25:0987(83)NG - AFGE Local No. 12 and Labor -- 1987 FLRAdec NG



[ v25 p987 ]
25:0987(83)NG
The decision of the Authority follows:


 25 FLRA No. 83
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES 
 LOCAL NO. 12
 Union
 
 and
 
 U.S. DEPARTMENT OF LABOR
 Agency
 
                                            Case No. 0-NG-981
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and concerns the
 negotiability of seven Union proposals.
 
                          II.  Procedural Issues
 
    The Agency contends that the petition for review should be dismissed
 because the Union did not provide an explicit statement of the meaning
 to be given to the disputed proposals.  The Union did not file a
 response.  With the exception of Proposal 5, we find that the meaning of
 the proposals is clear and that the petition complies with the
 Authority's Rules and Regulations.  See American Federation of
 Government Employees, AFL-CIO, Local 3004 and Department of the Army and
 Air Force, National Guard Bureau, 15 FLRA 270, at n.1 (1984).  Our
 reasons for finding that Proposal 5 is not sufficiently clear for us to
 decide its negotiability are fully set forth in the analysis of that
 proposal.
 
    The Agency also asserts that it has no duty to bargain concerning
 Proposals 1, 3, 4, 5, 6 and 7 because they are governed by provisions in
 the parties' Agreement and/or by Agency regulations which have already
 been negotiated and incorporated into the Agreement.  Because of the
 claimed existence of threshold issues concerning the duty to bargain the
 Agency contends that the Authority has no jurisdiction to decide the
 negotiability issues in this case.  This contention cannot be sustained.
  Under section 7117(c) of the Statute, a union is entitled to a decision
 by the Authority as to whether a proposal is negotiable under the
 Statute, despite the existence of other issues in the case, for example,
 an alleged conflict between a proposal and a controlling agreement.
 American Federation of Government Employees, Local 2736 v. FLRA, 715
 F.2d 627, 631 (D.C. Cir. 1983).  Moreover, the record in this case does
 not provide any basis upon which to substantiate the Agency's assertions
 that the proposals are governed by provisions in the parties' Agreement.
  To the extent that there are factual issues regarding the duty to
 bargain in the specific circumstances of this case, such as whether the
 disputed proposals have already been bargained between the parties,
 these issues should be resolved in other appropriate proceedings.  See
 American Federation of Government Employees, AFL-CIO, Local 2736 and
 Department of the Air Force, Headquarters 379th Combat Support Group
 (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).
 Thus, the Union's proposals in this case are properly before us under
 section 7105(a)(2)(E) and section 7117(c) of the Statute.
 
           III.  Preliminary Discussion Concerning "Appropriate
 
                Arrangements" Under Section 7106(b)(3)
 
    In National Association of Government Employees, Local R14-87 and
 Kansas Army National Guard, 21 FLRA No. 4 (1986), the Authority adopted
 the "excessive interference" test set forth in American Federation of
 Government Employees, AFL-CIO, Local 2782 v. FLRA, 702 F.2d 1183 (D.C.
 Cir. 1983), for determining whether a proposal constitutes a negotiable
 "appropriate arrangement" under section 7106(b)(3) of the Statute.  The
 Authority also stated that in order for a proposal to be considered
 under section 7106(b)(3) the union must first show that employees have
 been or will be adversely affected by an exercise of a management right
 and that its proposal is intended to mitigate against those adverse
 effects.  In American Federation of State, County, and Municipal
 Employees, Local 3097 and Department of Justice, 24 FLRA No. 49 (1986),
 it was stated that in cases filed before Kansas Army National Guard,
 like this case, the Authority will examine the record to determine
 whether any adverse effects have been identified or whether such effects
 are reasonably foreseeable based upon the nature of the matter in
 dispute.  We have consistently considered proposals relating to the
 effect of a reduction-in-force (RIF) on employees under section
 7106(b)(3) because the adverse effect on employees of a RIF action is
 clear.  See, for example, International Plate Printers, Die Stampers and
 Engravers Union of North America, AFL-CIO, Local 2 and Department of the
 Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA
 No. 9 (1987) and National Treasury Employees Union and Department of
 Energy, 24 FLRA No. 52 (1986).  For that reason, because the proposals
 at issue here concern union attempts to mitigate against the adverse
 effect on employees of a RIF, reorganization, or downgrading, we will
 consider the negotiability of these proposals under section 7106(b)(3)
 of the Statute, where necessary.
 
