25:1067(90)NG - NTEU and Agriculture, Food and Nutrition Service, Midwest Region -- 1987 FLRAdec NG



[ v25 p1067 ]
25:1067(90)NG
The decision of the Authority follows:


 25 FLRA No. 90
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 U.S. DEPARTMENT OF AGRICULTURE 
 FOOD AND NUTRITION SERVICE 
 MIDWEST REGION
 Agency
 
                                            Case No. 0-NG-1283
 
                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 proposals.
 
                          II.  Proposals 1 and 2
 
                               (Proposal 1)
 
          Labor-Management Relations Committee Article -- Section 3
 
          The Employer has determined that LMRC meetings are in the
       public interest and has determined to pay travel and per diem
       costs for up to eight (8) field representatives outside Chicago to
       attend such meetings per year.  (Only the underscored portion is
       in dispute.)
 
                               (Proposal 2)
 
          Arbitration Article -- Section 6
 
          The arbitration hearing will be held in the Midwest Regional
       Office in Chicago, Illinois in a room furnished by the Employer
       during the regular day shift hours of the basic workweek.  The
       grievant(s), representative and witnesses employed by FNS with
       personal knowledge of the facts at issue and found to be necessary
       by the arbitrator, shall be allowed official time and travel and
       per diem expenses relative to the proceedings when otherwise in
       duty status.  If the foregoing witnesses are not available, the
       arbitrator shall have authority to delay the proceedings for a
       reasonable period of time, if in the arbitrator's opinion such a
       delay is warranted.  The Parties shall exchange witness lists
       three (3) workdays prior to the hearing.  Any questions regarding
       the necessity of a witness shall be raised at that time.  (Only
       the underscored portion is in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency contends that the payment of travel and per diem expenses
 is specifically provided for by law and that the disputed portions of
 Proposals 1 and 2 are therefore nonnegotiable because they do not
 concern a condition of employment of bargaining unit employees within
 the meaning of section 7103(a)(14)(C) of the Statute.  The Agency also
 asserts that the decision of the Supreme Court in Bureau of Alcohol,
 Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF) requires a
 conclusion that travel and per diem payments for employees engaged in
 union representational activities are not within the duty to bargain.
 The Agency contends, therefore, that the Authority's decisions in
 National Treasury Employees Union and Department of the Treasury, U.S.
 Customs Service, 21 FLRA No. 2 (1986), petition for review filed sub
 nom. Department of the Treasury, U.S. Customs Service v. FLRA, No.
 86-1198 (D.C. Cir., March 27, 1986) and American Federation of
 Government Employees, AFL-CIO, National Council of Federal Grain
 Inspection Locals and U.S. Department of Agriculture, Federal Grain
 Inspection Service, 21 FLRA No. 21 (1986), petition for review filed sub
 nom. U.S. Department of Agriculture, Federal Grain Inspection Service v.
 FLRA, No. 86-1295 (D.C. Cir., May 21, 1986), are incorrect.  The Agency
 maintains that for authorization of payment for travel and per diem
 expenses to be consistent with law and regulation it "can only be made
 as a unilateral decision of management, based on a case-by-case review
 of the circumstances of each proposed travel situation." Agency
 Statement of Position at 4.  In the Agency's view, the disputed language
 in the instant proposals does not leave the Agency this discretion and
 is therefore nonnegotiable.
 
    The Union contends that the proposals here are similar to proposals
 found negotiable by the Authority in Customs Service and related cases,
 and the Agency's allegations should be rejected for the reasons stated
 by the Authority in those cases.  The Union further states that its
 proposals are not inconsistent with law or regulation.  More
 particularly, it maintains that the Agency "is not limited in its
 discretion by negotiating on the issue," that is, the Agency "retains
 discretion on the exact amount of the payment and the type of travel and
 accommodations used by the employee in each case." Union's Response to
 Agency Statement of Position at 7.
 
                        B.  Analysis and Conclusion
 
          1.  Proposals 1 and 2 Concern a Condition of Employment
 
    In Customs Service, the Authority rejected the same argument as that
 made here, namely, that a proposal relating to travel and per diem for
 employee union representatives did not concern conditions of employment
 of bargaining unit employees.  For the reasons expressed in that
 decision, we find that Proposals 1 and 2 concern conditions of
 employment of unit employees.  This finding with respect to Proposal 2
 is applicable only to the extent that the proposal concerns bargaining
 unit employees.
 
