE 3 ARE NOT INCONSISTENT
 WITH LAW OR GOVERNMENT-WIDE REGULATIONS AND DO NOT INTERFERE WITH THE
 AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES BUT ARE
 WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE.
 
    THE THIRD ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
 THE LAST SENTENCE OF ARTICLE 10 SECTION 9 WHICH WOULD REQUIRE MANAGEMENT
 TO PROVIDE EMPLOYEES WITH THE OPPORTUNITY TO UNDERTAKE THOSE WORK
 ASSIGNMENTS WHICH WILL ENABLE MANAGEMENT TO EVALUATE THE EMPLOYEES'
 ABILITY TO PERFORM HIGHER GRADED WORK.  THE RIGHT "TO ASSIGN WORK"
 PURSUANT TO SECTION 7106(A)(2)(B) OF THE STATUTE INCLUDES THE RIGHT TO
 DETERMINE THE PARTICULAR DUTIES TO BE ASSIGNED AND THE PARTICULAR
 EMPLOYEE TO WHOM OR POSITIONS TO WHICH THE DUTIES WILL BE ASSIGNED.
 NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU
 OF THE PUBLIC DEBT, 3 FLRA 769, 775(1980).  IN AGREEMENT WITH THE
 AGENCY, THE AUTHORITY FINDS THE DISPUTED SENTENCE WOULD INTERFERE WITH
 THIS MANAGEMENT RIGHT.  THAT IS, MANAGEMENT WOULD BE OBLIGATED TO ASSIGN
 SUCH DUTIES AS WOULD ENABLE MANAGEMENT TO EVALUATE AN EMPLOYEE'S ABILITY
 TO PERFORM HIGHER GRADED DUTIES.  IN ADDITION, MANAGEMENT'S DECISION TO
 ASSIGN PARTICULAR DUTIES TO PARTICULAR EMPLOYEES WOULD BE SUBJECT TO
 CHALLENGE ON THE BASIS THAT THE DUTIES ASSIGNED DID NOT ENABLE
 MANAGEMENT TO EVALUATE AN EMPLOYEE'S ABILITY TO PERFORM HIGHER GRADED
 WORK AND THEREFORE TO THE POSSIBILITY OF AN ARBITRATOR SUBSTITUTING HIS
 JUDGMENT FOR THAT OF THE AGENCY WITH RESPECT TO THE ASSIGNMENT OF
 DUTIES.  THUS, THE LAST SENTENCE OF ARTICLE 10 SECTION 9 DIRECTLY
 INTERFERES WITH THE AGENCY'S SECTION 7106(A)(2)(B) RIGHT "TO ASSIGN
 WORK" AND IS OUTSIDE THE DUTY TO BARGAIN.  SEE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1968 AND DEPARTMENT OF
 TRANSPORTATION, SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION, MASSENA,
 NEW YORK, 5 FLRA NO. 14(1981), APPEAL DOCKETED SUB NOM.  AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1968 V. FEDERAL LABOR
 RELATIONS AUTHORITY, NO. 81-1274 (D.C. CIR. MAR. 11, 1981).
 
    THE FOURTH ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
 ARTICLE 12 SECTIONS 12A AND B WHICH PROVIDE THAT EMPLOYEES RELEASED FROM
 THEIR COMPETITIVE LEVELS BECAUSE OF A REDUCTION-IN-FORCE WILL BE PLACED
 IN VACANT POSITIONS (TO BE FILLED WITHIN THREE MONTHS OF THE RIF) FOR
 WHICH THEY QUALIFY OR FOR WHICH THEY HAVE THE CAPACITY, ADAPTABILITY OR
 SPECIAL SKILLS REQUIRED BY THE POSITION.  THE PROVISION HERE IN DISPUTE
 BEARS NO MATERIAL DIFFERENCE FROM THE PROPOSAL WHICH WAS HELD
 NONNEGOTIABLE IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2782 AND DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON,
 D.C., 7 FLRA NO. 13(1981), APPEAL DOCKETED SUB NOM. AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 2782 V.  FEDERAL LABOR RELATIONS
 AUTHORITY, NO. 81-2386 (D.C. CIR. DEC. 29, 1981).  IN THAT DECISION THE
 AUTHORITY HELD THAT A PROPOSAL REQUIRING EMPLOYEES DEMOTED THROUGH NO
 FAULT OF THEIR OWN TO BE SELECTED FOR AVAILABLE VACANCIES FOR WHICH THEY
 WERE QUALIFIED VIOLATED THE AGENCY'S RIGHT TO CHOOSE AMONG CANDIDATES
 FROM "ANY APPROPRIATE SOURCE" PURSUANT TO SECTION 7106(A)(2)(C)(II) OF
 THE STATUTE.  THEREFORE, FOR THE REASONS FULLY SET FORTH IN BUREAU OF
 THE CENSUS, THE PROVISION HERE IN DISPUTE MUST ALSO BE HELD TO BE
 OUTSIDE THE DUTY TO BARGAIN.
 