                              IV.  Proposal 1
 
          Section 1:  All positions throughout the National Office of the
       Department of Labor will be frozen pending placement of all
       employees at ETA adversely affected by the RIF, reorganization,
       downgrading (RRD).
 
                        A.  Position of the Agency
 
    The Agency contends that Proposal 1 is not negotiable because it
 conflicts with the Agency's rights under section 7106(a) and because it
 involves a permissive subject of bargaining under section 7106(b)(1) of
 the Statute concerning which the Agency has elected not to bargain.
 
                               B.  Analysis
 
             1.  Effect of the Proposal on Management's Rights
 
    Proposal 1 requires the imposition of a freeze on the filling of all
 vacancies throughout the Agency's National Office until all employees
 adversely affected by a RIF, reorganization, or downgrading (RRD) have
 been placed.  It is not clear from the record whether the proposed
 freeze is to take effect before or after the effective date of a RIF,
 reorganization, or downgrading.  When the freeze takes effect, however,
 is irrelevant, because in either situation the proposal requires
 management to act in a manner inconsistent with its reserved rights
 under section 7106 of the Statute.  As to the freeze itself, there is
 nothing in the express language of the proposal or in the record before
 us which indicates that the Agency would be able to hire an employee
 from outside the bargaining unit to fill a vacancy in the National
 Office even if none of the employees affected by the RRD qualified for
 that vacancy.  That is, the proposal imposes an absolute and indefinite
 freeze on filling positions until all affected employees are in some
 manner placed, regardless of their qualifications or the availability of
 vacancies for which they would be eligible.
 
    This proposal is to the same effect, therefore, as the proposal found
 nonnegotiable in National Federation of Federal Employees, Local 1332
 and Headquarters, U.S. Army Materiel Development Command, Alexandria,
 Virginia, 3 FLRA 611 (1980).  The proposal in that case would have
 precluded the agency from hiring new employees of the requisite types,
 at the requisite grades, and in the necessary numbers to meet changes in
 the agency's mission requirements unless an exception was granted by a
 joint labor-management board.  The Authority held that the proposal
 required negotiation on a matter which is directly and integrally
 related to the numbers and types of employees to be employed, a matter
 about which an agency may elect not to negotiate under section
 7106(b)(1) of the Statute.  Thus, based on U.S. Army Materiel
 Development Command, the proposal in this case also is integrally
 related to management's right under section 7106(b)(1) to determine the
 numbers, types, and grades of employees to be assigned to an
 organizational subdivision;  that is, the National Office.  Because the
 Agency has elected not to bargain on Proposal 1, it is outside the
 Agency's duty to bargain.  The proposal is distinguishable from the
 proposal found negotiable in National Treasury Employees Union and
 Department of Energy, 24 FLRA No. 52 (1986) (Chairman Calhoun concurring
 in the result).  The proposal in that case would not have prevented the
 agency from hiring additional employees from outside the unit when there
 are no eligible employees within the unit.
 
    Moreover, Proposal 1 requires that before management could even
 contemplate filling vacancies in the National Office, either before or
 after the effective date of a RRD, management would first be required to
 place, that is, assign, all employees affected by the RRD.  By thus
 requiring management to place affected employees, the proposal directly
 interferes with management's right under section 7106(a)(2)(A) to assign
 employees in the agency.  See 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, 443-44 (1982).
 In this circumstance, the proposal would condition the exercise of
 management's right under section 7106(b)(1) to determine the numbers,
 types, and grades of employees assigned to an organizational subdivision
 on the prior exercise of its right under section 7106(a)(2)(A) to assign
 employees.  In so doing, Proposal 1 would interfere with those rights
 both individually and collectively.  See, for example, American
 Federation of Government Employees, AFL-CIO, Local 12 and Department of
 Labor, 18 FLRA No. 58 (1985) (Proposal 2).
 
