26:0515(62)NG - NAGE, SEIU and NG Bureau, Adjutant General -- 1987 FLRAdec NG



[ v26 p515 ]
26:0515(62)NG
The decision of the Authority follows:


 26 FLRA No. 62
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, SEIU, AFL-CIO
 Union
 
 and
 
 NATIONAL GUARD BUREAU 
 ADJUTANT GENERAL
 Agency
 
                                            Case No. 0-NG-1226
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed by the Union under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 concerning the negotiability of ten proposals.
 
                              II.  Proposal 1
 
                                 ARTICLE 4
 
    The FLRA Members disagree over the negotiability of this proposal.
 The Decision and Order on Proposal 1 and Chairman Calhoun's dissent
 appear below.
 
                             III.  Proposal 2
 
                                 ARTICLE 5
 
          Section 7.  The employer agrees to allow necessary time
       immediately preceding the lunch period and at the end of each
       workday to permit those employees engaged in work involving dirty,
       toxic or hazardous substances time for personal clean up.  Such
       time will not normally exceed 10 minutes in the same day.
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 2 would prohibit it from assigning
 other duties to employees during the time set aside for personal clean
 up in violation of the Agency's right under section 7106(a)(2)(B) to
 assign work.  The Union disputes the Agency's contention and argues that
 its proposal primarily concerns the health and safety of employees as
 required by Occupational Safety and Health Administration (OSHA)
 regulations and 29 U.S.C. Section 651.
 
                       B.  Analysis and Conclusions
 
    We find that Proposal 2 is to the same effect as Proposal 7 which was
 held to be outside the duty to bargain in National Treasury Employees
 Union and NTEU Chapter 80 and Department of the Treasury, Internal
 Revenue Service, Central Region, 8 FLRA 197 (1982).  The proposal in
 that case would have required that the first and last 15 minutes of each
 workday be devoted to packing and unpacking files.  The Authority found
 that the proposal violated the agency's right to assign work in that the
 agency would have been prohibited from assigning other duties to
 employees during those time periods.  Proposal 2 in dispute here would
 similarly violate the Agency's right to assign work by requiring it to
 refrain from assigning other duties to employees during the time periods
 set aside for personal cleanup.  See also National Treasury Employees
 Union, Chapter 153 and Department of the Treasury, U.S. Customs Service,
 21 FLRA No. 128 (1986) (Proposal 7) (a proposal giving employees time
 during their hours of duty to clean up and change uniforms interfered
 with management's right to assign work).
 
    As to the Union's contention that finding the proposal nonnegotiable
 would place the Agency in conflict with OSHA requirements, we find that
 the Union's position is not supported in the record.  The Union cites to
 the general Congressional policy in 29 U.S.C. Section 651 to provide
 safe and healthful working conditions.  It does not however demonstrate
 how the Agency acts contrary to that policy by failing to set aside duty
 time for employees to clean up and change uniforms.  Likewise, the Union
 has not identified any OSHA regulations which include a requirement that
 employees engaged in work involving dirty, toxic or hazardous substances
 must be allowed time during their tour of duty for personal clean up.
 See for example 29 C.F.R. Section 1910.141 (OSHA standards relating to
 environmental controls and sanitation standards for the handling of
 chemicals);  29 C.F.R. Section 1926.58 (OSHA standards relating to
 environmental controls and sanitation standards for construction
 projects.  Accordingly, for the reasons set forth more fully in
 Department of the Treasury, we find that Proposal 2 violates the
 Agency's right to assign work and is outside the duty to bargain.
 
    We also find, for the reasons stated in American Federation of
 Government Employees, AFL-CIO, Local 3231 and Department of Health and
 Human Services, Social Security Administration, 25 FLRA No. 45 (1987),
 that Proposal 2 conflicts with federal law and is nonnegotiable because
 it would require counting time set aside for non-work activity i.e.,
 personal clean up, in the 40 hours of "work" required by 5 U.S.C.
 Section 6101.
 