    THE FIFTH ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
 THE SECOND SENTENCE OF ARTICLE 16 SECTION 8 WHICH PROVIDES THAT
 PERFORMANCE STANDARDS SHALL BE UNIFORMLY APPLIED FOR LIKE DUTIES IN LIKE
 CIRCUMSTANCES.  THE PORTION OF THE PROVISION HERE IN DISPUTE BEARS NO
 MATERIAL DIFFERENCE FROM PROPOSAL 5 WHICH WAS BEFORE THE AUTHORITY IN
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND
 OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA 784 (1980).  IN
 THAT DECISION THAT AUTHORITY HELD THAT THE PORTION OF PROPOSAL 5
 PROVIDING THAT PERFORMANCE STANDARDS WILL BE FAIR AND EQUITABLE AND
 CONSISTENT WITH THE CLASSIFICATION STANDARDS FOR THE JOB WAS WITHIN THE
 DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE AS AN
 APPROPRIATE ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY
 MANAGEMENT'S
 AUTHORITY UNDER THE STATUTE TO DIRECT EMPLOYEES AND ASSIGN WORK THROUGH
 THE ESTABLISHMENT OF PERFORMANCE STANDARDS AND TO DISCIPLINE EMPLOYEES
 FOR UNACCEPTABLE PERFORMANCE.  THE DISPUTED PORTION OF ARTICLE 16
 SECTION 8 SIMILARLY WOULD ESTABLISH A GENERAL, NONQUANTITATIVE STANDARD
 BY WHICH THE APPLICATION OF CRITICAL ELEMENTS AND PERFORMANCE STANDARDS
 ESTABLISHED BY MANAGEMENT MAY SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE
 BY AN EMPLOYEE WHO BELIEVES THAT HE HAS BEEN ADVERSELY AFFECTED BY THE
 APPLICATION OF MANAGEMENT'S PERFORMANCE STANDARDS TO HIM.  THUS, FOR THE
 REASONS FULLY SET FORTH IN OFFICE OF PERSONNEL MANAGEMENT, THE DISPUTED
 PORTION OF ARTICLE 16 SECTION 8 MUST BE HELD TO BE WITHIN THE DUTY TO
 BARGAIN UNDER THE STATUTE.
 
    THE LAST TWO PROVISIONS IN DISPUTE HEREIN, ARTICLE 36 SECTION 5C AND
 ARTICLE 37 SECTION 7D, CONTAIN IDENTICAL LANGUAGE PROVIDING THAT
 EMPLOYEES WHO ARE ON OFFICIAL TIME REPRESENTING THE UNION IN COLLECTIVE
 BARGAINING NEGOTIATIONS WITH THE AGENCY WILL BE ENTITLED TO
 REIMBURSEMENT FOR THEIR TRAVEL AND PER DIEM EXPENSES.  EACH OF THESE
 PROVISIONS, HOWEVER, IS INTENDED TO APPLY IN A DIFFERENT BARGAINING
 SITUATION.  SPECIFICALLY, ARTICLE 36 SECTION 5C APPLIES WHEN THE PARTIES
 ARE NEGOTIATING LOCAL AGREEMENTS TO SUPPLEMENT THE NATIONAL (MASTER)
 AGREEMENT AND ARTICLE 37 SECTION 7D APPLIES WHEN THE PARTIES ARE
 INVOLVED IN IMPACT BARGAINING.
 