    Finally, if the proposal is also interpreted to require that
 vacancies in the National Office be filled with employees affected by a
 RRD, either before or after the effective date of a RIF, the proposal
 would interfere with management's right under section 7106(a)(2)(C) of
 the Statute to fill or not to fill positions and to select from any
 appropriate source.  Similarly, to the extent that the proposal would
 apply outside the context of a RIF, the proposal is inconsistent with
 Requirement 4 of Federal Personnel Manual, Chapter 335, Subchapter 1-4
 because the proposal requires management to fill vacant positions
 through reassignment of affected employees.  The proposal dictates the
 source from which the Agency must select candidates to fill those vacant
 positions, in conflict with the discretion provided management under the
 Government-wide regulation.  Compare National Treasury Employees Union
 and Department of Energy, 24 FLRA No. 52 (1986), slip op. at 4, with the
 Decision and Order on Remand in American Federation of Government
 Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the
 Census, Washington, D.C., 14 FLRA 801 (1984), affirmed sub nom. AFGE,
 Local 2782 v. FLRA, 803 F.2d 737 (1986).
 
         2.  Whether the Proposal is Negotiable as An "Appropriate
 
                Arrangement" Under Section 7106(b)(3)
 
    We find that Proposal 1 does not constitute an "appropriate
 arrangement" within the meaning of section 7106(b)(3).  To the extent
 that the proposal would mitigate against the adverse effect on employees
 of a RIF, or a reorganization or downgrading in the context of a RIF, by
 requiring reassignment of all affected employees, it would completely
 eliminate management's discretion as to whether to reassign those
 employees, as well as its discretion to decide how many or which
 employees to reassign, or whether the employees to be reassigned were
 qualified for the vacant positions.  In essence, therefore, this
 proposal would completely abrogate management's right to assign
 employees.  Proposals which totally abrogate the exercise of a
 management right excessively interfere with that right and do not
 constitute "appropriate arrangements." 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) (Proposal 1);  Federal Union of Scientists
 and Engineers and Department of the Navy, Naval Underwater Systems
 Center, 22 FLRA No. 83 (1986).  To the extent that the proposal concerns
 a reorganization or downgrading outside the context of a RIF, even if in
 this respect it were found to be an "appropriate arrangement" under
 section 7106(b)(3), it would nevertheless be barred by an applicable
 Government-wide regulation.  See Bureau of the Census, 14 FLRA 801
 (1984).
 
                              C.  Conclusion
 
    For the reasons and cases discussed above, we conclude that Proposal
 1 is outside the duty to bargain.
 
                              V.  Proposal 2
 
          Section 8:  All personnel actions (new hires, transfers, etc.)
       from June 30, 1983 on, shall be terminated.  The employees shall
       be returned to their previous employment status.
 
                        A.  Position of the Agency
 
    The Agency argues that Proposal 2 is nonnegotiable because it
 interferes with management's rights to hire, assign and direct employees
 under section 7106(a)(2) of the Statute.
 
                       B.  Analysis and Conclusions
 
             1.  Effect of the Proposal on Management's Rights
 
    This proposal would require the Agency to undue all hiring and
 assignment actions taken after a specified date and reassign affected
 employees to their previous positions.  The proposal is nonnegotiable.
 Just as management may not be prevented through negotiation from hiring
 persons from outside the agency or from reassigning employees to
 positions within the agency, National Treasury Employees Union and
 Department of the Treasury, 21 FLRA No. 113 (1986) (assign), management
 may not be required through negotiation to undo a hiring or assignment
 action once that action has been taken.  The substantive effect on
 management's rights is the same in either case, namely, the negation of
 the exercise of the right.  Compare 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, 443-44 (1982)
 (proposal requiring management to hire or assign employees with
 specified qualifications held inconsistent with management's rights to
 hire and assign or to decide not to take such actions).  By requiring
 the reversal of hiring and assignment actions taken after a certain
 date, Proposal 2 directly interferes with management's rights under
 section 7106(a)(2)(A) to hire persons from outside the Agency and to
 assign employees within the Agency.
 
