25:0306(21)NG CREA VS LIBRARY OF CONGRESS -- 1987 FLRAdec NG


[ v25 p306 ]
25:0306(21)NG
The decision of the Authority follows:


25 FLRA NO. 21

CONGRESSIONAL RESEARCH EMPLOYEES
ASSOCIATION

                          Union

     and

LIBRARY OF CONGRESS, CONGRESSIONAL
RESEARCH SERVICE

                          Agency

Case No. 0-NG-723

DECISION AND ORDER ON NEGOTIABILITY ISSUES

Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7106(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) an concerns the negotiability of 21 Union proposals. 1

II. Union Proposals 1 and 2

ARTICLE XXV - BUDGETARY INSUFFICIENCIES AND REDUCTIONS IN FORCE

(Union Proposal 1)

Section 1. As a matter of policy, in the case of budgetary insufficiency, the Library agrees, to the extent that it is practicable and not prohibited by law, to resort to reduction-in-force after all other means of coping with the problem have been exhausted. [ v25  p306 ] Such means might include, but are not necessarily limited to: first, every possible effort to control discretionary costs; and second, innovative salary savings solutions.

(Union Proposal 2)

Section 3(F). To minimize the adverse impact on employees, the Library shall, whenever possible, accomplish the goals otherwise achieved by a RIF through attrition and cost reduction efforts before abolishing positions. Cost reduction efforts might include reducing expenditures in the personnel portion of the budget as much as possible, for example, by leaving positions vacant to save salary costs and by reducing non-personnel costs, such as travel, conferences, expenses associated with seminars, and CRS sponsored institutes and purchases of equipment and supplies. The Library agrees to eliminate, whenever possible, the use of contractors, temporary employees, interns, and other non-permanent personnel, prior to the separation of any permanent employee.

A. Positions of the Parties

The Agency contends that Proposals 1 and 2 are mandatory and violate its rights under section 7106(a)(2)(A) of the Statute to layoff, retain and remove employees. The Agency also argues that the specific cost-saving suggestions in the proposals violate its rights to hire, contract, determine the personnel by which agency operations will be conducted, fill positions, determine the methods and means of performing work, and remove employees.

The Union contends that its proposals are discretionary and merely require the Agency to "consider" the alternatives to conducting a reduction in force. It argues that the proposals do not prevent the Agency from "acting at all," and are procedures to be observed by the Agency when it decides to conduct a reduction in force. Additionally, the Union argues as a general matter that the Agency has a duty to negotiate appropriate arrangements for employees adversely affected by the exercise of management rights. [ v25  p307 ]

B. Analysis and Conclusions

1. Management rights

We find that Union Proposals 1 and 2 are mandatory rather than discretionary. The plain meaning of the proposals would require the Agency to exhaust other methods of cutting costs prior to conducting a RIF whenever it was "practicable" or "possible" for the Agency to do so. See American Federation of Government Employees, AFL - CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446, 450-52 (1983) (rejecting union's contention that the phrase "to the extent practicable" removes substantive limitation that proposal would have placed on agency's rights); American Federation of Government Employees, AFL - CIO, National Border Patrol Council and Department of Justice, Immigration and Naturalization Service, 16 FLRA 251, 251-52 (1984) (rejecting union's contention that the phrase "to the maximum extent possible" leaves the agency with discretion to exercise its right to assign work "without inhibition").

Union Proposal 1 would require the Agency to pursue other cost-saving efforts in response to a budgetary shortfall prior to conducting a RIF. Similarly, Union Proposal 2 would require the Agency to reduce costs through attrition and other cost reduction measures prior to conducting a RIF. Proposal 2 would also require the Agency to eliminate the use of contractors, temporary employees, interns and other non-permanent personnel before releasing any permanent employee. In American Federation of Government Employees, AFL - CIO, Local 12 and Department of Labor, 18 FLRA No. 58 (1985) (Union proposals 2 and 4), the Authority found that proposals which would have required the agency to take certain specified personnel actions prior to conducting a RIF placed a condition on management's right to layoff employees in violation of section 7106(a)(2)(A) of the Statute. We find that Proposals 1 and 2 here would similarly prevent the Agency from exercising its right under section 7106(a)(2)(A) to layoff employees unless it took other cost-saving measures first. Union Proposal 1 and the first and second sentences of Union Proposal 2 require the Agency to take cost-saving measures. While the specific measures enumerated in those portions of the proposals are only suggestions, these suggestions involve aspects of management's rights, including the rights to determine the methods and means of performing the Agency's work, to hire employees, and to assign work. Additionally, the last sentence of Proposal 2 would require the Agency to undertake the enumerated measures prior to [ v25  p308 ] separating any permanent employee. These measures would limit the Agency's discretion to retain employees, contract out, determine the types of employees assigned to an organizational subdivision, and determine the personnel by which Agency operations will be conducted. Consequently, for the reasons set forth more fully in Department of Labor, the Authority finds that Union Proposals 1 and 2 directly interfere with the Agency's right to layoff employees and do not constitute negotiable procedure within the meaning of section 7105(b)(2) of the Statute. 2

2. Appropriate arrangements

The Authority finds that the Union intended these proposals as an arrangement for employees adversely affected by the Agency's decision to conduct a RIF. As to whether the proposed arrangement is "appropriate" within the meaning of section 7106(b)(3) of the Statute, subsequent to the filings in this case the Authority issued National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). In that case, we adopted the test for determining whether a proposal is negotiable under section 7106(b)(3) set out by the District of Columbia Circuit in American Federation of Government Employees, Local 2782 v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983), reversing and remanding American Federation of Government Employees, AFL - CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981). In Kansas Army National Guard, slip op. at 8-10, we set forth the actors we will consider in applying that test and determining whether a proposed arrangement is appropriate for negotiation or whether it is inappropriate because it excessively interferes with the exercise of management's rights.

One of the factors to be considered is the nature and extent of the impact experienced by the adversely affected employees. Union Proposals 1 and 2 are concerned with [ v25  p309 ] finding alternatives to the significant negative impact that a RIF would otherwise have upon employees who would be separated. Another factor to be considered is the extent to which the circumstances giving rise to the adverse effects are within an employee's control. As stated in the proposal, the arrangement is concerned with a RIF caused by budgetary insufficiency and not matters within the control of the affected employees.