    WITH REGARD TO THE REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES
 INCURRED DURING COLLECTIVE BARGAINING NEGOTIATIONS, THE AUTHORITY
 DETERMINED IN INTERPRETATION AND GUIDANCE, 2 FLRA 265(1979) THAT WHEN AN
 EMPLOYEE IS AUTHORIZED OFFICIAL TIME UNDER SECTION 7131(A) OF THE
 STATUTE /5/ TO PARTICIPATE IN SUCH COLLECTIVE BARGAINING NEGOTIATIONS
 THAT EMPLOYEE IS DEEMED TO BE ON "OFFICIAL BUSINESS FOR THE GOVERNMENT"
 AND, THUS, ENTITLED TO REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES.
 FURTHER IN THIS RESPECT, THE AUTHORITY CONCLUDED IN BUREAU OF ALCOHOL,
 TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT OF THE TREASURY, SAN
 FRANCISCO, CALIFORNIA AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 81,
 4 FLRA NO. 40(1980), ENFORCED SUB NOM. BUREAU OF ALCOHOL, TOBACCO AND
 FIREARMS V. FEDERAL LABOR RELATIONS AUTHORITY, 672 F.2D 732 (9TH CIR.
 1982) THAT EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE DURING
 "IMPACT" BARGAINING WITH AN AGENCY ARE AUTHORIZED OFFICIAL TIME UNDER
 SECTION 7131(A) AND, AS A CONSEQUENCE, REIMBURSEMENT FOR THEIR TRAVEL
 AND PER DIEM EXPENSES.  ACCORDINGLY, SINCE ARTICLE 37 SECTION 7D,
 PROVIDING FOR REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES FOR
 EMPLOYEES ON OFFICIAL TIME DURING "IMPACT" BARGAINING WITH THE AGENCY,
 MERELY INCORPORATES INTO THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
 THE LEGAL ENTITLEMENT TO SUCH EXPENSES, IT IS CLEARLY WITHIN THE DUTY TO
 BARGAIN UNDER THE STATUTE.
 
    IN CONTRAST TO THE STATUTORY AUTHORIZATION FOR OFFICIAL TIME AND,
 THEREBY, TRAVEL AND PER DIEM EXPENSE REIMBURSEMENT FOR EMPLOYEES ENGAGED
 IN IMPACT BARGAINING, THE AUTHORITY DETERMINED IN INTERPRETATION AND
 GUIDANCE, 7 FLRA NO. 105(1982) THAT EMPLOYEES ARE NOT AUTHORIZED
 OFFICIAL TIME UNDER SECTION 7131(A) TO PARTICIPATE IN THE NEGOTIATION OF
 LOCAL AGREEMENTS TO SUPPLEMENT A NATIONAL OR CONTROLLING (MASTER)
 AGREEMENT.  HOWEVER, THE AUTHORITY ALSO INDICATED IN THIS DECISION THAT
 WHEN THE PARTIES AT THE MASTER AGREEMENT LEVEL AGREE TO AUTHORIZE THE
 CREATION OF LOCAL SUPPLEMENTS THEY REMAIN EMPOWERED PURSUANT TO SECTION
 7131(D) OF THE STATUTE /6/ TO NEGOTIATE OFFICIAL TIME FOR EMPLOYEES
 PARTICIPATING IN SUCH NEGOTIATION IN ANY AMOUNT THEY AGREE IS
 "REASONABLE, NECESSARY, AND IN THE PUBLIC INTEREST." FURTHER, INSOFAR AS
 THE PARTIES MAY ESTABLISH A CONTRACTUAL ENTITLEMENT TO OFFICIAL TIME FOR
 EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF
 LOCAL SUPPLEMENTS THE PARTIES ALSO MAY DETERMINE THE EXTENT TO WHICH
 TRAVEL IN CONNECTION WITH SUCH NEGOTIATIONS WILL OCCUR DURING OFFICIAL
 TIME.  OF COURSE, SINCE THE PARTIES ONLY MAY NEGOTIATE OFFICIAL TIME
 UNDER SECTION 7131(D) WHICH IS IN "THE PUBLIC INTEREST," TRAVEL WHICH
 OCCURRED DURING SUCH OFFICIAL TIME ALSO WOULD BE "IN THE PUBLIC
 INTEREST" AND PERFORCE WOULD ENTITLE AN EMPLOYEE TO TRAVEL AND PER DIEM
 EXPENSE REIMBURSEMENT.  SEE NATIONAL TREASURY EMPLOYEES UNION AND
 DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, 9 FLRA NO. 70(1982).
 