         2.  Whether the Proposal is Negotiable as An Appropriate
 
                Arrangement Under Section 7106(b)(3)
 
    When read in conjunction with Proposal 1, Proposal 2 appears to be
 intended to free up positions which had been filled after the specified
 date so as to make them available during the proposed freeze for
 reassignment of employees adversely affected by a RIF, reorganization or
 downgrading.  That is, the proposal seeks to mitigate against
 foreseeable adverse effects on employees by creating vacant positions.
 We find, therefore, that it is intended to be an "arrangement" for
 employees adversely affected by management's decision to conduct a RIF,
 to reorganize, or to downgrade employees.
 
    As to whether Proposal 2 is an "appropriate" arrangement, in
 attempting to undo previous management actions, it has an effect similar
 to the proposal at issue in National Federation of Federal Employees,
 Local 1945 and U.S. Department of the Interior, Bureau of Land
 Management, 25 FLRA No. 55 (1987).  In that case, the proposal required
 the agency to reverse its decision to operate only one shift.  We held
 that because the proposal in that case would completely reverse the
 substantive effect of a management decision under section 7106 it did
 not constitute an appropriate arrangement under section 7106(b)(3).  See
 also National Association of Government Employees, Local R7-23 and
 Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA No.
 97 (1986) (Proposal 3).  Similarly, because Proposal 2 here would
 completely reverse management's actions in hiring and assigning it is
 not an "appropriate" arrangement within the meaning of section
 7106(b))3) of the Statute.  Proposal 2, therefore, is outside the
 Agency's duty to bargain.
 
                              VI.  Proposal 3
 
          Section 9:  Part-time positions shall be impacted at a
       percentage rate equal to full time permanent positions.
 
                        A.  Position of the Agency
 
    The Agency asserts that Proposal 3 is nonnegotiable because it
 conflicts with 5 C.F.R. Section 351.403(b)(4).  The Agency also contends
 that the proposal is nonnegotiable because it would affect the numbers
 and types of positions assigned to an organizational unit and therefore
 concerns a permissive subject of bargaining under section 7106(b)(1) of
 the Statute, over which the Agency has elected not to bargain.
 
                       B.  Analysis and Conclusions
 
             1.  Effect of the Proposal on Management's Rights
 
    We find Proposal 3 to be nonnegotiable on a different ground from
 those alleged by the Agency.  Specifically, this proposal would require
 the Agency to layoff a certain number of employees in order to assure
 that, in the event of a RIF, reorganization or employee downgrading,
 full-time positions are affected at a percentage rate equal to part-time
 positions.  This proposal is to the same effect as Proposal 8 in
 American Federation of Government Employees, AFL-CIO, Local 12 and
 Department of Labor, 18 FLRA No. 58 (1985), requiring that "the
 employee-supervisory ratio before the RIF will be maintained during and
 following the RIF." In that case, the Authority held that the proposal
 violated management's right under section 7106(a)(2)(A) of the Statute
 to "layoff" employees because it would interfere with the agency's
 discretion to determine which positions to abolish and which employees
 to layoff.  Proposal 3 in this case would, in like manner, interfere
 with the Agency's discretion to determine which positions to abolish and
 which employees to layoff.
 
         2.  Whether the Proposal is Negotiable as An "Appropriate
 
                Arrangement" Under Section 7106(b) (3)
 
    We find that Proposal 3 is intended to be an "arrangement" for
 part-time employees who would be adversely affected, perhaps
 disproportionately, by management's decision to conduct a RIF, to
 reorganize, or to downgrade employees.  The proposal would lessen the
 impact of those actions on part-time employees by making them
 proportional to the actions taken against full-time employees.  The
 proposal is not, however, an "appropriate" arrangement under section
 7106(b)(3) because it would totally abrogate management's discretion as
 to the elimination of part-time positions.  We find, therefore, that
 Proposal 3 excessively interferes with management's right to layoff
 employees under section 7106(a)(2)(A) and is outside the Agency's duty
 to bargain.  Accordingly, we do not reach other arguments as to the
 nonnegotiability of the proposal.
 
                             VII.  Proposal 4
 
    The FLRA Members disagree over the negotiability of this proposal.
 The majority opinion on Proposal 4 is on page 13 of this decision;
 Chairman Calhoun's dissent is on page 15.
 