A third consideration is the nature and extent of the impact on management's ability to deliberate and act pursuant to its statutory rights. Additionally, the Authority will consider whether the negative impact on an agency's rights is disproportionate to the benefit to employees from the proposed arrangement. As discussed above, while Union Proposals 1 and 2 would affect the Agency's discretion with respect to several management rights, the interference with the Agency's exercise of those rights is not absolute--the proposals would not prevent the Agency from exercising the affected rights where it is not possible for the Agency to comply with the proposed conditions precedent to such exercise or if compliance with them is contrary to law. Additionally, as discussed above, the proposal leaves to Agency discretion the determination of which cost-saving measures such as those enumerated in Proposal 1 and the first two sentences of Proposal 2 to implement. By comparison, the benefit to employees of retaining jobs which would otherwise be lost is great. Accordingly, the Authority finds that the benefit from Union Proposal 1 and the first two sentences of Proposal 2 outweighs the burden that the proposed arrangement would have on the Agency's exercise of its rights. However, the Agency is not left with any discretion with respect to the actions specified in the last sentence of Proposal 2. We therefore find that the last sentence of Union Proposal 2 would unduly restrict the Agency in the exercise of its rights and outweigh the benefit to the employees from the proposed amelioration.

The final consideration is the effect of the proposed arrangement upon effective and efficient government operations. We note that the interim Federal Personnel Manual Chapter 351 concerning RIFs provides in subchapter 1-2(b) that "(a)gencies are strongly encouraged to utilize attrition and all other potential alternatives to reduction in force to limit the number of involuntary actions that must be taken. These alternatives are less costly than involuntary actions (e.g., severance pay, unemployment compensation, and retained grade are not required) and also limit the adverse impact on continuing programs." (Emphasis added.) Additionally, subchapter 1-3(b) of the interim FPM chapter [ v25  p310 ] lists actions that agencies might consider as alternatives to releasing personnel in a RIF situation. The alternatives include the separation of temporary employees and reemployed annuitants and freezing hiring and promotions. Although the FPM, like the OPM regulations discussed in footnote 2, does not apply to the unit employees in this case, the similarity between Proposals 1 and 2 and the provisions of the FPM suggests that the proposals would not have a negative impact on government operations.

In view of the above discussion, we find that Union Proposal 1 and the first two sentences of Union Proposal 2 do not excessively interfere with the Agency's right to layoff employees. Consequently, these proposals constitute appropriate arrangements and are within the duty to bargain. The last sentence of Union Proposal 2, however, by requiring the Agency to take the specified actions "whenever possible" prior to separating any permanent employee would excessively interfere with the exercise of management's rights and is outside the duty to bargain.

III. Union Proposals 3 - 5

ARTICLE XXV - BUDGETARY INSUFFICIENCIES AND REDUCTIONS IN FORCE

(Union Proposal 3)

Section 2. Definitions

B. "Retention Preference" means the right of an affected employee to be retained insofar as is possible in the employment of the Library in his or her current position or another position. Retention preference shall be determined first by the type of appointment ranked in the following descending order: permanent, indefinite, permanent-conditional, indefinite-conditional. Next, retention preference shall be based on length of CRS service (intervening military service shall not constitute a break in CRS service). In the case of identical lengths of CRS service, retention preference shall be determined by: (1) length of Library service; (2) the most recent performance rating; and (3) other official written evidence pertaining to performance on the job that was in existence [ v25  p311 ] in the employee's Official Personnel Folder prior to the commencement of the RIF and known to the employee. (Within this proposal, only the underscored portion is in dispute.)

(Union Proposal 4)

Section 3. Reduction in Force General Policy

B. To assure equitable treatment of employees following a RIF, such retention and as assignment shall be based upon retention preference as defined in this Article. The Library may, after consultation wit the Association, restrict the displacement of employees in a particular organizational unit by establishing a percentage beyond which additional displacements will not be allowed when the projected number of displacements would be so great as to have an adverse affect on the unit. (Within this proposal, only the underscored portion is in dispute.)

(Union Proposal 5)

Section 7. General Procedures for Abolishment of Positions and for Placement of Affected Employees

A. The Library, through the Personnel and Labor Relations Office, shall take the following sequential steps using vacant or occupied positions in the Library to resolve the RIF:

Step 1. Using Vacant Same - Graded Positions

Prior to the effective date of a RIF, the Library shall place the affected employee in a vacant position in the same competitive level, or in a position for which the affected employee qualifies and which is at the same grade as his or her current position.

Step 2. Using Occupied Same - Graded Positions

If Step 1, above, is not successful, prior to the effective date of the RIF, the Library [ v25  p312 ] shall place the affected employee in a position occupied by another employee in the same competitive level who has less retention preference.

Step 3. Using Occupied Same - Graded Positions (Retreat Rights)

If Steps 1 and 2, above, are not successful, prior to the effective date of the RIF, the Library shall place the affected employee in another position which the employee held in the past and which is held by an employee with less retention preference.

Step 4. Using Vacant One-Lower-Graded Positions

If Steps 1 through 3, above, are not successful, prior to the effective date of the RIP, the Library shall place the affected employee in a vacant position for which he or she qualifies and which is one grade lower than his or her current position.

Step 5. Using Occupied One-Lower-Graded Positions

If Steps I through 4, above, are not successful, prior to the effective date of the RIF, the Library shall place the affected employee in a position that is one grade lower than his or her current position and which is occupied by another employee who has less retention preference. This position shall:

(a) be in the same or related series as the affected employee's competitive level; and/or

(b) be in a position which the affected employee has held in the past.

Step 6. Using Vacant Two-Lower-Graded Positions

If Steps 1 through 5, above, are not successful, prior to the effective date of the, RIF, the Library shall place the affected employee in a vacant position for which he or [ v25  p313 ] she qualifies and which is two grades lower than his or her current position.

Step 7. Using Occupied Two-Lower-Graded Positions

If Steps 1 through 6, above, are not successful, prior to the effective date of the RIF, the Library shall place the affected employee in a position that is two grades lower than his or her current position and which is occupied by another employee who has less retention preference. This position shall:

(a) be in the same or related series as the affected employee's competitive level (see Step 5.a. above); and/or

(b) be a position which the affected employee has held in the past.

Step B. Using Other Vacant or Occupied Positions Not Addressed Above

If Steps 1 through 7, above, are not successful, prior to the effective date of the RIF, the Library shall repeat procedures for Steps 3 and 7, above, for positions which are three or more grades lower than the affected employee's current position until a placement is made or the employee declines further consideration.