    THEREFORE, BASED ON THE AFOREMENTIONED DECISIONS, SINCE THE PARTIES
 IN THIS CASE HAVE ALREADY AGREED THAT EMPLOYEES REPRESENTING THE UNION
 DURING THE NEGOTIATION OF LOCAL SUPPLEMENTS WILL BE ON OFFICIAL TIME
 (WHICH AGREEMENT IS NOT IN DISPUTE), THE REQUIREMENT CONTAINED IN
 SECTION 5 OF ARTICLE 36 THAT EMPLOYEES BE REIMBURSED FOR THEIR TRAVEL
 AND PER DIEM EXPENSES FOR THAT TRAVEL WHICH OCCURS DURING SUCH OFFICIAL
 TIME DOES NOT VIOLATE LAW BUT RATHER IS WITHIN THE DUTY TO BARGAIN.
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S
 PETITION FOR REVIEW RELATING TO ARTICLE 10 SECTION 9 (LAST SENTENCE) AND
 ARTICLE 12 SECTIONS 12A AND B BE, AND IT HEREBY IS DISMISSED.  IT IS
 FURTHER ORDERED THAT THE AGENCY SHALL RESCIND ITS DISAPPROVAL OF ARTICLE
 2, SECTIONS 1A AND B, ARTICLE 32 SECTION 10A, ARTICLE 40 SECTION 3,
 ARTICLE 3 SECTIONS 12, 13 AND 14, ARTICLE 16 SECTION 8 (SECOND
 SENTENCE), ARTICLE 36 SECTION 5C AND ARTICLE 37 SECTION 7D WHICH WERE
 BARGAINED ON AND AGREED TO BY THE PARTIES AT THE LOCAL LEVEL.  /7/
 
    ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
    ARTICLE 2, SECTIONS 1A AND B
 
    A.  IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THIS AGREEMENT,
 ALL MANAGEMENT OFFICIALS AND EMPLOYEES ARE GOVERNED BY EXISTING OR
 FUTURE LAWS;  AND GOVERNMENT-WIDE AND TREASURY DEPARTMENT RULES OR
 REGULATIONS IN EFFECT UPON THE EFFECTIVE DATE OF THE AGREEMENT.
 
    B.  SHOULD ANY CONFLICT ARISE IN THE ADMINISTRATION OF THIS AGREEMENT
 BETWEEN THE TERMS OF THIS AGREEMENT AND ANY GOVERNMENT-WIDE OR AGENCY
 RULE OR REGULATION SUCH AS THE FEDERAL PERSONNEL MANUAL, OR THE TREASURY
 PERSONNEL MANUAL ISSUED AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, THE
 TERMS OF THIS AGREEMENT WILL SUPERSEDE AND GOVERN.
 
    ARTICLE 3, SECTIONS 12, 13 AND 14
 
    SECTION 12 OFFICE OF MANAGEMENT INTEGRITY INTERVIEWS
 
    A.  WHEN AN EMPLOYEE IS INTERVIEWED BY THE OFFICE OF MANAGEMENT
 INTEGRITY, AND THE EMPLOYEE IS THE SUBJECT OF AN INVESTIGATION, THE
 EMPLOYEE WILL BE INFORMED OF THE GENERAL NATURE OF THE MATTER (I.E.
 CRIMINAL OR ADMINISTRATIVE MISCONDUCT) BEING INVESTIGATED, AND, UPON
 REQUEST, BE INFORMED WHETHER OR NOT THE INTERVIEW IS RELATED TO POSSIBLE
 CRIMINAL MISCONDUCT BY HIM.
 
    B.  WHERE THE SUBJECT OF AN OFFICE OF MANAGEMENT INTEGRITY
 INVESTIGATION IS BEING INTERVIEWED REGARDING A MATTER OF CRIMINAL
 MISCONDUCT BY HIM, THE EMPLOYEE HAS THE RIGHT TO BE REPRESENTED AT THE
 INTERVIEW, AND THE RIGHT TO REMAIN SILENT AND NOT TO ANSWER ANY
 QUESTIONS.
 
    C.  WHEN AN EMPLOYEE IS THE SUBJECT OF A CUSTODIAL INTERROGATION BY
 THE OFFICE OF MANAGEMENT INTEGRITY AS THE SUBJECT OF AN ALLEGATION THAT
 THE EMPLOYEE IS GUILTY OF CRIMINAL MISCONDUCT, HE WILL BE ADVISED OF HIS
 RIGHT TO COUNSEL AND HIS RIGHT TO REMAIN SILENT.
 