                             VIII.  Proposal 5
 
          Section 11:  The RRD shall not be run until at least 120 days
       after providing Local 12 with the information request accompanying
       these proposals.
 
                        A.  Position of the Agency
 
    The Agency argues that this proposal, by restricting the Agency's
 ability to conduct a RIF and any subsequent organizational changes,
 conflicts with management's right, under 7106(a)(2)(A) of the Statute,
 to layoff and/or assign employees.
 
                               B.  Analysis
 
    Proposal 5 provides for a delay in implementing an RRD -- a RIF,
 reorganization or employee downgrade -- until at least 120 days after
 the Union is provided with "the information request accompanying these
 proposals." The Union has not provided the Authority with a copy of, or
 any information concerning, its "information request." Thus, we cannot
 assess whether it is possible for the Agency to provide the information
 sought.  If the Union's request is for information which does not exist,
 the RRD would be delayed indefinitely.
 
    It is well established that the parties bear the burden of creating a
 record upon which the Authority can make a negotiability determination.
 National Federation of Federal Employees, Local 1167 v. Federal Labor
 Relations Authority, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'g National
 Federation of Federal Employees, Local 1167 and Department of the Air
 Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air
 Force Base, Florida, 6 FLRA 574 (1981).  See also American Federation of
 Government Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA
 550 (1985).  The Union in this case has not satisfied its burden of
 creating a record upon which the Authority can make a negotiability
 determination with respect to Proposal 5.
 
                              C.  Conclusion
 
    Because this proposal does not set forth sufficient information to
 enable us to determine whether it is within the duty to bargain, the
 petition for review as to the proposal must be dismissed.  Accordingly,
 it is unnecessary to consider the Agency's argument that Proposal 5
 conflicts with management's right to assign or layoff employees under
 section 7106(a)(2)(A) of the Statute.  Nor do we need to consider
 whether the proposal constitutes an "appropriate arrangement" within the
 meaning of section 7106(b)(3).
 
                              IX.  Proposal 6
 
          Section 12:  Employees accepting a lower-graded position in the
       DOL, prior to, and after the effective date of the RRD, shall have
       pay retention for 2 years.
 
                        A.  Position of the Agency
 
    The Agency argues that it does not have a duty to bargain over
 Proposal 6 because grade and pay retention are covered by FPM Chapter
 536, which was incorporated into the parties' collective bargaining
 agreement.
 
                        B.  Analysis and Conclusion
 
    Proposal 6 would require the Agency to provide pay retention for 2
 years to employees who, either before or after the RRD, voluntarily
 accept a lower-graded position.  By its terms, the proposal therefore
 would require the Agency to provide pay retention in all circumstances
 where an employee voluntarily accepts a lower graded position.  In this
 regard, we note that 5 U.S.C. Section 5363(c), which governs pay
 retention in the Federal service, sets out several exceptions to the
 blanket granting of pay retention to Federal employees.  /1/ There is no
 indication in the record, nor is it otherwise apparent, that the Union
 intended to incorporate by reference the statutory exceptions.
 Consequently, by requiring pay retention for employees in all
 circumstances where the employee voluntarily accepts a lower-graded
 position, including circumstances specifically prohibited by statute,
 Proposal 6 conflicts with 5 U.S.C. Section 5363(c) and is outside the
 duty to bargain under section 7117(a)(1) of the Statute.  Moreover,
 because we find that Proposal 6 is inconsistent with law, we do not need
 to decide whether it would constitute an "appropriate arrangement"
 within the meaning of section 7106(b)(3) of the Statute.  See National
 Federation of Federal Employees, Local 29 and Department of the Army,
 Kansas City District, Corps of Engineers, 21 FLRA No. 31 (1986).
 
                              X.  Proposal 7
 
          Section 13:  Employees receiving specific RIF notices will not
       be separated or downgraded for at least 30 work days from the date
       or receipt of the specific notice.
 
                        A.  Position of the Agency
 
    According to the Agency, Proposal 7 directly conflicts with the
 notice provision of an Agency regulation, DOL Supplement to FPM 351,
 Appendix F, which had been bargained on and incorporated into the
 parties' Agreement.
 