Step 9. For Occupied Entry Level Positions

An affected employee may claim an occupied position at the entry level when that position is in the same series or a related series as the affected employee's position and the incumbent of that position has less retention preference. (Within this proposal, only the underscored portions are in dispute.)

A. Positions of the Parties

The Agency contends that Union Proposals 3-5 interfere with its discretion to determine which employees to retain and which employees to lay off in violation of its rights under [ v25  p314 ] section 7106(a)(2)(A) to hire, assign, layoff, retain or remove employees in the Agency. The Agency also argues that the proposals determine conditions of employment of nonunit employees and go beyond the scope of the union's representation rights.

The union contends the proposals constitute procedures to be observed by management in exercising its right to layoff employees and appropriate arrangements for employees adversely affected by the exercise of that right. The union also contends that the proposal applies only to unit employees.

B. Analysis and Conclusions

1. Management Rights

Union Proposals 3-5 would establish "bumping" rights, that is, the right to displace persons with lower retention standing, for employees who would otherwise be separated because of a RIF. Proposal 3 would establish criteria for determining the order by which employees would be retained in those positions not eliminated in the RIF. The Authority finds that this proposal is to the same effect as Union Proposal 5 in National Treasury Employees Union and Internal Revenue Service, 7 FLRA 275, 286-88 (1981). The proposal in that case similarly would have established a ranking method to determine which employees the agency would furlough once the agency determined it was necessary to layoff employees. The Authority held that the proposal directly interfered with the agency's discretion to determine which employees should be laid off in violation of management's right under section 7106(a)(2)(A) to layoff employees and did not constitute a negotiable procedure under section 7106(b)(2). Accordingly, for the reasons set forth more fully in Internal Revenue Service, we find that union Proposal 3 would likewise directly interfere with the Agency's right to layoff employees and does not constitute a negotiable procedure.

Proposals 4 and 5 seek to establish a method by which employees having greater retention preference based on the ranking criteria set forth in Proposal 3 would displace employees having less retention preference. The Authority finds that these proposals directly interfere with management's rights under the Statute and are not negotiable procedures under section 7106(b)(2). The Union's proposals are to the same effect as the proposal in American Federation of Government Employees, AFL - CIO, Local 1603 and Navy Exchange, Naval Air Station, Patuxent River, Maryland, 9 FLRA 1039 (1982). In that case, the Authority found that a [ v25  p315 ] proposal which applied to employees who also were not covered by OPM RIF regulations and which would have provided "reversion" rights to those employees on the basis of seniority violated the agency's right to assign employees. Proposals 4 and 5 in this case would similarly directly interfere with the Agency's right under section 7106(a)(2)(A) to assign employees to positions.

In addition, Proposal 5 would also directly interfere with the Agency's right under section 7106(a)(2)(C) of the Statute to make selections for positions. Under Proposal 5, the Agency would be required to fill a vacant position if an employee affected by the RIF was qualified for that position, regardless of whether it wished to do so. See, for example, National Association of Government Employees, Local R14-87 and Department of he Army, Kansas Army National Guard, 21 FLRA No. 105 (1986) (Union Proposal 2).

2. Nonunit employees

The Authority has held that a proposal which would directly determine or define conditions of employment only for bargaining unit positions and employees is within the duty to bargain even though it would also indirectly affect employees or positions which were outside the unit. Association of Civilian Technicians, Pennsylvania State Council and Pennsylvania Army National Guard, 14 FLRA 38 (1984) (Union Proposal 1). See also American Federation of Government Employees, Local 32, AFL - CIO and Office of Personnel Management, 22 FLRA No. 49 (1986), petition for review filed sub nom. American Federation of Government Employees, Local 32, AFL - CIO v. Federal Labor Relations Authority, No. 86-1447 (D.C. Cir. August 11, 1986). The Union states that Proposals 3-5 were intended to apply only to employees within the organizational unit covered by its proposal. It contends that any employees bumped into this unit would be covered by its proposals, while employees who are bumped into other units would be covered by whatever agreements or Agency regulations are in effect in that unit. Union Response at 37-38. The unit involved is not subject to the OPM RIF regulations and it is not otherwise apparent that the Union's interpretation of its proposals is inconsistent with any laws or regulations concerning the scope of a competitive area in which employees would compete for remaining positions in a RIF. Accordingly, the Authority adopts the Union's interpretation that its proposals directly affect unit employees only and conclude that Union Proposals 3-5 have only an indirect effect on nonunit employees. [ v25  p316 ]

3. Appropriate Arrangements

The Authority finds that Proposals 3-5 were intended as arrangements for employees adversely affected by the Agency's exercise of its right to layoff employees. As to whether the proposed arrangements are "appropriate" within the meaning of section 7106(b)(3), these proposals, like Proposals 1 and 2, are concerned with ameliorating the adverse effects of a RIF which has a significant impact on the affected employees and results from circumstances outside the employees' control.

As to the burden on management's exercise of its rights under the Statute, Proposal 3 would interfere with the Agency's rights to determine which employees to layoff or retain and which employees to assign to or remove from which positions. Proposal 3 would establish seniority and type of appointment as the criteria for determining which employees have priority in filling positions not abolished in the RIP. The Union contends, and the Agency does not dispute, that the section of the parties' agreement and corresponding Agency regulation currently governing a RIF situation similarly base retention preference upon type of appointment and length of service. Union Response at 28. The Agency has not demonstrated that it could not continue its existing method of determining retention preference under the proposal. Consequently, the burden that the arrangement would place upon the Agency's exercise of its rights is neither excessive in and of itself nor disproportionate in comparison to the benefit to the employees from the proposed arrangement. We conclude, therefore, that Proposal 3 is an appropriate arrangement within the meaning of section 7106(b)(3) and is within the duty to bargain.

Proposals 4 and 5 would establish bumping and retreat rights for employees based upon their retention preference. As discussed above, these proposals would interfere with the Agency's rights to assign employees and make selections for positions. Proposal 4 specifically provides that the Agency may limit the degree to which employees may displace other employees where those displacements would have an adverse effect upon the organizational unit. Additionally, Proposal 5 provides that an employee may only "bump" into a position in the same or related series for which that employee qualifies, or retreat into a position which the employee has held in the past. That is, the Agency retains the discretion to determine the duties of the position to be filled and whether an employee is qualified to perform those duties or, in the case of retreat rights, the Agency has previously determined that the employee was qualified to perform the duties of that [ v25  p317 ] position. Insofar as these matters are concerned, therefore, the proposals do not excessively interfere with management's exercise of its reserved rights to assign employees under section 7106(a)(2)(A). However, the arrangement proposed by Proposal 5 would prevent the Agency from deciding not to fill a vacant position where a qualified employee is available for that position. The Agency would therefore be prevented from keeping a vacant position vacant so that it could save money during the RIF and still preserve the position as part of its organizational structure following the RIF. Since Proposal 5 would completely eliminate the Agency's discretion to elect not to fill the vacant positions involved, that proposed arrangement would excessively interfere with management's right to make selections for positions under section 7106(a)(2)(C). See National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA No. 105 (1986) (Union Proposal 2). Compare National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, Topeka, Kansas, 21 FLRA No. 48 (1986) in which we found a proposal that required the agency to return employees to their former positions only if the positions were vacant and the agency decided to fill them to constitute an appropriate arrangement. Consequently, we find that while union Proposal 4 is within the duty to bargain, Union Proposal 5 does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and is outside the duty to bargain.

IV. Union Proposal 6

ARTICLE XXV - BUDGETARY INSUFFICIENCIES AND REDUCTIONS IN FORCE

Section 2. Definitions

D. "Competitive Level" consists of all positions, occupied or vacant, regardless of work schedules which are (1) in the same series and grade as the affected employee's current position, or (2) in a related series at his or her current grade.

A. Positions of the Parties

The Agency contends that Union Proposal 6 would define which positions require skills, knowledge, and abilities that are interchangeable in violation of its rights under section 7106(a)(2)(A) of the Statute to assign employees, under section 7106(a)(2)(B) to assign work and determine the [ v25  p318 ] personnel by which agency operations will be conducted, and under section 7106(b)(1) to determine the methods and means of performing its work.

The Union states that the proposal seeks to define competitive level for purposes of carrying out the procedures for bumping in Proposal 5 and that it constitutes

a procedure to be observed by the Agency in exercising its right to layoff employees and an appropriate arrangement for employees adversely affected by the exercise of that right.

B. Analysis and conclusions

1. Management rights

The Union intends the term "competitive level" to include all positions in a competitive area that are sufficiently alike so that an employee may be placed into one of the other positions in that level in a RIF. Union Response at 41. The decision as to which positions are in an employee's competitive level therefore requires a determination that the duties of a position require similar skills, knowledge and abilities and that the employee in one position is qualified to perform the duties of the other positions. The determination as to whether a particular employee is qualified to perform the duties of a position is encompassed within management's rights under section 7106(a)(2)(A) to assign employees to positions. See American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 603, 612-14 (1980) (Union Proposals IV, V and VI), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). The determination also involves management's right under se 7106(a)(2)(C) to select for appointment to a position. See National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565, 566-68 (1983) (Union Proposals 1 an 2). By defining the positions in a competitive area for which an employee is qualified, Union Proposal 6 would directly interfere with the Agency's rights to assign employees and make selections for positions. Consequently, Proposal 6 is not a negotiable procedure within the meaning of section 7106(b)(2). In view of this determination, it is unnecessary for us to decide whether the union's proposal would also directly interfere with the Agency's rights to assign work, determine the personnel by which its operations will be conducted, or determine the methods and means of performing its work. [ v25  p319 ]

2. Appropriate arrangements

Union Proposal 6 was intended as an arrangement for employees adversely affected by the Agency's decision to conduct a RIF by defining those positions for which an employee would be qualified under the bumping procedures. The proposed arrangement would allow an employee having sufficient retention standing to bump into a position which is either (1) in the same series and grade as the employee's current position or (2) in a related series at the employee's current grade regardless of whether the Agency has determined the employee to be qualified for the new position. In our view, this proposed arrangement would place a significant burden on the Agency's exercise of its right to assign employees to or make selections for positions by requiring the Agency to place an employee in a position in accordance with the proposal regardless of whether it believes that employee to be qualified for that position. The placement of employees into positions for which they are not qualified could severely hamper the Agency's ability to effectively conduct its day-to-day operations following a RIF. As to the benefit for affected employees, the proposal does not in and of itself establish a right to bump into positions. Instead, it only defines which positions an employee is qualified to bump into. We therefore find that Union Proposal 6 would excessively interfere with the Agency's rights and is outside the duty to bargain.

V. Union Proposals 7 and 8

ARTICLE XXV - BUDGETARY INSUFFICIENCIES AND REDUCTIONS IN FORCE

(Union Proposal 7)

Section 2. Definitions

I. "Reemployment Priority List" refers to a list, established by the Library, of employees affected by a RIF that were not placed in other positions from which the Library shall hire first before seeking outside applicants for appropriate positions coming open during or after a RIF. (Within this proposal, only the underscored portion is in dispute.) [ v25  p320 ]

(Union Proposal 8)

Section 7. General Procedure for Abolishment of Positions and for Placement of Affected Employees

E. The Library shall establish and maintain for at least three years following a RIF a reemployment priority list for employees separated under the provisions of this Article. The Library shall hire first from this reemployment priority list before see outside candidates for appropriate positions coming open during or after the RIF. The affected employees on the list shall have the right of first refusal for any position for which they meet minimal qualifications. Refusal of an offer of a particular position by an affected employee shall in no way abrogate the right of the affected employee to further consideration for other positions for which he or she may be qualified unless the affected employee waives this right through written notification that states they no longer wish to be considered for future positions. A copy of such a written notification is to be delivered to the Association within 2 work days after it has been received by the Library. (Within this proposal, only the underscored portions are in dispute.)

A. Positions of the Parties

The Agency contends that Union Proposals 7 and 8 would require it to hire only from the reemployment priority list in violation of its right under section 7106(a)(2)(C) to fill positions by making selections from any appropriate source. The Agency also argues that the proposals do not concern conditions of employment of unit employees in that they (1) concern reemployment rights of "former employees" who are not within the unit, and (2) would affect hiring in both unit and nonunit positions.