    D.  IN AN INTERVIEW INVOLVING POSSIBLE CRIMINAL MATTERS, WHERE
 PROSECUTION HAS BEEN DECLINED BY APPROPRIATE AUTHORITY, AN EMPLOYEE WILL
 BE REQUIRED TO ANSWER QUESTIONS ONLY AFTER THE OFFICE OF MANAGEMENT
 INTEGRITY REPRESENTATIVE HAS PROVIDED THE EMPLOYEE WITH THE APPROPRIATE
 ASSURANCES.  PRIOR TO REQUIRING AN EMPLOYEE TO ANSWER UNDER SUCH
 CIRCUMSTANCES, THE OFFICE OF MANAGEMENT INTEGRITY REPRESENTATIVE SHALL
 INFORM THE EMPLOYEE THAT HIS STATEMENTS CONCERNING THE ALLEGATIONS
 DURING THE INTERVIEW CANNOT AND WILL NOT BE USED AGAINST HIM IN A
 SUBSEQUENT CRIMINAL PROCEEDING, EXCEPT FOR POSSIBLE PERJURY CHARGES FOR
 ANY FALSE ANSWERS GIVEN DURING THE INTERVIEW.
 
    E.  IN ANY INTERVIEW WHERE THE EMPLOYEE IS NOT THE SUBJECT OF A
 CRIMINAL INVESTIGATION, OR WHEN AN EMPLOYEE HAS BEEN ADVISED OF HIS
 RIGHTS UNDER SUBSECTION D ABOVE, THE OFFICE OF MANAGEMENT INTEGRITY
 REPRESENTATIVE HAS THE AUTHORITY TO INFORM THE EMPLOYEE THAT:
 
    1) THE EMPLOYEE MUST DISCLOSE ANY INFORMATION KNOWN TO HIM CONCERNING
 THE MATTER BEING
 
    INVESTIGATED;
 
    2) THE EMPLOYEE MUST ANSWER ANY QUESTIONS PUT TO HIM REGARDING ANY
 MATTER WHICH HAS A
 
    REASONABLE RELATIONSHIP TO MATTERS OF OFFICIAL INTEREST;
 
    3) THE EMPLOYEE'S FAILURE OR REFUSAL TO ANSWER SUCH QUESTIONS MAY
 RESULT IN DISCIPLINARY OR
 
    ADVERSE ACTION;  AND
 
    4) A FALSE ANSWER TO ANY SUCH QUESTIONS MAY RESULT IN CRIMINAL
 PROSECUTION.
 
    WHEN AN EMPLOYEE REFUSES TO ANSWER A PROPER QUESTION, THE OFFICE OF
 MANAGEMENT INTEGRITY REPRESENTATIVE SHALL INFORM HIM OF HIS OBLIGATION
 TO ANSWER.
 
    F.  WHERE A REPRESENTATIVE OF THE OFFICE OF MANAGEMENT INTEGRITY
 TAPE-RECORDS AN EMPLOYEE INTERVIEW, OR CAUSES A STENOGRAPHIC RECORD TO
 BE MADE OF SUCH AN INTERVIEW, THE EMPLOYEE SHALL RECEIVE A VERBATIM
 TRANSCRIPT OF THE INTERVIEW.
 
    G.  WHERE POSSIBLE IN A NON-CRIMINAL INVESTIGATION, THE OFFICE OF
 MANAGEMENT INTEGRITY SHALL CONDUCT EMPLOYEE INTERVIEWS DURING THE
 EMPLOYEES' DUTY HOURS.
 
    H.  WHERE A REPRESENTATIVE OF THE OFFICE OF MANAGEMENT INTEGRITY
 DENIES AN EMPLOYEE THE OPPORTUNITY TO BE REPRESENTED BY THE UNION DURING
 AN INTERVIEW UNDER SECTION 11 OF THIS ARTICLE, THE EMPLOYEE WILL, UPON
 REQUEST, BE PROVIDED WITH THE REASON FOR THE DENIAL IN WRITING.
 
    SECTION 13
 
    A.  AN EMPLOYEE WILL BE NOTIFIED OF A WRITTEN COMPLAINT RECEIVED BY
 MANAGEMENT.  A COMPLAINT FOR THE PURPOSE OF THIS SECTION IS DEFINED AS A
 WRITTEN STATEMENT BY AN IDENTIFIED COMPLAINANT INDICATING
 DISSATISFACTION WITH AN EMPLOYEE BY REASON OF CONDUCT, APPEARANCE OR
 CARELESSNESS OR PROPRIETY OF AN ACTION TAKEN BY THE EMPLOYEE.
 