          2.  Proposals 1 and 2 are not Inconsistent with Federal and
       Government-Wide Rules and Regulations
 
    In BATF the Supreme Court held only that payment of travel and per
 diem expenses for employees engaged in union representational activities
 was not required by the Statute;  it did not hold, as the Agency argues,
 that agencies and unions were precluded by law from negotiating over the
 payment of such expenses.  In Customs Service we rejected the same
 argument which the Agency makes here, namely, that payment of travel and
 per diem expenses for union representatives is inconsistent with law and
 regulation and therefore nonnegotiable.  We found that under the Travel
 Expense Act, 5 U.S.C. Sections 5701 et seq., and the Federal Travel
 Regulations (FTRs), 41 CFR, Part 101-7, as interpreted the Comptroller
 General, 46 Comp. Gen. 21 (1966), agencies have discretion to make
 determinations that travel in the context of union activity is
 sufficiently within the interest of the Government to constitute
 official business.  Following this determination, otherwise proper
 travel and per diem expenses may be paid from agency funds.  Contrary to
 the Agency's argument, nothing in these authorities requires that this
 necessary determination be made only by management and only on a
 case-by-case basis.  See also National Labor Relations Board Union and
 National Labor Relations Board, 22 FLRA No. 55, slip op. at 4 n.2
 (1986), petition for review filed sub nom. National Labor Relations
 Board v. FLRA, No. 86-1504 (D.C. Cir., Sept. 8, 1986).  The Agency does
 not argue that travel attendant to Labor-management relations activities
 and travel related to arbitration hearings could not meet this required
 standard.
 
    Moreover, the Authority has consistently held that in the absence of
 a showing to the contrary, proposals providing for the payment of travel
 and per diem expenses for union representatives would not prevent
 management from making individual case-by-case determinations as to the
 propriety under the FTRs of authorizing particular payments.  National
 Labor Relations Board.  Compare National Association of Agricultural
 Employees and U.S. Department of Agriculture, Animal and Plant Health
 Inspection Service, 22 FLRA No. 45 (1986) (Proposal 2) (Authority unable
 to conclude based on the record in the case that the provision would
 allow for compliance with law and regulation.) Based on the record in
 this case and noting that the Union intends the disputed proposals to
 comport with all travel regulations, we find nothing in Proposals 1 and
 2 which would prevent the Agency from complying with the requirements of
 law and regulations.
 
    Based on the foregoing analysis, we find that Proposals 1 and 2
 concern a condition of employment and are not inconsistent with law or
 Government-wide regulation.  Therefore, they are within the duty to
 bargain.
 
                          III.  Proposals 3 and 4
 
                               (Proposal 3)
 
              Performance Appraisal Article -- Section 3.E.
 
          Any disagreements concerning the elements and/or standards
       shall be documented as noted in B.  Employees may bring concerns
       regarding the performance elements and/or standards to the
       attention of the reviewing official.  The reviewing official may
       exercise authority to make appropriate changes after discussion
       with the rating official.  Official time for preparation and
       presentation shall be provided to the employee.  (Only the
       underscored portion is in dispute.)
 
                               (Proposal 4)
 
              Performance Appraisal Article -- Section 4.A.
 
          Performance elements and standards must be consistent with the
       duties and responsibilities contained in the employee's position
       description, and applied in a fair, consistent, and reasonable
       manner.  (Only the underscored portion is in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency contends that the disputed language in Proposal 3 is
 nonnegotiable because it conflicts with the Agency's right to direct and
 to assign work under section 7106(a)(2)(A) and (B) of the Statute.
 Citing American Federation of Government Employees, Local 32 and Office
 of Personnel Management, 16 FLRA 948 (1984) (Proposal 3), the Agency
 states that the language does not provide a general nonquantitative
 requirement by which the application of performance standards
 established by an agency could be evaluated in a grievance, but makes
 the elements and standards themselves subject to arbitral review.  It
 further claims that although the Union has indicated that it would use
 the reviewing official selected by management, "it did not make clear in
 the agreement language nor in their . . . statement of intent that the
 content of standards and elements (would not be subject to arbitral
 review)." Agency Statement of Position at 8.
 
    The Union disagrees with the Agency's position that Proposal 3 would
 render disputes on the content of performance elements and standards
 grievable.  It states that the proposal "does not subject the substance
 of elements and standards to arbitral review," but rather is intended to
 "(operate) solely as a mechanism for review within the Agency,"
 consistent with 5 C.F.R. Section 430.205 and the Department's own
 regulations.  /1/ Union's Response to Agency's Statement of Position at
 11.  The Union therefore contends that the proposal is negotiable under
 section 7106(b)(2) of the Statute.
 
    Concerning Proposal 4, the Agency states that the disputed language
 in Proposal 4 is nonnegotiable because it interferes with management's
 rights under section 7106(a)(2)(A) and (B) of the Statute to assign and
 direct employees, and to assign work.  It argues that the disputed
 language here is unlike Proposal 5 found negotiable by the Authority in
 American Federation of Government Employees, AFL-CIO, Local 32 and
 Office of Personnel Management, Washington, D.C., 3 FLRA 783 (1980),
 because the disputed language in this case refers to the content of
 performance elements and standards and not to the application of those
 standards.  The Agency further claims that the disputed language would
 interfere with its ability to temporarily assign (detail) employees to a
 special project.  In this regard, it states that a position description
 is not required for a detail which does not exceed 120 days;  however,
 elements and standards must be developed since the employee's
 performance during the detail must be rated.  Noting such requirements,
 it argues that the proposal would preclude the Agency from establishing
 elements and standards for an employee who is detailed for less than 120
 days or, if the Agency did establish elements and standards which were
 not based on a position description, the contents of such standards
 would be subject to arbitral review.
 
    The Union asserts that the proposal does not interfere with
 management's rights but is "merely a contractual affirmation of 5 U.S.C.
 4301(b)(1)." Union's Response to Agency's Statement of Position at 15.
 In its view this proposal is similar to Proposal 2 which the Authority
 found negotiable in American Federation of Government Employees,
 AFL-CIO, Local 2192 and Veterans Administration Regional Office, St.
 Louis, Missouri, 9 FLRA 716 (1982) as well as to Proposal 1 in American
 Federation of Government Employees, AFL-CIO, Local 2849 and Office of
 Personnel Management, New York Regional Office, 7 FLRA 571 (1982)
 because the proposal only covers work covered by the requirement for a
 job description.  Union's Response to Agency's Statement of Position at
 15.
 
                        B.  Analysis and Conclusion
 
                              1.  Proposal 3
 
    Proposal 3 provides a negotiable procedure for employees to bring
 disputes concerning their performance elements and standards to a
 reviewing official within the Agency.  See National Treasury Employees
 Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
 769, 780 (1980), affirmed sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir.
 1982).  The Union has specifically stated that this proposal is not
 intended to subject the substance of elements and standards to arbitral
 review as the Agency alleges.  Rather, the proposal is intended to
 operate as a mechanism for review within the Agency.  Thus, based on the
 record, we find nothing in the proposal that would prevent the Agency
 from establishing elements and standards pursuant to its statutory right
 to direct and assign work.  The disputed language in Proposal 3 only
 provides a procedure by which employees may bring disputes concerning
 their performance elements and standards to a reviewing official within
 the Agency -- a procedure which allows for employee participation with
 respect to their elements and standards.  See also National Federation
 of Federal Employees, Local 1430 and Department of the Navy, Northern
 Division, U.S. Naval Base, Philadelphia, Pennsylvania, 15 FLRA 45 (1984)
 (Proposal 1) (the Authority found negotiable a proposal that provided
 for a joint planning communication process comprised of discussions
 between an employee and his or her supervisor and/or a shop steward with
 respect to elements and standards).  We therefore find that the disputed
 language in Proposal 3 constitutes a negotiable procedure under section
 7106(b)(2) of the Statute and does not interfere with the Agency's right
 to direct and assign employees under section 7106(a)(2)(A) and (B) of
 the Statute.
 
                              2.  Proposal 4
 
    Proposal 4 is substantively identical to the proposal found
 negotiable by the Authority in American Federation of Government
 Employees, AFL-CIO, Local 2849 and Office of Personnel Management, New
 York Regional Office, 7 FLRA 571 (1982) (Proposal 1).  In that case, the
 proposal required performance standards and critical elements to be
 consistent with the duties and responsibilities contained in a properly
 classified position description.  The Authority determined that although
 the proposal required consistency between position descriptions on the
 one hand, and critical elements identified and performance standards
 established for a position on the other hand, it would not limit the
 agency's choice of critical elements or performance standards.  Rather,
 the agency could always achieve the required consistency merely by
 amending the position description.  Thus, under that proposal, the right
 of the agency to assign work and to direct employees through
 establishing such elements and standards remained unaffected, subject to
 the procedural requirement that the position description involved
 accurately reflected the work assigned.  Therefore, the Authority
 concluded that the proposal was within the duty to bargain under section
 7106(b)(2) of the Statute.  For the reasons set forth in AFGE, Local
 2849, we conclude that the disputed language in Proposal 4 does not
 interfere with management's right to direct employees and assign work
 under section 7106(a)(2)(A) and (B) of the Statute and therefore is
 within the duty to bargain.
 
    In so concluding, we reject the Agency's contention that the disputed
 language, by requiring elements and standards to be consistent with the
 duties of an employee's position description, would prevent the Agency
 from temporarily assigning (detailing) an employee to a special project
 for 120 days or less.  The disputed language is not intended to cover
 special details, but rather is intended to apply only to "work covered
 by the requirements for a job description." Union's Response to Agency's
 Statement of Position at 15.  Based on the Union's explanation of its
 proposal, which is consistent with a literal reading of the disputed
 language, we find that the proposal is limited in its application and
 thus does not interfere with the Agency's right to assign employees to
 special details.
 
                              IV.  Proposal 5
 
          If there are no established KSA's, or if the employer desires
       to change the KSA's then, prior to filling any vacancy covered by
       this article, the employer will submit the proposed changes to the
       union.  The union will have ten (10) days from the date of receipt
       to request negotiations.
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 5 is nonnegotiable because it
 directly interferes with management's rights to determine the personnel
 by which agency operations shall be conducted and to make selections
 under section 7106(a)(2)(B) and (C) of the Statute.  The Union disputes
 the Agency's contention and argues that the proposal constitutes a
 negotiable procedure under section 7106(b)(2) of the Statute.
 
                        B.  Analysis and Conclusion
 
    KSA's are knowledges, skills, or abilities (KSA's) essential for
 satisfactory performance on the job and represent an addition to the
 basic standard for a position.  Federal Personnel Manual (FPM), Chapter
 335, section 1-2h.  Proposal 5 would prohibit the Agency from filling a
 vacant position in situations where the Agency either established new
 KSA's or revised existing ones until the Union was notified and allowed
 an opportunity to request negotiations over such changes.
 
    In National Federation of Federal Employees, Local 1497 and
 Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force
 Base, Colorado, 11 FLRA 565 at 568 (1983), the Authority stated:
 
          (T)he right to select for appointment to a position under
       section 7106(a)(2)(C) includes the discretion to determine, as an
       integral aspect of the process of selection, the selective
       factors, i.e., knowledges, skills, and abilities necessary to
       successful performance of the work of a position . . . .
 
          (U)nion participation in the decision-making process whereby
       (an agency) determines the knowledges, skills, and abilities
       necessary for successful performance of the work of a position
       would directly interfere with management's rights under section
       7106(a)(2)(C) of the Statute.
 
    Thus, contrary to the Union's position, Proposal 5 does not set forth
 a procedure.  Instead, the proposal subjects the Agency's determination
 of selective factors for a vacant position to negotiations.  By so doing
 Proposal 5 permits the Union to become involved in the decision-making
 process whereby management determines the knowledges, skills, and
 abilities necessary for successful performance of the work of such a
 position.  It therefore directly interferes with the Agency's right to
 make selections for appointments to vacant positions under section
 7106(a)(2)(C) of the Statute and is outside the duty to bargain.  In
 view of this conclusion, we find it unnecessary to address the Agency's
 contention concerning section 7106(a)(2)(B) of the Statute.
 
                           V.  Proposals 6 and 7
 
          Grievance Procedure Article, Section 4(a)(1)(I) and (J)
 
          This procedure shall be the exclusive procedure for resolving
       all grievances, but does not cover:
 
                               (Proposal 6)
 
          (I) The termination of a probationary employee, unless the
       product of unlawful discrimination.  (Only the underscored portion
       is in dispute.)
 
                               (Proposal 7)
 
          (J) Selections and selection procedures for nonbargaining unit
       positions, unless the product of unlawful discrimination.
 
                       A.  Positions of the Parties
 
    The Agency contends that the disputed language in Proposal 6 is
 nonnegotiable because it is contrary to governing law and regulation.
 The Agency, citing Department of Justice, Immigration and Naturalization
 Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), and 5 C.F.R. part 315,
 subpart H, among other sources, argues that the termination of a
 probationary employee is precluded by law and regulation from coverage
 by a negotiated grievance procedure.  According to the Union, Proposal 6
 would allow it to "grieve (the) discriminatory" termination of
 probationary employees.  It states that its proposal is negotiable
 pursuant to sections 7103(a)(9) and 7121 of the Statute;  that the
 court's decision in DOJ, INS is not relevant here;  and that the cited
 regulations do not address the issue raised by this proposal.  The Union
 also claims that "illegal discriminatory firings of probationary
 employees" are not a protected right of an agency;  and that section
 7103(a)(9)(C) of the Statute grants the Union the right to grieve the
 misapplication of any law affecting conditions of employment, including
 the discriminatory firing of a probationary employee.  Union Response to
 Agency Statement of Position at 19 and 20.
 
    Concerning Proposal 7, the Agency, citing American Federation of
 Government Employees, AFL-CIO, Local 2 and Department of the Army,
 Military District of Washington, 4 FLRA 450 (1980) contends that the
 proposal is outside the duty to bargain because it does not involve
 conditions of employment of unit employees but rather addresses
 selections and selection procedures for nonbargaining unit positions.
 The Union disagrees.  It contends that Proposal 7, like Proposal 6, is
 intended to address illegal discrimination in the workplace which
 "explicitly affects bargaining unit employees." Union's Response to
 Agency's Statement of Position at 21.  In explaining its proposal, the
 Union states that it is not seeking the right to grieve all selections
 for any reason, only the right to grieve discriminatory selections or
 selection procedures which have a direct impact on unit employees.
 Union's Response to Agency's Statement of Position at 21.  The Union
 claims that its position that the proposal is negotiable is supported by
 the Authority's decision in National Treasury Employees Union and
 Internal Revenue Service, 3 FLRA 693 (1980).
 
                        B.  Analysis and Conclusion
 
                              1.  Proposal 6
 
 Proposal 6 subjects the termination of probationary employees, where
 discrimination is alleged, to review under the parties' negotiated
 grievance procedure.  In DOJ, INS the court held that coverage under a
 negotiated grievance procedure of a grievance concerning the separation
 of a probationary employee is precluded by the statutory and sources,
 argues that the termination of a probationary employee is precluded by
 law and regulation from coverage by a negotiated grievance procedure.
 According to the Union, Proposal 6 would allow it to "grieve (the)
 discriminatory" termination of probationary employees.  It states that
 its proposal is negotiable pursuant to sections 7103(a)(9) and 7121 of
 the Statute;  that the court's decision in DOJ, INS is not relevant
 here;  and that the cited regulations do not address the issue raised by
 this proposal.  The Union also claims that "illegal discriminatory
 firings of probationary employees" are not a protected right of an
 agency;  and that section 7103(a)(9)(C) of the Statute grants the Union
 the right to grieve the misapplication of any law affecting conditions
 of employment, including the discriminatory firing of a probationary
 employee.  Union Response to Agency Statement of Position at 19 and 20.
 
    Concerning Proposal 7, the Agency, citing American Federation of
 Government Employees, AFL-CIO, Local 2 and Department of the Army,
 Military District of Washington, 4 FLRA 450 (1980), contends that the
 proposal is outside the duty to bargain because it does not involve
 conditions of employment of unit employees but rather addresses
 selections and selection procedures for nonbargaining unit positions.
 The Union disagrees.  It contends that Proposal 7, like Proposal 6, is
 intended to address illegal discrimination in the workplace which
 "explicitly affects bargaining unit employees." Union's Response to
 Agency's Statement of Position at 21.  In explaining its proposal, the
 Union states that it is not seeking the right to grieve all selections
 for any reason, only the right to grieve discriminatory selections or
 selection procedures which have a direct impact on unit employees.
 Union's Response to Agency's Statement of Position at 21.  The Union
 claims that its position that the proposal is negotiable is supported by
 the Authority's decision in National Treasury Employees Union and
 Internal Revenue Service, 3 FLRA 693 (1980).
 
                        B.  Analysis and Conclusion
 
                              1.  Proposal 6
 
    Proposal 6 subjects the termination of probationary employees, where
 discrimination is alleged, to review under the parties' negotiated
 grievance procedure.  In DOJ, INS the court held that coverage under a
 negotiated grievance procedure of a grievance concerning the separation
 of a probationary employee is precluded by the statutory and regulatory
 scheme for a probationary period of employment set forth in 5 U.S.C.
 Section 3321 and 5 CFR part 315, subpart H.  The court also concluded
 that whether the collective bargaining proposals of the union provided
 probationary employees procedural protections different from those
 provided tenured employees was not the issue.  The court stated that:
 
          To the contrary, the crucial issue is whether Congress intended
       to allow any shackles whatever to be placed on agency decisions
       concerning termination of probationary employees for unacceptable
       work performance or conduct.  We think that Congress affirmatively
       preserved the agencies' right to discharge summarily a
       probationary employee for unacceptable work performance.
       Furthermore, we think Congress instructed OPM, not FLRA, to
       implement the probationary program and to provide whatever
       procedural protections were necessary for probationary employees.
       709 F.2d at 729 (Emphasis in original;  footnotes omitted).
 
    The Authority has uniformly held on the basis of the rationale and
 conclusion of the court in DOJ, INS that coverage by a negotiated
 procedure of a grievance concerning the separation of a probationary
 employee is precluded by governing law and regulation.  See, for
 example, Department of Health and Human Services, Social Security
 Administration and American Federation of Government Employees, Local
 1923, AFL-CIO, 15 FLRA 714 (1984).  In that case, the Authority
 specifically stated that "in enacting the Statute, Congress did not
 intend that procedural protections for probationary employees be
 established through collective bargaining under the Statute." (Emphasis
 added.) Relying on the court's language set forth above, the Authority
 further stated that "OPM is 'to provide whatever procedural protections
 are necessary for probationary employees.'"
 
    In view of the above, we find that Proposal 6 is nonnegotiable
 because it is contrary to law and regulation.  In reaching this
 conclusion we reject the Union's contention that OPM regulations do not
 address the issue in this case.  OPM regulations set forth specific
 procedural protection for probationary employees alleging certain kinds
 of discrimination.  See 5 C.F.R. Section 315.806 (1986);  see also DOJ,
 INS, n.10.  We therefore conclude that Proposal 6 is outside the duty to
 bargain.
 
                              2.  Proposal 7
 
    The Agency contends that the proposal is outside the duty to bargain
 because it does not involve conditions of employment of unit employees
 but rather addresses "selections and selection procedures for
 nonbargaining unit positions." We agree.  Thus, contrary to the Union's
 contention that its proposal is only intended to address illegal
 discrimination in the workplace which explicitly affects bargaining unit
 employees, we find based on the express language of the proposal that it
 would subject the selections and selection procedures for nonbargaining
 unit positions to the parties' negotiated grievance procedure.  The
 Authority has previously held that proposals which pertain to the
 filling of nonbargaining unit positions do not relate to conditions of
 employment of bargaining unit employees, and hence are not within the
 required scope of bargaining;  rather they are negotiable solely at the
 election of the agency.  American Federation of Government Employees,
 AFL-CIO, Local 2 and Department of the Army, Military District of
 Washington, 4 FLRA 450 (1980).  Since the Agency has elected not to
 bargain on the proposal as it relates to the filling of nonbargaining
 unit positions, the Agency's allegation that the proposal is not within
 the duty to bargain is sustained.
 
    Further, we find that the Union's reliance on National Treasury
 Employees Union and Internal Revenue Service, 3 FLRA 693 (1980) is
 misplaced.  Considering the plain language of Proposals II and III and
 the Union's stated intent in that case, we find nothing in that decision
 to indicate that the proposals were intended to apply to employees
 outside the bargaining unit or that the Authority found that matters
 pertaining to employees outside the bargaining unit were negotiable.
 Rather, the Authority found that the Union could negotiate over
 proposals which essentially restated two provisions of the Civil Service
 Reform Act of 1978, pertaining to merit system principles and prohibited
 personnel practices to the extent that they applied to unit employees.
 
                                 VI. Order
 
    The petition for review as it relates to Proposals 5, 6, and 7 is
 dismissed.  The Agency must upon request or as otherwise agreed to by
 the parties bargain concerning Proposals 1, 2, 3, and 4.  /2/
 
    Issued, Washington, D.C., February 27, 1987.