                               B.  Analysis
 
    The Agency contends that Proposal 7 concerns matters relating to
 notice periods in a RIF which are covered by the parties' Agreement and
 that management has proposed no mid-term changes which exceed the scope
 of the Agreement.  As stated in section II of this decision, the record
 does not substantiate the Agency's assertions.  To the extent that there
 are factual issues in dispute between the parties concerning the duty to
 bargain in the specific circumstances of this case, such issues should
 be resolved in other appropriate proceedings.  Although the Agency
 references its own regulation in its Statement of Position at page 6,
 that reference does not appear to include a claim that there is a
 compelling need for that regulation.  Rather, the Agency simply uses the
 reference to support its contention that the subject matter of this
 proposal has already been bargained and incorporated into the parties'
 Agreement.  Therefore, since the Agency has made no claim that Proposal
 7 is inconsistent with law -- including the management rights provisions
 of the Statute -- or applicable rule or regulation, and no such
 inconsistency is otherwise apparent, the proposal is negotiable.
 Because there is no basis for finding that the proposal interferes with
 management's rights, we do not reach the question of whether it would
 constitute an "appropriate arrangement" under section 7106(b)(3).
 
                              C.  Conclusion
 
    For the reasons stated in the foregoing analysis, Proposal 7 is
 within the duty to bargain.
 
                                XI.  Order
 
    The Union's petition for review as it relates to Proposals 1, 2, 3, 5
 and 6 is dismissed.  The Agency must upon request (or as otherwise
 agreed to by the parties) bargain concerning Proposal 7.  /2/
 
    Issued, Washington, D.C., February 27, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                     DECISION AND ORDER ON PROPOSAL 4
 
                                Proposal 4
 
          Section 10:  DOL shall not contract out any current or future
       ETA functions, where positions in those functions are to be
       abolished or downgraded, for one year after the effective date of
       the RRD.
 
                        A.  Position of the Agency
 
    The Agency contends that Proposal 4 is nonnegotiable because it
 directly conflicts with management's right under section 7106(a)(2)(B)
 of the Statute to make determinations with respect to contracting out.
 
                       B.  Analysis and Conclusions
 
    Proposal 4 reflects the Union's attempt to negotiate for a delay in
 the Agency's implementation of certain contracting out actions.  The
 Union seeks to delay the actual contracting out of functions affected by
 a RIF, reorganization, or downgrading.  The Agency has not presented
 anything to indicate the nature of the proposal's effect on the Agency's
 operations.
 
    This proposal does not impose any substantive criteria on
 management's exercise of its rights to contract out, nor does it prevent
 the Agency from contracting out.  The Agency retains full discretion to
 take any actions it deems necessary in connection with a determination
 to contract out under section 7106(a)(2)(B), and to implement such a
 determination once the negotiated delay period has passed.  Consistent
 with established Authority precedent, such a proposal is negotiable
 under section 7106(b)(2) because it delays but does not prevent
 management from acting at all to exercise its rights.  See, for example,
 National Treasury Employees Union and Department of Energy, 24 FLRA No.
 52 (1986);  American Federation of Government Employees, AFL-CIO, Local
 2736 and Department of the Air Force, Headquarters 379th Combat Support
 Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984)
 (Proposal 3);  National Treasury Employees Union and U.S. Customs
 Service, Region VIII, San Francisco, California, 2 FLRA 255, 261-62
 (1979), and cases cited therein.  Consequently, we do not need to reach
 the question of whether this proposal constitutes an "appropriate
 arrangement" within the meaning of section 7106(b)(3) of the Statute.
 
                                 C.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain on Proposal 4.  /3/
 
    Issued, Washington, D.C., February 27, 1987.
 
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) 5 U.S.C. Section 5363(c) provides, in pertinent part, as follows:
 
          (c) The preceding provisions of this section shall cease to
       apply to an employee who --
 
          (1) has a break in service of one workday or more;
 
          (2) is entitled by operation of this subchapter or chapter 51,
       53, or 54 of this title to a rate of basic pay which is equal to
       or higher than, or declines a reasonable offer of a position the
       rate of basi