    B.  NOTIFICATION SHALL BE PROVIDED BY MANAGEMENT AS SOON AS
 PRACTICABLE FOLLOWING THE RECEIPT OF THE COMPLAINT.  UPON REQUEST, THE
 EMPLOYEE SHALL BE FURNISHED WITH A COPY OF THE COMPLAINT;  OR IF THE
 COMPLAINT INVOLVES MORE THAN ONE EMPLOYEE, THAT PORTION OF THE COMPLAINT
 RELATED TO THE REQUESTING EMPLOYEE.  A COPY OF A WRITTEN RESPONSE BY
 MANAGEMENT WILL BE FURNISHED TO THE EMPLOYEE UPON WRITTEN REQUEST BY THE
 EMPLOYEE.
 
    C.  THIS SECTION DOES NOT APPLY TO COMPLAINTS WHICH CONTAIN
 ALLEGATIONS OF CRIMINAL MISCONDUCT.
 
    SECTION 14
 
    WHEN THE EMPLOYER EXERCISES ITS LEGAL RIGHT TO SEARCH AN EMPLOYEE'S
 POSSESSIONS AT THE WORKSITE (E.G. DESK, LOCKER, CAR, CLOTHING, ETC.) IN
 A NON-CRIMINAL MATTER, THE EMPLOYEE WILL BE ALLOWED TO BE PRESENT DURING
 THE SEARCH IF THE EMPLOYEE IS OTHERWISE PRESENT AT THE WORKSITE.  THE
 EMPLOYEE SHALL, UPON REQUEST, BE GIVEN AN OPPORTUNITY TO BE REPRESENTED
 BY THE UNION DURING THE SEARCH, PROVIDED THAT THE SUPPLYING OF SUCH
 REPRESENTATION BY THE UNION SHALL NOT UNDULY DELAY THE SEARCH OR IMPEDE
 THE PURPOSE FOR WHICH THE SEARCH IS CONDUCTED.
 
    ARTICLE 10, SECTION 9
 
    IN THE OFFICE OF REGULATIONS AND RULINGS THE FOLLOWING SECTION WILL
 CONTINUE TO APPLY.
 
    THE EMPLOYER WILL SEEK TO MAKE AVAILABLE TO BARGAINING UNIT EMPLOYEES
 ANY TRAINING COURSE THAT ENHANCES THE EMPLOYEE'S PROFICIENCY IN THE JOB
 AND PROMOTIONAL OPPORTUNITIES.  IN CASES WHERE SUCH COURSES CANNOT
 ACCOMMODATE ALL INTERESTED EMPLOYEES OR THE NEEDS OF THE EMPLOYER
 PRECLUDE HIM FROM RECOMMENDING ALL INTERESTED EMPLOYEES, THE EMPLOYER
 WILL SEEK TO PROVIDE ALTERNATIVE TRAINING OPPORTUNITIES FOR THOSE
 INTERESTED EMPLOYEES.  ALL EMPLOYEES THROUGH GS-13 WILL BE PROVIDED WITH
 AN OPPORTUNITY TO UNDERTAKE ASSIGNMENTS ON THE BASIS OF WHICH THE
 ABILITY TO PERFORM BEYOND PRESENT GRADE LEVEL CAN BE EVALUATED.
 
    ARTICLE 12, SECTIONS 12A AND B
 
    A.  WHERE THE EMPLOYER HAS DETERMINED THAT VACANT POSITIONS ARE TO BE
 FILLED WITHIN THREE MONTHS FROM THE DATE OF A REDUCTION IN FORCE ACTION,
 THE EMPLOYER SHALL PLACE EMPLOYEES RELEASED FROM THEIR COMPETITIVE
 LEVELS IN THESE VACANT POSITIONS FOR WHICH THEY ARE QUALIFIED WITHIN
 THEIR COMPETITIVE AREAS.
 
    B.  AN EMPLOYEE SHALL BE ASSIGNED TO A VACANCY BY WAIVING
 QUALIFICATION REQUIREMENTS WHEN THE EMPLOYEE HAS THE CAPACITY,
 ADAPTABILITY AND SPECIAL SKILLS REQUIRED BY THE POSITION.  POSITIVE
 EDUCATION REQUIREMENTS MAY NOT BE WAIVED IN ANY CASE.
 