The Union contends that Proposals 7 and 8 constitute appropriate arrangements for employees adversely affected by the Agency's decision to layoff employees. The Union also disputes the Agency's contentions that the proposals do not concern conditions of employment of unit employees. [ v25  p321 ]

B. Analysis and Conclusions

1. Appropriate arrangements

Union Proposals 7 and 8 would establish a reemployment priority list of employees separated because of a RIF from which the Agency would offer appropriate positions which it had decided to fill before seeking other applicants. Proposals 7 and 8 are to the same effect as the proposal which the Authority found to be an appropriate arrangement in National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, Topeka, Kansas, 21 FLRA No. 48 (1986). In that case, we found that a proposal requiring the agency to select employees who were involuntarily downgraded without personal cause to their former positions at their former duty stations if those positions became vacant and the agency decided to fill them did not excessively interfere with the agency's rights to assign employees or fill positions from any appropriate source. Similarly, Proposals 7 and 8 here would benefit employees who lose their positions because of a RIF and would only apply to "appropriate" positions--the Agency retains the discretion to determine whether the position is one for which the affected employee would qualify. Also, the proposals apply only to positions which the Agency has decided to fill. Compare National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA No. 105 (1986) (Union Proposal 2) where we found that a proposal that would have required the agency to place an employee transferred because of a RIF in a vacant position at the employee's original location regardless of whether the agency elected to fill the vacancy or whether the employee was qualified excessively interfered with the agency's rights. Accordingly, the Authority finds that union Proposals 7 and 8 do not excessively interfere with the Agency's rights and are appropriate arrangements within the meaning of section 7106(b)(3).

2. Nonunit employees

We reject the Agency's contentions that the proposals directly determine conditions of employment of nonunit employees. First, the union is not seeking to negotiate on behalf of "former employees." Rather, the reemployment priority list is an arrangement for those employees currently employed by the Agency in the event they should be separated because of a future RIF. Second, since the proposals limit reemployment priority to "appropriate" positions, we find that [ v25  p322 ] the proposals would not require the Agency to offer employees on the list positions outside the bargaining unit. Consequently, we find that Union Proposals 7 and 8 are within the duty to bargain.

VI. Union Proposal 9

ARTICLE XXV - BUDGETARY INSUFFICIENCIES AND REDUCTIONS IN FORCE

Section 3. Reduction in Force General Policy

C. Determination as to the qualifications and eligibility of any affected Library employees for any positions in the CRS shall be made by the Director of CRS.

A. Positions of the Parties

The Agency contends that the proposal, by seeking to define the duties of management personnel, violates its rights to assign work and determine the organization of the Agency. The Agency further argues that the proposal attempts to bargain over responsibilities of nonunit personnel and, therefore, does not concern a condition of employment of unit employees.

The Union contends that the proposal implements the requirement of 2 U.S.C. 166(b)(1) and (2) that the Librarian of Congress grant the Congressional Research Service the "maximum practicable administrative independence."

B. Analysis and Conclusion

We find that Union Proposal 9 is to the same effect as Union Proposal 2 which the Authority found to be outside the duty to bargain in American Federation of Government Employees, AFL - CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440, 442-43 (1982). The Authority held that the proposal in that case, which placed responsibility for work assignments and performance appraisals in an employee's immediate supervisor, would have specified which personnel within the agency would perform certain duties in violation of the agency's right under section 7106(a)(2)(B) to assign work. Union Proposal 9 in this case would similarly place the responsibility of determining the qualifications and eligibility of library employees in the Director of CRS. Even though this designation may be consistent with 2 U.S.C. 166, [ v25  p323 ] based on the reasons set forth more fully in Redstone Arsenal, Union Proposal 9 is contrary to the Agency's right to assign work and is outside the duty to bargain. In view of this determination, it is unnecessary to determine whether the proposal also violates the Agency's right to determine its organization or concerns conditions of employment of nonunit employees.

VII. Union Proposal 10

The majority opinion on this proposal is on page 32 of this decision. Chairman Calhoun's dissenting opinion is on page 34.

VIII. Union Proposal 11

ARTICLE XX - CAREER OPPORTUNITY PLAN

Section 3. The Library agrees that immediately upon signing this Agreement, it will initiate a review of all positions in CRS for the purpose of identifying "COP employees" and positions, and improving and creating career ladders in order to provide greater promotion opportunities for COP employees. This review shall be completed within forty work days of the effective date of this Agreement. Upon completion of the review, the Library shall report to the Association in writing, and shall meet and consult with the Association regarding the findings of such survey. After such consultation, the Library shall immediately create career ladders of at least five grade levels for as many positions in CRS as possible in order to reduce the number of COP employees. (Within this proposal, only the underscored portion is in dispute.)

A. Positions of the Parties

The Agency contends that, since Union Proposal 11 would require it to create five grade levels for positions, it relates to the classification of positions and does not concern a condition of employment under section 7103(a)(14)(B) of the Statute. The Agency also argues that the proposal violates its right to assign work. [ v25  p324 ]

The Union contends that the proposal is discretionary rather than mandatory in nature, and constitutes an appropriate arrangement for employees adversely affected by the Agency's failure to provide promotional opportunities for certain positions.

B. Analysis and conclusions

Contrary to the union's contention, we find that the language of Proposal 11 is mandatory and would require the Agency to create the specified career ladders for those positions where it was possible to do so. See above discussion of union Proposals 1 and 2. Additionally, we find the union's proposal to be outside the duty to bargain for a reason other than those raised by the Agency. In National Association of Government Inspectors and Quality Assurance Personnel, Unit #2 and Naval Air Engineering Center, Lakehurst, New Jersey, 8 FLRA 144 (1982) (Union Proposal I), the Authority found that a proposal that would have required the agency to provide promotional opportunities for certain employees interfered with the agency's right to determine its organization under section 7106(a)(1). Similarly, union Proposal 11 here would require the Agency to modify its organizational structure to provide positions with career ladders of at least five grades. Accordingly, for the reasons set forth more fully in Naval Air Engineering Center, we find that union Proposal 11 would directly interfere with the Agency's right to determine its organization.

The Union intends its proposal to be an arrangement for employees adversely affected by the Agency's decision not to provide promotional opportunities for certain positions. However, the "arrangement" proposed by the Union goes directly to the exercise of the right itself--that is, the union would require the Agency to exercise its right to determine its organization by creating promotional opportunities where the Agency has already decided to exercise that right in the opposite manner. Accordingly, the proposed arrangement would totally abrogate the Agency's exercise of its reserved right and, therefore, excessively interfere with that right. See American Federation of Government Employees, AFL - CIO, Local 3186 and Department of Health and Human Services, Office of Social Security Field Operations, Philadelphia Region, 23 FLRA No. 30 (1986). See also AFGE Local 2782, 702 F.2d at 1188. Consequently, we conclude that Union Proposal 11 is outside the duty to bargain. In view of this determination, we need not decide whether the Union's proposal also concerns the classification of positions or violates the Agency's right to assign work. [ v25  p325  ]

IX. Union Proposals 12 - 14

ARTICLE XX - CAREER OPPORTUNITY PLAN

(Union Proposal 12)

Section B. The Library agrees to make every reasonable effort to establish two research-trainee positions within each research division of CRS each year. These positions shall be filled only by qualified COP employees. (Within this proposal, only the underscored portion is in dispute.)

(Union Proposal 13)

Section 9. When a vacancy occurs in a position within a promotion ladder, COP employees shall be given first notice of the vacancy for a period of five days. If there are no COP employees eligible and qualified for such transfer to the vacancy, or if no eligible and qualified COP employees have applied, the vacancy may thereafter be filled by open posting. (Within this proposal, only the underscored portion is in dispute.)

(Union Proposal 14)

Section 10. If more than one eligible and qualified COP employee applies for the vacancy, the merit selection procedures set out in Article XVIII, of this Agreement shall be applied.

A. Positions of the Parties

The Agency contends that Union Proposals 12-14 violate its right under section 7106(a)(2)(C) to make selections for positions from any appropriate source. The Union argues that its proposals constitute procedures to be observed by the Agency in exercising that right.

B. Analysis and Conclusions

Union Proposal 12 would require the Agency to place qualified Career Opportunity Plan (COP) employees in the research-trainee positions it establishes. Proposal 13 would [ v25  p326 ] require the Agency to hire qualified COP employees first for vacancies occurring in positions within a promotion ladder. Proposal 14 provides a procedure for selecting which of two or more qualified COP employees applying for a vacancy under Proposal 13 should be hired. The Authority finds that these proposals are to the same effect as the fifth proposal in National Federation of Federal Employees, Local 108 and U.S. Department of Agriculture, Arkansas State Office of the Farmers Home Administration, 14 FLRA 19, 23 (1984) which we found to be outside the duty to bargain. In Farmers Home Administration, we found that a proposal which would have allowed employees who met minimum qualifications for newly classified positions to be selected for those positions before incoming personnel violated the agency's right under section 7106(a)(2)(C)(ii) to make selections for positions from any appropriate source. Similarly, Union Proposals 12-14 here would require the Agency to select only COP employees for the specified positions unless none was qualified or eligible. Consequently, for the reasons set forth in Farmers Home Administration, we find that Union Proposals 12-14 would directly interfere with the Agency's right to make selections from any appropriate source and are outside the duty to bargain. Compare Union Proposal 3 in National Treasury Employees Union and Internal Revenue Service, 7 FLRA 275, 284-85 (1981) which the Authority found to be a procedure under section 7106(b)(2) since it only required the agency to consider certain employees first for vacancies but did not prevent the agency from filling those vacancies from other sources.

X. Union Proposal 15

ARTICLE XIX - PROMOTION REVIEW FOR POSITIONS IN PROMOTION LADDERS

Section 9. An employee who has been informed by the division chief that his or her level of performance does not warrant promotion may, within 30 days of the date he or she was so informed, request in writing that his or her work be reviewed at the department level. The employee may be represented for this written request by the Association or some other representative. The review of all such requests shall be completed within 21 days of receipt of the employee's request. The review shall be based solely on the written record, that is, the work file itself, any memo(s) by [ v25  p327 ] the employee justifying his or her promotion, and any memos on the issue from division management which the employee has seen and has had an opportunity to respond to in writing. The departmental reviewer shall have no ex parte contacts with either the employee or division management concerning any particular promotion appeal. If the departmental reviewer agrees that the work does not meet the requirements for promotion, the employee shall immediately be informed in writing of the decision and the reasons therefor. If the departmental reviewer finds that the work meets the requirements for promotion, the employee shall be promoted as of the eligibility, anniversary or target date, as appropriate, and may be paid retroactively from that date, in accordance with applicable law. (Within this proposal, only the underscored sentence is in dispute.)

A. Positions of the Parties

The Agency made a general allegation in its declaration of nonnegotiability that Union Proposal 15 violates its rights under section 7106(a)(2)(A) but did not elaborate upon its allegation in its Statement of Position.

The Union contends its proposal constitutes a procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

The Union's proposal provides that, where an Agency reviewer determines that an employee whose promotion was denied should have been given the promotion, the employee shall be promoted retroactively as of the date he or she would otherwise have been promoted and given back pay in accordance with law. The unit employees subject to the proposal are not subject to OPM regulations concerning promotions and it is not apparent that the Union's proposal is contrary to any other provisions of law or regulation. Compare American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, Washington, D.C., 14 FLRA 6, 15-18 (1984) (Union Proposal 8), enforced sub nom. Federal Labor Relations Authority v. Office of Personnel Management, 778 F.2d 844 (D.C. Cir. 1985) in which the Authority found that a [ v25  p328 ] proposal to make within grade increases retroactive was contrary to OPM regulations in that it would allow such increases to be given retroactively in situations other than those authorized under the regulations. Additionally, the proposal does not require the Agency to promote an employee unless that employee meets the criteria for promotion established by the Agency itself. Also, the proposal provides that any back pay be given only in accordance with applicable provisions of law. We conclude that the Agency has failed to demonstrate that the Union's proposal is contrary to any management rights. Accordingly, Union Proposal 15 is within the duty to bargain.

XI. Union Proposal 16

ARTICLE XIX - PROMOTION REVIEW FOR POSITIONS IN PROMOTION LADDERS

Section 13. The Library agrees to meet, consult, and negotiate with the Association regarding any proposals to change promotion standards or guidelines currently in effect.

A. Positions of the Parties

The Agency contends that Union Proposal 16 would require it to negotiate over the content of performance standards in violation of its rights under section 7106(a)(2)(A) and (B) to direct employees and assign work.

The Union disputes the Agency's contentions and argues that its proposal constitutes an appropriate arrangement for employees adversely affected by the Agency's decision to promulgate performance standards.

B. Analysis and Conclusions

It is well established that an agency has an obligation to negotiate concerning procedures to be observed in the development and implementation of performance standards and appropriate arrangements for employees adversely affected by the application of those standards to them. See National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 768 (1980), affirmed sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982). However, the Union's proposal is not limited to negotiations of such procedures and arrangements. Rather, the proposal [ v25  p329 ] would require the Agency to negotiate concerning the content of performance standards themselves which, as we held in Bureau of the Public Debt, violates management's rights to direct employees and assign work. Additionally, we find that it is the application rather than the promulgation of performance standards which adversely affects employees. Since the Union's proposal is concerned with the promulgation of such standards, it does not constitute an appropriate arrangement. See Department of Health and Human Services, Social Security Administration v. Federal Labor Relations Authority, 791 F.2d 324 (4th Cir. 1986), reversing National Federation of Federal Employees, Council of Consolidated SSA Locals and Department of Health and Human Services, Social Security Administration, 17 FLRA 657 (1985) (Union Proposal 1). Accordingly, for the reasons set forth more fully in Bureau of the Public Debt, Union Proposal 16 is outside the duty to bargain.

XII. Union Proposal 17

ARTICLE XI - RIGHTS OF EMPLOYEES

Section 1.

Each employee has the right to have an Association representative present at any meeting or discussion with a Library management official or supervisor. An employee may refuse to attend any such meeting or to participate in any such discussion if denied the right to have a representative present. An employee may exercise this right at any time, and may halt a meeting in progress in order to obtain representation. The Library shall annually notify unit employees of their right to be represented as provided in this Article, and shall notify each individual employee of this right before each meeting is conducted. (Within this proposal, only the underscored sentence is in dispute.)

A. Positions of the Parties

The Agency contends that the Union's proposal would require that the Agency permit representation for employees at [ v25  p330 ] meetings in addition to those involving conditions of employment. The Agency argues that the proposal violates its rights to direct employees and assign work.

The Union argues that the proposal is necessary to prevent employees from being harassed during meetings and constitutes a procedure under section 7106(b)(2) and an appropriate arrangement under section 7106(b)(3).

B. Analysis and Conclusions

The Authority has held that an Agency's duty to negotiate concerning representation of employees is not limited to the rights given employees to such representation under section 7114(a)(2) of the Statute. See American Federation of Government Employees, AFL - CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347, 354-57 (1982) (Union Proposal 5), reversed as to other matters sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority, 709 F.2d 724 (D.C. Cir. 1983). However, the Union's proposal in this case would do more than provide procedural protections for employees. Union Proposal 17 would not just create a right to have a representative present at meetings with management officials that an employee could raise in a subsequent grievance. The proposal would also allow an employee to refuse to attend such meetings or participate in discussions. Such a refusal would directly interfere with the Agency's ability to supervise employees in violation of its right under section. 7106(a)(2)(A) to direct employees. See Navy Public Works Center v. Federal Labor Relations Authority, 678 F.2d 97 (9th Cir. 1982), reversing International Brotherhood of Electrical Workers, AFL - CIO, Local 1186 and Navy Public Works Center, Pearl Harbor, Honolulu, Hawaii, 4 FLRA 217 (1980).

Union Proposal 17 was intended as an arrangement for employees adversely affected by the Agency's exercise of its right to direct employees. The proposed arrangement, however, is not limited to providing representation for employees in meetings related to disciplinary action as in Immigration and Naturalization Service, or classification matters as in American Federation of State, County and Municipal Employees, AFL - CIO, Local 2027 and Action, Washington, D.C., 12 FLRA 643, 644-45 (1983) (Union Proposal 1). Instead, the Union's proposal would provide for union representation in any meeting or any discussion with a supervisor or manager regardless of the subject. For example, the proposal would allow an [ v25  p331 ] employee to request representation anytime a supervisor wanted to discuss a work assignment. Further, the proposal does not merely grant employees the right to representation but would also allow them to refuse to attend the meeting or discussion if denied representation. The proposed arrangement would severely hamper the Agency's ability to conduct its day-to-day operations if representation had to be provided before any meeting between a supervisor and an employee could be held. Although the harassment of employees is not a matter to be taken lightly, the Union's proposed solution would excessively interfere with the Agency's rights. Consequently, Union Proposal 17 does not constitute an appropriate arrangement and is outside the duty to bargain.

XIII. Union Proposal 18

ARTICLE XI - RIGHTS OF EMPLOYEES

Section 9(B). In any section of CRS where the practice has been that the employee gives notice before visiting one of the offices or officials listed above, an employee will be allowed to visit them after proper notice has been given to his or her supervisor. A supervisor may require an employee to delay such a visit when workloads or other organizational needs require that the employee remain at the worksite. Such requirements may not be arbitrary, capricious, or discriminatory. (Within this proposal, only the underscored sentence is in dispute.)

A. Positions of the Parties

The Agency contends that Union Proposal IS would interfere with its rights to direct employees and assign work. The Union disputes the Agency's contentions and argues that its proposal does not prevent the Agency from "acting at all."

B. Analysis and Conclusions

We find that the Agency's contentions are based upon a misinterpretation of the Union's proposal. Nothing in the language of Union Proposal 18 supports the Agency's interpretation that the proposal would allow unit employees to leave the work area at will without giving notice to the employee's supervisor. Instead, the proposal specifically provides that the employee will give proper notice to his or [ v25  p332 ] her supervisor. Also, the proposal gives the supervisor the right to have the employee delay the requested visit where required by workload or other organizational needs. Consequently, we find that Union Proposal 18 constitutes a negotiable procedure which is not inconsistent with any management rights and is within the duty to bargain.

XIV. Union Proposal 19

ARTICLE XI - RIGHTS OF EMPLOYEES

Section 13. The Library recognizes the employees' right of privacy, particularly with regard to conduct out of duty hours and off Library premises. Subject to meeting suitability standards to obtain necessary clearances for sensitive and non-sensitive positions, an employee's initial or continued employment shall be judged solely on his or her ability to meet the requirements of the requisite position.

A. Positions of the Parties

The Agency contends that Union Proposal 19 would prevent it from taking disciplinary action against employees on the basis of off-duty conduct in violation of management's right under section 7106(a)(2)(A) to discipline employees. The Union contends that its proposal establishes a general, nonquantitative standard by which employees' conduct and any action by the Agency on the basis of that conduct will be judged. The Union argues that the proposal is negotiable in that it does not prevent the Agency from "acting at all."

B. Analysis and Conclusions

In American Federation of Government Employees, AFL - CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982) (Union Proposal 1), the Authority held that a proposal prohibiting the agency from discriminating against an employee based on conduct not affecting job performance did not violate the agency's right to impose discipline. Similarly, Union Proposal 19 here would not prevent the Agency from taking disciplinary action against employees on the basis of off-duty conduct. The proposal merely provides that an employee shall be judged only on the ability to meet the requirements of the requisite position. The Agency retains discretion to [ v25  p333 ] determine the requirements of the position and whether an employee's off-duty conduct is related to the ability to' meet those requirements. Should the Agency determine that an employee's off-duty conduct affects his or her ability to meet the position's requirements, including those relating to suitability for continued employment, because, for example, the employee's conduct constitutes a conflict of interest or a threat to national security, the Agency could still take appropriate action. Consequently, for the reasons set forth in Redstone Arsenal, Union Proposal 19 is within the duty to bargain. Compare Defense Logistics Agency Council of AFGE Locals, AFL - CIO and Department of Defense, Defense Logistics Agency, 24 FLRA No. 40 (1986), where a provision relating to off-duty conduct was found to be nonnegotiable essentially because it conflicted with Government-wide regulations which are not applicable to employees of the Library of Congress. The provision in that case also directly interfered with management's right to discipline because it placed substantive limitations on the agency's reserved discretion to take disciplinary actions based on off-duty conduct "in accordance with applicable laws."

XV. Union Proposal 20

ARTICLE VI - ASSOCIATION REPRESENTATIONAL ACTIVITIES

Section 13(A). The Library shall not assign unit employees to represent other CRS or Library personnel.

A. Positions of the Parties

The Agency contends and the Union disputes that Union Proposal 20 would prohibit it from assigning work to employees in violation of its right under section 7106(a)(2)(B) to assign work.

B. Analysis and Conclusion

Union Proposal 20 is to the same effect as the proposal which the Authority held to be outside the duty to bargain in Association of Civilian Technicians and State of Georgia National Guard, 2 FLRA 580, 582-583 (1980). In that case, the Authority found that a proposal that would have prevented the agency from assigning certain duties to employees even if those duties were included in an employee's position description violated the agency's right to assign work. Similarly, the Union's proposal here would prohibit the Agency from assigning unit employees to represent other employees [ v25  p334 ] even if that were part of the unit employee's position description. Consequently, for the reasons set forth in State of Georgia National Guard, Union Proposal 20 violates management's right to assign work and is outside the duty to bargain.

XVI. Union Proposal 21

ARTICLE XI - RIGHTS OF EMPLOYEES

Section 14. The Library of congress shall be responsible to pay for or reimburse an employee for reasonable costs of defending that employee in any legal action or with respect to any liability arising from an employment activity engaged in by the employee at the direction, instruction, or order of the employee's supervisor or other management personnel.

A. Positions of the Parties

The Agency contends that the union's proposal is outside the duty to bargain in that it does not provide that the payment of costs for or reimbursement of an employee be consistent with the requirements of law. The union makes no argument with respect to the negotiability of the proposal in its Response to the Agency's Statement of Position.

B. Analysis and Conclusion

An agency has discretion to use appropriated funds to provide representation for an employee when the agency determines that representation of the employee is in the government's interest and the conduct in question was in furtherance of an agency function. See Matter of Securities and Exchange Commission, 58 Comp. Gen. 613, 616 (1979). Generally, representation of the employee is in furtherance of an agency function when the matter was within the scope of employment, that is, when the employee's conduct was in furtherance of or incident to carrying out official duties. See Matter of International Trade commission, 61 Comp.Gen. 515, 516 (1982). However, situations may arise in which an employee would not be entitled to such representation or to have a judgment against that employee paid by the agency. For example, in National Federation of Federal Employees, Local 1300 and General Services Administration, 18 FLRA No. 97, slip op. at 12-13 (1985), the Authority held a proposal requiring the agency to reimburse employees for the costs of defending themselves in connection with an internal investigation in [ v25  p335] which they were found innocent or the charges were dropped to be outside the duty to bargain. The Authority found that the proposal in that case was contrary to law in that there was no statutory authority authorizing the agency to pay the employees' legal costs in those circumstances. Union Proposal 21 here would require the Agency to reimburse employees regardless of whether there was statutory authority for the Agency to make such payments. Consequently, we conclude that union Proposal 21 is outside the duty to bargain.

XVII. Order

The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning union Proposal 1, the first two sentences of Proposal 2, and Proposals 3, 4, 7, 8, 15, 18 and 19. 3 The Union's petition for review as to the last sentence of Union Proposal 2 and as to Union Proposals 5, 6, 9, 11-14, 16, 17, 20 and 21 is dismissed.

Issued, Washington, D.C., January 20, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v25  p336 ]

Union Proposal 10

ARTICLE XXV - BUDGETARY INSUFFICIENCIES AND REDUCTIONS IN FORCE

Section 5. Hiring Freeze - Upon notification to the affected employee(s) with respect to a RIF, the Library shall impose a freeze on positions in those series that are identified by the affected employee's competitive level and for which he or she qualifies. A hiring freeze under the terms of this Section will be for at least 90 work days. The freeze shall not be lifted until the Library has consulted with the Association regarding the placement of affected employees. (Within this proposal, only the underscored portion is in dispute.)

The Agency contends that the hiring freeze imposed by union Proposal 10 is directly and integrally related to the numbers and types of employees in the Agency and is therefore negotiable only at its election. The Agency also argues that the proposal would require it to freeze nonunit as well as unit positions and, consequently, does not concern a condition of employment of unit employees.

The Union contends its proposal constitutes an appropriate arrangement for employees adversely affected by a RIF. The union also states that its proposal applies only to unit positions.

Majority Opinion

Proposal 10 would suspend the filling of any bargaining unit position for which employees affected by the RIF are qualified for at least ninety work days after notification to affected employees. The proposal is to the same effect as the proposal found to be negotiable in our Supplemental Decision in National Treasury Employees Union and Department of Energy, 24 FLRA No. 5-2 (1986). Like the proposal in Department of Energy, Proposal 10 in this case would merely delay management's exercise of its rights to select an employee from any appropriate source under section 7106(a)(2)(C)(ii) of the Statute and to hire employees under section 7106(a)(2)(A). The delay would occur only when (1) there is a qualified individual in the bargaining unit, (2) that employee is affected by the RIF, and (3) management decides not to select [ v25  p337] that employee. In addition, the Agency is not prohibited from detailing an employee to a position covered by the proposal. For the reasons stated more fully in Department of Energy