                              IV.  Proposal 3
 
                                 ARTICLE 5
 
          Section 18.  Grade inversion policies will be equally enforced.
        Bargaining unit members will not be discriminated against.
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 3 is concerned with the military
 aspect of technician employment, and consequently, does not concern a
 condition of employment within the meaning of the Statute.  The Agency
 further argues that the proposal is also concerned with supervisory
 positions and that it has no bargaining obligation for that reason also.
 
    The Union contends that the proposal does not conflict with internal
 agency regulations.  It argues that a proposal is not outside the duty
 to bargain simply because it has an impact upon the military aspect of
 civilian employment if the proposal is consistent with relevant
 statutory or regulatory provisions.
 
                       B.  Analysis and Conclusions
 
    Proposal 3 is to the same effect as the proposal which the Authority
 held to be outside the duty to bargain in National Federation of Federal
 Employees, Local 1655 and Adjutant General of Illinois, 20 FLRA No. 103
 (1985).  The third section of the proposal in that case concerned
 military grade inversion and required that grade inversion be
 prohibited.  The Authority found that the proposal concerned the
 military aspects of civilian technician employment and, therefore, did
 not concern a condition of employment within the meaning of the Statute.
  The Authority also stated that its conclusion was not altered by the
 existence of either agency regulations concerning the subject matter of
 the proposal or a law dealing with military aspects of civilian
 technician employment which the union's proposal paralleled.
 Accordingly, for the reasons set forth more fully in Adjutant General of
 Illinois, we conclude that Proposal 3, which also concerns the military
 aspects of civilian technician employment, does not concern a condition
 of employment and is outside the duty to bargain.  In view of this
 decision, we need not determine whether or not the proposal concerns a
 condition of employment because it deals with supervisory positions.
 
                              V.  Proposal 4
 
                                 ARTICLE 9
 
          Section 1.  Performance ratings will not include a numerical
       rating.  The ratings will consist only of categories:
 
          a.  Unacceptable
 
          b.  Marginally acceptable
 
          c.  Fully acceptable
 
          d.  Outstanding
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 4 would prescribe the number of
 performance rating levels in violation of its right under section
 7106(a)(2)(A) to direct the work force.  The Union argues in its
 Petition for Review that there is no compelling need for the Agency's
 performance regulation to deviate from Federal Personnel Manual, Chapter
 430.  The Union does not expound upon this contention in its Response to
 the Agency's Statement of Position.
 
                        B.  Analysis and Conclusion
 
    Proposal 4 would establish four levels for rating employees'
 performance.  This proposal is to the same effect as the proposal that
 the Authority held to be outside the duty to bargain in American
 Federation of State, County and Municipal Employees, AFL-CIO, Council 26
 and U.S. Department of Justice, 13 FLRA 578, 580-81 (1984).  In that
 case, the Authority found that a proposal which would have established
 the number of rating levels for appraising an employee's performance
 violated the agency's rights under section 7106(a)(2)(A) and (B) to
 direct employees and assign work through the establishment of
 performance standards.  See also National Treasury Employees Union and
 Department of the Treasury, 21 FLRA No. 123 (1986) (Provision 6).
 Accordingly, for the reasons set forth more fully in Department of
 Justice, we conclude that Proposal 4 violates management's rights to
 direct employees and assign work and is outside the duty to bargain.
 
                              VI.  Proposal 5
 
                                 ARTICLE 9
 
          Section 12.  The labor organization shall be allowed one member
       on the State Review and Appeal Board.  The member shall be
       selected by the Union.
 
                       A.  Positions of the Parties
 
    The Agency states that the purpose of the State Review and Appeals
 Board is to provide impartial review of performance appraisal appeals
 not only from unit employees but from supervisors and nonunit
 technicians as well.  It argues that allowing the Union to appoint a
 member to this board would involve the Union in deliberations concerning
 performance appraisals of nonunit employees.  The Agency further argues
 that, in the absence of a specific provision in the parties' agreement
 excluding performance appraisal appeals, the negotiated grievance
 procedure would be the exclusive method of performance appraisal appeals
 for unit employees and the Union therefore would be involved in deciding
 appeals solely from nonunit employees.  Even if the matter were excluded
 from the grievance procedure, the Agency contends that the proposal
 would violate management's rights by including the Union in the Agency's
 deliberations over performance ratings.  Additionally, the Agency argues
 that selecting an employee to serve on the Appeals Board constitutes an
 assingment of duties and, therefore, allowing the Union to make the
 selection violates the Agency's right under section 7106(a)(2)(B) to
 assign work.
 
    The Union states that the Appeals Board neither establishes
 performance standards nor resolves differences between supervisors and
 employees concerning the standards to be applied.  Rather, the Union
 argues that the Board merely hears performance appraisal appeals and
 makes recommendations to the Adjutant General as to whether the
 appraisal should be sustained or changed.  It contends that its
 participation, therefore, does not interfere with the Agency's right to
 make a decision involving performance appraisals.  Additionally, the
 Union argues that the Appeals Board rather than the grievance procedure
 is the procedure by which unit employees are to appeal performance
 appraisals and that the Union representative need not participate in
 appeals from nonunit employees.  Finally, the Union argues that the
 member it selects is serving as a Union representative pursuant to
 section 7131 of the Statute and, consequently, the proposal does not
 involve the assignment of official duties.
 
                        B.  Analysis and Conclusion
 
    Proposal 5 would allow the Union to appoint one member to serve as
 its representative on the State Review and Appeals Board.  The Board
 reviews appeals by employees concerning their performance appraisals and
 recommends to the Adjutant General whether the appraisal should be
 upheld.  We find that the Board's function constitutes an integral part
 of the process by which the Agency exercises its rights under section
 7106(a)(2)(A) and (B) to direct employees and assign work by appraising
 the performance of its employees.  By placing a Union representative on
 the Appeals Board, the proposal would allow the Union to interject
 itself into the Agency's decision-making process and prevent the
 management officials on the Board from engaging in free and open
 deliberations among themselves.  The Authortiy has held that such
 deliberations are an essential part of management's right to make
 decisions under section 7106 of the Statute.  See National Federation of
 Federal Employees, Local 943 and Department of the Air Force, Keesler
 Air Force Base, Mississippi, 16 FLRA 313, 315-16 (1984) (Section D), in
 which the Authority held that a proposal requiring performance
 appraisals to be reviewed by a Performance Standards Panel that included
 a representative of the union interfered with the agency's rights to
 direct employees and assign work.  See also American Federation of
 Government Employees, Local 2094, AFL-CIO and Veterans Administration
 Medical Center, New York, New York, 22 FLRA No. 81 (1986) (Proposal 2),
 petition for review filed sub nom. American Federation of Government
 Employees, AFL-CIO, Local 2094 v. FLRA, Case No. 86-1521 (D.C. Cir.
 Sept. 22, 1986), in which the Authority held that allowing union
 representation on the agency's Position Management Committee would
 violate management's rights.  Accordingly, we conclude that Proposal 5
 would interfere with the Agency's rights to direct employees and assign
 work and is outside the duty to bargain.
 
    In view of this determination, it is unnecessary for us to decide
 whether Proposal 5 is also outside the duty to bargain because it would
 determine conditions of employment of nonunit employees or because
 membership on the Board would constitute an assignment of official
 duties.
 
                          VII.  Proposals 6 and 7
 
                               (Proposal 6)
 
                                ARTICLE 22
 
          Section 1.  Union officials will not be required to wear the
       military uniform under the following conditions:
 
          a.  Negotiations of any kind with management officials.
 
          b.  Labor/management meetings with management officials.
 
          c.  Labor/management seminars at Massachusetts National Guard
       installations or armories.
 
          d.  Performing representational duties for bargaining unit
       members.
 
          e.  When representing the union on committees, at hearings or
       at third party proceedings.
 
                               (Proposal 7)
 
          Section 2.  Union officials will be allowed reasonable time to
       change clothes prior to and subsequent to any of the situations
       contained in Section 1 of the Article.
 
                       A.  Positions of the Parties
 
    The Agency contends that the wearing of uniforms by National Guard
 technicians concerns the methods and means of performing work and that
 Proposal 6 is, therefore, negotiable only at the election of the Agency
 under section 7106(b)(1) of the Statute, citing the Authority's decision
 in Division of Military and Naval Affairs, State of New York, Albany,
 New York and New York Council, Association of Civilian Technicians, 15
 FLRA 288 (1984), aff'd New York Council, Association of Civilian
 Technicians v. FLRA, 757 F.2d 502 (2d Cir.), cert. denied, 106 S.Ct. 137
 (1985).  The Agency further argues that Proposal 6 is inconsistent with
 Technician Personnel Regulation 300 which requires technicians to wear
 the military uniform when performing technician duties or attending
 certain courses of instruction.  The Agency notes that its regulation
 also provided that the wearing of the military uniform is
 "inappropriate" for labor organization representative engaged in labor
 agreement negotiations, but contends that Proposal 6 includes matters
 beyond labor management negotiations.  It contends that the regulation
 is essential to the accomplishment of its mission and to the
 requirements of an effective and efficient government and that its
 regulation is, therefore, supported by a compelling need under section
 2424.11(a) of the Authority's Rules.
 
    The Union contends that the Authority's decision in Division of
 Military and Naval Affairs applies only to wearing the uniform while
 performing technician duties.  It argues that Proposal 6 concerns
 employees performing their duties as Union representatives rather than
 as technicians.  The Union also contends that the proposal does not
 conflict with the Agency's regulation in that the proposal concerns the
 performance of Union representational functions consistent with the
 exception in the regulation.  Additionally, the Union argues that the
 Agency has not demonstrated that its regulation is supported by a
 compelling need.
 
    The Agency contends that Proposal 7 is outside the duty to bargain
 for the same reasons as Proposal 6.  It further argues that Proposal 7
 is also outside the duty to bargain because it would prevent the Agency
 from assigning other work at the times set aside for changing clothes in
 violation of management's right under section 7106(a)(2)(B) to assign
 work.  The Union contends that Proposal 7 is concerned with its rights
 to negotiate official time for the conduct of Union business and does
 not violate the Agency's right to assign work.
 
                               B.  Analysis
 
         1.  Proposal 6 Does Not Concern the Methods and Means of
 
                Performing Work
 
    We find that Proposal 6 concerns the wearing of military uniforms by
 National Guard technicians when engaged in labor-management activities
 rather than technician duties.  This proposal is to the same effect as
 the proposal that we held to be within the duty to bargain in National
 Association of Government Employees, Local R3-84, SEIU, AFL-CIO and
 District of Columbia Air National Guard, 23 FLRA No. 73 (1986).  In
 District of Columbia Air National Guard, we found that a proposal which
 provided that technicians would not be required to wear uniforms while
 engaged in labor-management activities did not violate the agency's
 right to determine the methods and means of performing work.  We
 concluded that the proposal differed from the situation in the Division
 of Military and Naval Affairs case cited by the agency in that (1) the
 labor-management activities with which the proposal was concerned did
 not involve the performance of the agency's work within the meaning of
 section 7106(b)(1), and (2) the agency's purpose in imposing the uniform
 requirement on technicians when performing their technician duties would
 not be furthered by also imposing the requirement on technicians
 involved in labor-management activities.  We found that the exceptions
 to the agency's uniform requirement in District of Columbia Air National
 Guard concerned labor-management activities -- the joint efforts of
 employees, the Union, and the agency's management officials in setting
 and administering technicians' conditions of employment.  See American
 Federation of Government Employees, AFL-CIO, Local 2761 and U.S.
 Department of the Army, U.S. Army Adjutant General Publication Center,
 St. Louis, Missouri, 14 FLRA 438, 440-41 (1984);  National Federation of
 Federal Employees, Local 541 and Veterans Administration Hospital, Long
 Beach, California, 12 FLRA 270, 274 (1983).
 
    Similarly, Proposal 6 in dispute here is concerned with Union
 officials acting in their representational capacity instead of
 performing technician duties.  The purpose in requiring technicians to
 wear military uniforms would not be furthered in this situation.
 Consequently, for the reasons set forth more fully in District of
 Columbia Air National Guard, we conclude that Proposal 6 does not
 concern the methods and means of performing the Agency's work.
 
           2.  The Proposal Does Not Conflict With the Agency's
 
                Regulation
 
    The Agency contends that the proposal conflicts with Technician
 Personnel Regulation 300 which requires technicians in the excepted
 service to wear the military uniform "when performing technician
 duties." However, as we discussed above, Proposal 6 is concerned with
 technicians engaged in labor-management activities rather than
 performing technician duties.  The Agency's regulation itself recognizes
 that the uniform requirement is "inappropriate" for labor organization
 representatives when they are engaged in "labor agreement negotiations."
 See Technician Personnel Regulation, Section 302.7.  Accordingly, we
 conclude that Proposal 6 is not inconsistent with the Agency's
 regulation.  In view of this determination, it is unnecessary for us to
 decide whether the Agency's regulation is supported by a compelling
 need.
 
         3.  Proposal 7 Concerns Official Time to be Negotiated By
 
                the Parties
 
    Proposal 7 provides that union officials will be given reasonable
 time to change clothes both before and after performing the
 representational duties set forth in Proposal 6.  In District of
 Columbia Air National Guard, we held that a proposal which provided
 union officials reasonable time to change from and into their uniforms
 before and after engaging in labor-management activities was within the
 duty to bargain.  We found that the proposal was concerned with the use
 by union officials of official time to prepare for labor-management
 activity and was, therefore, negotiable.  See id., slip op. at 5.
 Because Proposal 7 in dispute here is also concerned with official time
 rather than duty time, the proposal does not violate the Agency's right
 to assign work.  Additionally, for the reasons discussed with respect to
 Proposal 6, we find that Proposal 7 does not concern the methods and
 means of performing work and is not inconsistent with Technician
 Personnel Regulation 300.
 
                              C.  Conclusion
 
    For the reasons set forth above, we conclude that Proposals 6 and 7
 are within the duty to bargain.
 
                             VIII.  Proposal 8
 
                                ARTICLE 22
 
          Section 3.  Technicians will be authorized ten minutes at the
       start and end of their work tour to change clothes.
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 8 violates its right under section
 7106(a)(2)(B) to assign work in that the proposal would prohibit it from
 assigning other duties to military technicians during the 20 minutes
 each day set aside for changing clothes.  The Union makes no argument
 with respect to the proposal in its response.
 
                        B.  Analysis and Conclusion
 
    Unlike Proposal 7, Proposal 8 is concerned with setting aside time
 for changing clothes, time that would otherwise be used for official
 technician duties.  This proposal is to the same effect as the proposal
 the Authority held to be outside the duty to bargain in National
 Treasury Employees Union and NTEU Chapter 80 and Department of the
 Treasury, Internal Revenue Service, Central Region, 8 FLRA 197 (1982)
 (Proposal 7), discussed above with respect to Proposal 2.  We find that
 Proposal 8 would prohibit the Agency from assigning other duties to
 technicians during the 20 minutes set aside for changing clothes.
 Consequently, for the reasons set forth more fully in Department of the
 Treasury, we conclude that Proposal 8 violates the Agency's right under
 section 7106(a)(2)(B) to assign work and is outside the duty to bargain.
  See also National Treasury Employees Union, Chapter 153 and Department
 of the Treasury, U.S. Customs Service, 21 FLRA No. 128 (1986) (Proposal
 7 requiring agency to give employees time during hours of duty to clean
 up and change uniforms nonnegotiable).
 
                              IX.  Proposal 9
 
                                ARTICLE 22
 
          Section 4.  Technicians will be furnished an allowance for
       cleaning and maintenance equal the uniform allowance received by
       AGR personnel.
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 9 conflicts with 5 U.S.C. Section
 5901 which permits the payment of uniform allowances only where
 personnel are not furnished with an appropriate uniform.  It claims that
 the technicians are furnished with uniforms and that funds cannot be
 provided to pay for the cleaning and maintenance of the uniform as
 required by the proposal.  The Union makes no argument with respect to
 the proposal in its response.
 
                        B.  Analysis and Conclusion
 
    We find that the proposal is not within the duty to bargain because
 the matter of uniform allowances as proposed by the Union is
 specifically provided for in Federal statute.
 
    Subchapter I of 5 U.S.C. chapter 59, which includes section 5901
 cited by the Agency, expressly provides for annual appropriations by
 Congress to agencies which require employees to wear a prescribed
 uniform in the performance of official duties and which do not furnish
 that uniform.  The provisions of the subchapter further provide that
 these funds in specified amounts will be used to either furnish the
 employee the prescribed uniform or pay the employee an allowance for a
 uniform.  The subchapter was originally enacted as the Federal Employees
 Uniform Allowance Act of 1954, Pub. L. No. 83-763, 68 Stat. 1114 (1954).
  The legislative history of this provision indicates that the allowance
 was appropriated for both the purchase and "upkeep" of the prescribed
 uniform.  S. Rep. No. 1992, 83rd Cong., 1954 U.S. Code Cong. & Ad. News
 3816, 3826.  The provisions of the subchapter further provide that when
 the prescribed uniform is furnished, or a uniform allowance is paid by
 the agency under another statute or regulation in existence on Spetember
 1, 1954, a uniform may not be furnished or an allowance paid under
 subchapter I.  The subchapter finally provides for regulations for the
 administration of the payment of allowances.
 
    From our examination of these provisions, we conclude that 5 U.S.C.
 chapter 59, subchapter I, deals comprehensively with the payment of a
 uniform allowance by an agency for the maintenance of the uniform which
 the agency requires employees to wear.  Because all bargaining unit
 employees are required to wear the military uniform, regardless of
 military rank or grade, we find that the proposal pertains to a matter
 which is specifically provided for by Federal statute.  Thus, under
 section 7103(a)(14)(C) of the Statute, the proposal concerns a matter
 which is excluded from those "conditions of employment" over which an
 agency can be required to bargain.  See American Federation of
 Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
 Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 1).  In
 view of our conclusion, it is not necessary to decide whether payment of
 the proposed uniform allowance is consistent with the subchapter.  See
 id., slip op. at 3.
 
                              X.  Proposal 10
 
                                ARTICLE 22
 
          Section 5.  Grooming standards will not apply during the
       technician work week.
 
                       A.  Positions of the Parties
 
    The Agency contends that the maintenance of grooming standards is
 integrally related to the requirement that National Guard technicians
 wear uniforms when performing technician duties.  It argues that
 grooming standards, like the requirement that technicians wear uniforms,
 constitute a methods and means of performing the Agency's work under
 section 7106(b)(1) of the Statute and are negotiable only at the
 election of the Agency.
 
    The Union contends that grooming standards interfere with the
 technicians' off-the-job privacy rights to a greater degree than the
 requirement that technicians wear uniforms.  It argues that requiring
 technicians to adhere to grooming standards when in civilian status
 bears no direct relationship to the employees' accomplishment of their
 duties and does not constitute a methods and means of performing work.
 The Union also contends that regulations concerning grooming standards
 cited by the Agency do not apply to technicians and that the Agency has
 not demonstrated a compelling need for its regulations.
 
                       B.  Analysis and Conclusions
 
    In Division of Military and Naval Affairs, State of New York, 23 FLRA
 No. 73 (1986), discussed above with respect to Proposal 6, the Authority
 held that the requirement that National Guard technicians wear the
 military uniform was integrally related to the duties the technicians
 perform in furtherance of the overall military mission of the National
 Guard.  We found that, because of the unique status of technicians as
 civilian employees who are also essential to achieving rapid
 mobilization of the part-time Guard into a military force, the
 technicians must possess a highly developed sense of esprit de corps and
 military discipline.  The uniform requirement was found to be
 indispensable as a constant reminder to technicians of this role.  We
 therefore concluded that the requirement constituted a method and means
 of performing work within the meaning of section 7106(b)(1) of the
 Statute.
 
    In this case, we find, in agreement with the Agency, that grooming
 standards are so inextricably related to the wearing of the military
 uniform that the standards established by the Agency must be considered
 an inextricable part of the uniform wearing requirement.  Agency
 standards determining the proper wear of the military uniform are
 integrally related to the Agency's purpose in imposing the uniform
 requirement -- that is, the maintenance of a highly developed sense of
 esprit de corps and military discipline among technicians -- and
 therefore concern the method and means of performing the Agency's work.
 We conclude that the Union's proposal concerning grooming standards is
 negotiable only at the election of the Agency under section 7106(b)(1).
 Since the Agency has elected not to bargain, Proposal 10 is outside the
 duty to bargain for the reasons set forth more fully in Division of
 Military and Naval Affairs, State of New York.  Compare Proposal 3 in
 American Federation of Government Employees, AFL-CIO, National
 Immigration and Naturalization Service Council and U.S. Department of
 Naturalization Service Council and U.S. Department of Justice,
 Immigration and Naturalization Service, 8 FLRA 347, 351-53 (1982), rev'd
 on other grounds sub nom. United States Department of Justice,
 Immigration and Naturalization Service v. FLRA, 709 F.2d 714 (D.C. Cir.
 1983), where the Authority found that although a union proposal
 providing for grooming standards which differed from those of the agency
 involved the means of performing the agency's work, the proposal
 constituted an appropriate arrangement in that it provided an
 alternative which still furthered the agency's objectives.
 
                                XI.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain concerning Proposals 6 and 7.  /1/
 
    The Union's petition for review as to Proposals 2-5 and 8-10 is
 dismissed.
 
    Issued, Washington, D.C., March 31, 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 1
 
                                Proposal 1
 
                                 ARTICLE 4
 
          Section 18.  a.  The union president will be assigned to the
       day shift.
 
          b.  Union officers and stewards work hours will be adjusted to
       permit them to accomplish their representational functions.
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 1 would violate its right under
 section 7106(a)(2)(A) to assign employees by (1) requiring it to assign
 the union president to the day shift regardless of mission or job
 requirements;  and (2) requiring it to adjust the work hours of union
 officials so that they coincide with the hours of the bulk of the work
 force.
 
    The Union contends that Proposal 1 constitutes a negotiable procedure
 which does not violate the Agency's rights since it concerns when
 employees will perform those duties previously assigned to their
 positions.  The Union states that the proposal is consistent with
 section 7131(d) of the Statute in that it allows officers and stewards
 flexibility in processing grievances.
 
                        B.  Analysis and Conclusion
 
    As the Authority has previously indicated, parties may negotiate
 procedures and practices which do not negate an agency's rights but
 which would enable a union to implement its statutory rights and duties
 with respect to the representation of employees.  See American
 Federation of Government Employees, AFL-CIO, Local 2272 and Department
 of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004,
 1014-15 (1982) (Proposal 7).  The Authority has also held that proposals
 concerning when employees would perform duties previously assigned to
 their positions do not violate management's right to assign employees.
 See Laborers' International Union of North America, AFL-CIO-CLC, Local
 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy,
 California, 14 FLRA 686, 687 (1984) (first disputed sentence of Proposal
 1).  The first part of Proposal 1 (section 18(a)) here would require
 that the Union president be assigned to only the day shift.  The second
 part of the Union's proposal (section 18(b)) would require the Agency to
 adjust the work hours of Union officers and stewards so that their
 "hours of work coincide with the bulk of the work force." Union Petition
 for Review at 1.
 
    There is no indication in the record that the Union officials covered
 by the proposal would perform duties other than those which the Agency
 had already assigned to their positions.  Rather, the proposal is merely
 concerned with the time when those officials will perform those duties
 previously assigned to them by the Agency.  The proposal is to the same
 effect as Provision 3 in 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).  Therefore, for the reasons stated in our decision on
 Provision 3 in Bureau of Engraving and Printing, Proposal 1 in this case
 is negotiable.  In contrast, see Department of Justice, U.S. Marshals
 Service, supra, in which the Authortiy held that Proposal 7, which would
 have prohibited the agency from assigning certain duties to employees
 who were also union officials, violated management's right to assign
 work under section 7106(a)(2)(B).
 
                                 C.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain concerning Proposal 1.  /2/
 
    Issued, Washington, D.C., March 31, 1987.
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
    Chairman Calhoun's Dissenting and Concurring Opinion on Proposal 1
 
    For the reasons in my separate opinion on Provision 3 in
 International Plate Printers, Die Stampers and Engravers Union of North
 Amer