    ARTICLE 16, SECTION 8
 
    PERFORMANCE EVALUATIONS SHALL BE BASED UPON REASONABLE PERFORMANCE
 STANDARDS FOR EACH POSITION.  SUCH PERFORMANCE STANDARDS SHALL BE
 UNIFORMLY APPLIED FOR LIKE DUTIES IN LIKE CIRCUMSTANCES.
 
    ARTICLE 32, SECTION 10A
 
    A.  THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CHANGE, ALTER, MODIFY,
 DELETE OR ADD TO THE TERMS AND PROVISIONS OF THIS AGREEMENT AND/OR
 APPLICABLE POLICIES AND REGULATIONS.  IN THE ISSUANCE OF ANY AWARD UNDER
 THIS ARTICLE, THE ARBITRATOR SHALL BE GOVERNED BY:
 
    1.  EXISTING AND FUTURE LAWS
 
    2.  THE REGULATIONS OF APPROPRIATE AUTHORITIES (I.E., GOVERNMENT-WIDE
 RULES OR
 
    REGULATIONS), INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
 MANUAL IN EXISTENCE AT THE
 
    TIME THIS AGREEMENT WAS APPROVED;
 
    3.  FUTURE REGULATIONS OF APPROPRIATE AUTHORITIES INCLUDING POLICIES
 SET FORTH IN THE
 
    FEDERAL PERSONNEL MANUAL, TO THE EXTENT THAT THEY DO NOT CONFLICT
 WITH THE PROVISIONS OF THIS
 
    AGREEMENT;  AND,
 
    4.  THE REGULATIONS OF THE AGENCY AND/OR THE EMPLOYER IN EXISTENCE AT
 THE TIME THIS
 
    AGREEMENT WAS APPROVED - AND FUTURE REGULATIONS OF THE AGENCY AND/OR
 THE EMPLOYER - TO THE
 
    EXTENT THAT THEY DO NOT CONFLICT WITH THE PROVISIONS OF THIS
 AGREEMENT.
 
    ARTICLE 36, SECTION 5C
 
    C.  AN EMPLOYEE REPRESENTING THE UNION IN NEGOTIATIONS ON OFFICIAL
 TIME UNDER THIS ARTICLE SHALL BE ENTITLED TO REIMBURSEMENT FOR TRAVEL
 AND PER DIEM EXPENSES IF OTHERWISE ELIGIBLE UNDER APPLICABLE LAW AND
 REGULATIONS.
 
    ARTICLE 37, SECTION 7D
 
    D.  AN EMPLOYEE REPRESENTING THE UNION IN NEGOTIATIONS ON OFFICIAL
 TIME UNDER THIS ARTICLE SHALL BE ENTITLED TO REIMBURSEMENT FOR TRAVEL
 AND PER DIEM EXPENSES IF OTHERWISE ELIGIBLE UNDER APPLICABLE LAW AND
 REGULATION.
 
    ARTICLE 40, SECTION 3
 
    A.  THE PARTIES ACKNOWLEDGE THAT DURING THE NEGOTIATIONS WHICH
 RESULTED IN THIS AGREEMENT, EACH HAD THE UNLIMITED RIGHT AND OPPORTUNITY
 TO MAKE DEMANDS AND PROPOSALS WITH RESPECT TO ANY SUBJECT OR MATTER NOT
 REMOVED FROM THE AREA OF COLLECTIVE BARGAINING BY APPLICABLE LAWS,
 EXISTING AGENCY POLICIES AND REGULATIONS FOR WHICH A COMPELLING NEED
 EXISTS, AND THE REGULATIONS OF OTHER APPROPRIATE AUTHORITIES.  THE
 UNDERSTANDINGS AND AGREEMENTS ARRIVED AT BY THE PARTIES AFTER THE
 EXERCISE OF THAT RIGHT AND OPPORTUNITY ARE SET FORTH IN THIS AGREEMENT.
 
    B.  THEREFORE, THE EMPLOYER AND THE UNION, FOR THE LIFE OF THIS
 AGREEMENT, EACH VOLUNTARILY AND UNQUALIFIEDLY RELINQUISHES THE RIGHT,
 AND EACH AGREES THAT THE OTHER SHALL NOT BE OBLIGATED, TO BARGAIN
 COLLECTIVELY WITH RESPECT TO ANY SUBJECT OR MATTER NOT SPECIFICALLY
 REFERRED TO OR COVERED IN THIS AGREEMENT, EVEN THOUGH SUCH SUBJECTS OR
 MATTERS MAY NOT HAVE BEEN WITHIN THE KNOWLEDGE OR CONTEMPLATION OF
 EITHER OR BOTH OF THE PARTIES AT THE TIME THAT THEY NEGOTIATED OR SIGNED
 THIS AGREEMENT.
 
    IN SO AGREEING, THE PARTIES EXPRESSLY FORFEIT THEIR RESPECTIVE RIGHTS
 TO PROPOSE OR INITIATE CHANGES IN THE CONDITIONS OF EMPLOYMENT DURING
 THE LIFE OF THIS AGREEMENT WHICH ARE NEGOTIABLE IN SUBSTANCE UNDER THE
 CIVIL SERVICE REFORM ACT AND WHICH DO NOT INVOLVE THE EXERCISE OF
 MANAGEMENT RIGHTS.  THIS SUBSECTION DOES NOT ALTER THE EMPLOYER'S RIGHT
 TO EXERCISE ITS MANAGEMENT RIGHTS AS SET FORTH IN ARTICLE 5, OR THE
 UNION'S RIGHT TO ENGAGE IN IMPACT BARGAINING AS SET FORTH IN ARTICLE 37.
 
    C.  THE PARTIES ALSO VOLUNTARILY AND UNQUALIFIEDLY RELINQUISH THE
 RIGHT, AND EACH AGREES THAT THE OTHER SHALL NOT BE OBLIGATED, TO BARGAIN
 COLLECTIVELY AND RESPECT TO ANY MODIFICATION OF THE TERMS AND PROVISIONS
 CONTAINED IN THIS AGREEMENT, IF SUCH MODIFICATION IS TO BECOME EFFECTIVE
 PRIOR TO THE EXPIRATION DATE OF THIS AGREEMENT, EXCEPT AS MAY
 SPECIFICALLY BE PROVIDED FOR IN THE REOPENING PROVISIONS CONTAINED IN
 THIS AGREEMENT.
 
    D.  ANY DISPUTES WHICH ARISE CONCERNING THE APPLICATION OF THIS
 SECTION, SHALL BE SUBJECT TO THE GRIEVANCE AND ARBITRATION PROCEDURES
 CONTAINED IN THIS AGREEMENT.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ CONTRARY TO THE UNION'S ASSERTIONS, THE AGREEMENT WAS PROPERLY
 DISAPPROVED WITHIN THE MEANING OF SECTION 7114(C) BY "THE HEAD OF THE
 AGENCY" OR HIS DESIGNEE, IN THIS CASE, THE DIRECTOR OF PERSONNEL,
 DEPARTMENT OF THE TREASURY.  SEE 5 U.S.C. 101,105;  AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3656 AND FEDERAL TRADE
 COMMISSION, BOSTON REGIONAL OFFICE, MASSACHUSETTS, 4 FLRA NO. 92(1980).
 
    /2/ H. REP. NO. 95-1717, 95TH CONG., 2D SESS. 155(1978).
 
    /3/ SECTION 7117 OF THE STATUTE PROVIDES, IN PERTINENT PART, 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.
 
    (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 . . . 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.
 
    /4/ SECTION 7106 OF THE STATUTE PROVIDES, IN PERTINENT 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--
 
    (1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE
 AGENCY(.)
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   .          .          .          .
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION(.)
 
    /5/ SECTION 7131(A) PROVIDES, AS FOLLOWS:
 
    SEC. 7131.  OFFICIAL TIME
 
    (A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
 
    NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER
 SHALL BE AUTHORIZED
 
    OFFICIAL TIME FOR SUCH PURPOSES, INCLUDING ATTENDANCE AT IMPASSE
 PROCEEDING, DURING THE TIME
 
    THE EMPLOYEE OTHERWISE WOULD BE IN A DUTY STATUS.  THE NUMBER OF
 EMPLOYEES FOR WHOM OFFICIAL
 
    TIME IS AUTHORIZED UNDER THIS SUBSECTION SHALL NOT EXCEED THE NUMBER
 OF INDIVIDUALS DESIGNATED
 
    AS REPRESENTING THE AGENCY FOR SUCH PURPOSES.
 
    /6/ SECTION 7131(D) OF THE STATUTE PROVIDES:
 
    SEC. 7131.  OFFICIAL TIME
 
   .          .          .          .
 
 
    (D) EXCEPT AS PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS SECTION--
 
    (1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
 
    (2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS (STATUTE),
 ANY EMPLOYEE IN AN
 
    APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTA