27:0069(14)NG - AFGE Local 1858 and Army Missile Command, Army Test, Measurement And Diagnostic Equipment Support Group, Army Information Systems Command Redstone Arsenal Commissary -- 1987 FLRAdec NG



[ v27 p69 ]
27:0069(14)NG
The decision of the Authority follows:


 27 FLRA No. 14
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1858
 Union
 
 and
 
 U.S. ARMY MISSILE COMMAND, THE U.S. 
 ARMY TEST, MEASUREMENT, AND DIAGNOSTIC 
 EQUIPMENT SUPPORT GROUP, THE U.S. 
 ARMY INFORMATION SYSTEMS COMMAND-
 REDSTONE ARSENAL COMMISSARY
 Agency
 
                                            Case No. 0-NG-1148
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority under section 7105(a)(2)(E) of the
 Statute and concerns the negotiability of eleven (11) provisions of an
 agreement which were disapproved under section 7114(c) of the Statute.
 /1/
 
                          II.  Procedural Issues
 
    The Union argues that the disapproval -- by the Army Materiel Command
 -- was ineffectual because (1) it has not been shown that the Command
 had the authority to disapprove agreements for the Agency head under
 section 7114(c) of the Statute, and (2) the Command's disapproval was
 not served on the Union within the 30-day period required by section
 7114(c).  These contentions cannot be sustained.
 
    The Authority has explained that agency heads have the discretion to
 delegate their authority to disapprove locally negotiated agreements
 under section 7114(c).  American Federation of Government Employees,
 Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop,
 California, 19 FLRA 1016, 1017 (1985), remanded on other grounds sub
 nom. American Federation of Government Employees v. FLRA, No. 85-1689
 (D.C. Cir. Nov. 17, 1986).  In this case, unlike the delegation in
 dispute in Sharpe Army Depot, the Agency has shown that the Agency head
 had delegated this authority to the Army Materiel Command by Agency
 regulations.
 
    Regarding timely service of the disapproval, a disapproval is timely
 under section 7114 (c) if it is served on the union by certified mail
 within 30 days of the local agreement's execution date.  The date of
 service is the date it is deposited in the mail.  American Federation of
 Government Employees, AFL-CIO, Local 900 and Department of the Army,
 Office of the Adjutant General, U.S. Army Reserve Components, Personnel
 and Administrative Center, St. Louis, Missouri, 18 FLRA 40 n.1 (1985),
 remanded on other grounds sub nom. American Federation of Government
 Employees v. FLRA, No. 85-1406 (D.C. Cir. Nov. 17, 1986).  The Agency
 has shown that the disapproval was deposited in the mail by certified
 mail on June 7, 1985, which is within 30 days of the local agreement's
 execution date -- May 9, 1985.
 
                             III.  Provision 1
 
       Article 11, Section 1.d., Grievance and Arbitration Procedure
 
          An employee or group of employees filing a grievance under this
       procedure shall be represented by a union official or by a
       representative approved in writing by the Union President.
       However, the employee or group employees may elect to represent
       himself/themselves as long as the provisions of Section 1.b. above
       are complied with.
 
                       A.  Positions of the Parties
 
    The Agency asserts that the provision is nonnegotiable because it
 conflicts with sections 7114(a)(5) and 7121(b)(3) of the Statute, which
 restrict the representation of employees in negotiated grievance
 procedures to representatives who are acting for the exclusive
 representative.  The Union argues that the Agency has misunderstood the
 provision and that the provision is negotiable.  The Union states that
 the intent of the provision is "to make clear that employees may only be
 represented by bona fide agents of the (U)nion." Union petition at 2.
 
                        B.  Analysis and Conclusion
 
    The provision is negotiable.  It states that an employee may be
 represented by "a Union official" or by "a representative approved by
 the Union President." As explained by the Union, the intent of this
 provision is to allow employees to select persons who the employees
 would prefer as their representatives in the parties' negotiated
 grievance procedures.  If the Union president approves the employee's
 choice in writing, the representative will be acting as an agent for the
 Union.  This explanation is consistent with the provision's wording and
 we adopt it for the purpose of this decision.  Hence, we find that this
 provision concerns the procedures the Union will follow in designating
 its representatives.  Consequently, we find that the provision is not
 inconsistent with section 7114 or section 7121 of the Statute.  Colorado
 Nurses Association and Veterans Administration Medical Center, Ft.
 Lyons, Colorado, 25 FLRA No. 66 (1987) (proposal 1), petition for review
 filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C.
 Cir. Feb. 25, 1987).
 
    Although the operative language of this provision is virtually
 identical to the proposal held to be nonnegotiable in National
 Federation of Federal Employees, Local 1001 and Department of the Air
 Force, Vandenberg Air Force Base, California, 15 FLRA 804 (1984), the
 intent attributed to the proposal by the union in Vandenberg
 distinguishes that proposal.  As explained in Vandenberg, under section
 7114(a)(50 and section 7121 of the Statute unit employees are permitted
 two options for representation under negotiated grievance procedures --
 (1) they may be represented by the exclusive representative or (2) they
 may represent themselves.
 
    As explained by the union in Vandenberg, /2/ the intent of that
 proposal was to allow unit employees a third option -- not permitted
 under section 7114 and section 7121 -- by which unit employees could be
 represented under the negotiated grievance procedure by representatives
 who, although approved by the union, would be acting solely and
 exclusively for the employees as the employees' personal
 representatives.  By contrast and consistent with the Union's intent,
 this provision is solely concerned with the procedures by which
 employee-selected representatives are designated as union
 representatives.  It is not intended, as contrasted with the Vandenberg
 proposal, to allow employees to select personal representatives.
 
                             IV.  Provision 2
 
      Article 12, Section 2.j., Merit Placement and Promotion Program
 
       An employee is entitled to see any records or any supervisory
       appraisal of his past performance which was used or which may be
       used in the rating and ranking process under merit promotion
       procedures.  (Emphasis added.)
 
                       A.  Positions of the Parties
 
    The Agency claims the provision is nonnegotiable because it requires
 disclosures of crediting plans which conflict with the Government-wide
 rules or regulations of the Office of Personnel Management (OPM), Agency
 regulations for which a compelling need exists, and the Privacy Act (5
 U.S.C. 552a).  The Union argues that the provisions are negotiable,
 notwithstanding the requirements of OPM's regulations.
 
                               B.  Analysis
 
    1.  Government-wide rules or regulations
 
    As argued by the Agency, the provision is nonnegotiable because it is
 inconsistent with OPM's Government-wide rules and regulations.
 
    Although not explicitly stated in the provision, the parties agree
 that the underscored language, which entitles employees "to see any
 records . . . which may be used in the rating and ranking process,"
 requires the Agency to disclose crediting plans which the Agency may be
 about to use in rating candidates whenever an employee asks for this
 information.  So intended, the provision is directly analogous to the
 proposal held nonnegotiable -- as being in conflict with OPM's
 Government-wide rules or regulations -- in National Treasury Employees
 Union and Department of the Treasury, U.S. Customs Service, 23 FLRA No.
 91 (1986).
 
    As explained in Customs Service, under FPM Supplement 335-1,
 subchapter S6, and FPM Letter 335-15, OPM encourages agencies to inform
 candidates of the job requirements of positions and the procedures to be
 used when rating candidates.  However, OPM also requires agencies to
 guard against disclosures of crediting plans which could undermine the
 rating process (by giving some candidates an unfair advantage) or
 undermine the usefulness of the selection process.  FPM Supplement
 335-1, subchapter S5-3, subsection (c).  To guard against these
 disclosures, as required by OPM regulations, agencies must be able to
 evaluate and decide requests for crediting plans on a case-by-case
 basis.
 
    The proposal in Customs Service was held to be nonnegotiable, as
 being inconsistent with OPM's regulations, because it required blanket
 disclosures of crediting plans;  it required the agency to release its
 crediting plans to the Union whenever the Union requested the plans.
 Although the wording of this provision differs, it suffers from the same
 problems.  As already mentioned, the provision applies to current
 crediting plans.  It requires the Agency to release the plans to
 employees who expect to be rated under them, upon request.  Thus, the
 Agency could not reject a request for the plans when it believes that
 their disclosure might undermine the fairness and the usefulness of the
 selection process.  Accordingly, the provision is nonnegotiable on the
 same basis and for the same reasoning as the proposal in Customs
 Service.
 
    The Union's argument that the provision is negotiable notwithstanding
 OPM's rules or regulations is not compelling in this proceeding.  Under
 section 7117(a)(1) of the Statute, a matter is within the duty to
 bargain only to the extent it is not inconsistent with Government-wide
 rules or regulations.  In enacting this provision, Congress did not
 intend that the Authority would decide the merits of Government-wide
 rules or regulations.  American Federation of Government Employees v.
 FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986).
 
                          2.  Agency regulations
 
    The Agency argues that because the provision requires release of
 information, the provision is inconsistent with Agency regulation AR
 340-17, which bars release of such information.  The Agency claims that
 the provision is nonnegotiable because a compelling need exists for this
 regulation under section 2424.11(c) of our regulations because it
 implements a nondiscretionary mandate of exemption (b)(2) of the Freedom
 of Information Act (FOIA, 5 U.S.C. Section 552).  This argument cannot
 be sustained.
 
    The exemptions in the FOIA exempt agencies from the disclosure
 requirements of the FOIA;  they do not prohibit agencies from releasing
 information.  Department of the Army, Headquarters, XVIII Airborne Corps
 and Fort Bragg, North Carolina, 26 FLRA No. 52 (1987).  Accordingly, we
 cannot sustain the Agency's claim that a compelling need exists for its
 regulation which bars negotiation of the provision because, as it
 asserts, its regulation implements a nondiscretionary mandate of the
 FOIA.
 
                    3.  The Privacy Act, 5 U.S.C. 552a
 
    The Agency's claim that the provision conflicts with the Privacy Act
 cannot be sustained.  The Agency has not supported this contention, and
 the alleged conflict with the Privacy Act is not apparent to us.  Based
 on the provision's wording and the parties' understanding of its intent,
 in large part the information which is subject to the provision's
 disclosure requirements does not concern the personal privacy of
 employees.  Further, the information covered by the provision which
 would concern employees' privacy would be personal to the employees who
 requested the information.
 
                              C.  Conclusion
 
    The provision is nonnegotiable under section 7117 of the Statute
 because it is inconsistent with Government-wide rules or regulations.
 The provision is not nonnegotiable, as claimed by the Agency, because it
 conflicts with Agency regulations for which a compelling need exists or
 the Privacy Act.
 
                             IV.  Provision 3
 
      Article 12, Section 3.d., Merit Placement and Promotion Program
 
          The Union President or his representative, upon request, will
       be allowed access to the complete Merit Promotion Selection data
       when a bargaining unit employee has asked the Union to represent
       him in a formal complaint.  If requested in writing, a copy of the
       Merit Promotion Selection Roster will be furnished to the Union.
       (Emphasis added.)
 
                       A.  Positions of the Parties
 
    The Agency's position, as in Provision 2, is that the underscored
 language of this provision would require disclosures of crediting plans
 and related information which conflict with OPM's Government-wide rules
 or regulations, Agency regulations for which a compelling need exists,
 and the Privacy Act.  The Union argues that this provision is negotiable
 because it applies to disclosures of crediting plan information which is
 necessary for the Union's representation functions under the Statute.
 
                               B.  Analysis
 
                           1.  OPM's regulations
 
    As previously explained for Provision 2, in National Treasury
 Employees Union and Department of the Treasury, U.S. Customs Service, we
 found that a proposal was outside the duty to bargain because it
 required blanket disclosures of existing agency crediting plans without
 regard to whether release of those plans would undermine the fairness
 and validity of the selection procedure.  We also found, however, that
 under FPM Supplement 335-1, subchapter S6, release of crediting plans is
 authorized where the release would not create any unfair advantage to
 some candidates or compromise the utility of the selection process.  A
 determination as to whether release of crediting plans would create an
 unfair advantage or compromise the utility of the selection process
 depends on the particular circumstances present and should be made on a
 case-by-case basis.
 
    In Department of the Army, Headquarters, XVIII Airborne Corps and
 Fort Bragg, Fort Bragg, North Carolina, 26 FLRA No. 52 (1987), we found
 that disclosure of the requested data would not create an unfair
 advantage to some candidates or compromise the utility of the agency's
 selection process and therefore would not be contrary to the
 requirements of the FPM.  The requests were limited to two specific
 selection actions and did not require blanket disclosures of all agency
 crediting plans.  The crediting plans were subject to limited disclosure
 to the union to fulfill its representational duties.  We stated that
 disclosure under those circumstances would not result in an unfair
 advantage to prospective candidates (because the selection actions had
 been completed) nor would it destroy the integrity of the agency's
 selection process.
 
    The disclosures of crediting plans contemplated under Provision 3
 here are directly analogous to the disclosures in Fort Bragg.  The
 provision requires Union access to selection data only when a unit
 employee has asked the Union for representation in connection with a
 formal complaint.  As implied by the provision and confirmed by the
 Union's explanation, the selection data covered by the provision is data
 which has already been used in a selection action.  The Union also has
 explained that its access to this information will be limited to
 instances in which the information is necessary to enable the Union to
 evaluate the fairness of a completed selection action in connection with
 an EEO complaint, a contractual grievance, or an unfair labor practice.
 This explanation is consistent with the provision's wording.  Adopting
 this explanation of the provision for the purpose of this decision, we
 conclude -- absent a showing by the Agency that the Union's had
 disseminated this type of information in the past so as to prejudice the
 Agency's procedures -- that the disclosures of crediting plans covered
 by this provision are the equivalent of those in Fort Bragg.
 Accordingly, as discussed more fully in Fort Bragg, we find that this
 provision is not inconsistent with OPM's regulations.
 
                          2.  Agency regulations
 
    The Agency argues that because the provision requires release of
 information, the provision is inconsistent with Agency regulation AR
 340-17, which bars release of such information.  The Agency claims that
 the provision is nonnegotiable because a compelling need exists for this
 regulation under section 2424.11(c) of our regulations because it
 implements a nondiscretionary mandate of exemption (b)(2) of the Freedom
 of Information Act (FOIA, 5 U.S.C. Section 552).  As we previously
 explained in connection with Provision 2, this contention cannot be
 sustained because the exemptions in the FOIA do not prohibit the release
 of information.  Fort Bragg, 26 FLRA No. 52 (1987).  Accordingly, there
 is no basis for the Agency's claim that there is a compelling need for
 its regulation because it implements a restriction on the release of
 information which is mandated by the FOIA.
 
                    3.  The Privacy Act, 5 U.S.C. 552a
 
    The Union concedes that the provision may be interpreted as requiring
 disclosure of personal data on employees other than those who have
 requested Union assistance.  It has also explained, however, that the
 provision would not prevent the Agency from sanitizing selection data as
 necessary to ensure compliance with the Privacy Act.  Union brief at 10.
  Although the provision does not expressly provide for sanitizing that
 data, the Union's explanation is not inconsistent with the general
 language of the provision and we adopt it for the purpose of this
 decision.  So intended and applied, we conclude that the provision would
 not require disclosures in conflict with the Privacy Act.
 
                              C.  Conclusion
 
    The provision is negotiable.  It is not inconsistent with
 Government-wide regulations, Agency regulations for which a compelling
 need exists, or the Privacy Act.
 
                              V.  Provision 4
 
                     Article 14, Section 2.g., Details
 
       An employee will not be detailed to a draft job description or a
       set of duties beyond his physical capabilities.
 
                       A.  Positions of the Parties
 
    The Agency asserts that this provision is nonnegotiable because it
 restricts management's discretion to assign employees and assign work,
 in conflict with management's rights under section 7106(a)(2)(A) and (B)
 of the Statute.  The Agency also contends that the provision does not
 constitute an "appropriate arrangement" under section 7106(b)(3) of the
 Statute, because the provision's standard for restricting management's
 right to assign employees and to assign work -- an employee's physical
 capabilities -- is too vague.  The Union argues that the provision
 constitutes a negotiable appropriate arrangement under section
 7106(b)(3) of the Statute because it is intended to protect employees'
 health and safety.
 
                        B.  Analysis and Conclusion
 
    The provision is nonnegotiable.  Based on its wording and the Union's
 explanation of its intent, the provision would preclude management from
 assigning to employees duties which are beyond employees' "physical
 capabilities." So intended, the provision conflicts with management's
 right to assign work under section 7106(a)(2)(B) of the Statute.  See
 National Federation of Federal Employees, Local 943 and Department of
 the Air Force, Headquarters Keesler Technical Training Center, Keesler
 Air Force Base, Mississippi, 19 FLRA 949, 951 (1985) and National
 Federation of Federal Employees, Local 1624 and Air Force Contract
 Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980), in which
 the Authority held nonnegotiable proposals which required management to
 tailor assigned duties to employees' physical capabilities.  Since the
 provision applies to duties of positions to which employees may be
 assigned -- as well as to duties in positions to which employees have
 already been assigned -- the provision also conflicts with the right to
 assign employees under section 7106(a)(2)(A).
 
    Because the provision conflicts with management's rights under
 section 7106(a)(2)(A) and (B), the provision is nonnegotiable unless it
 constitutes a negotiable appropriate arrangement under section
 7106(b)(3) of the Statute.  National Association of Government
 Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4
 (1986).  As explained in Kansas Army National Guard, to determine
 whether the provision constitutes a negotiable appropriate arrangement,
 we determine whether the provision is intended to be an arrangement for
 employees who may be adversely affected by the exercise of management's
 statutory rights.  If the provision is so intended, we determine whether
 the intended arrangement is appropriate, or whether it is inappropriate
 because it excessively interferes with the exercise of management's
 rights.
 
    We conclude that this provision is intended to be an arrangement for
 employees who may be adversely affected by the exercise of management's
 rights to assign employees and assign work.  Based on the Union's
 undisputed explanation, the provision is intended to protect employees
 from duties, in new or preexisting positions, which would endanger their
 health or safety.
 
    In determining whether the intended arrangement is appropriate,
 however, we agree with the Agency's position that the provision's
 standard for restricting management's rights -- whether the duties are
 within employees' physical capacities -- is too broad.  The restriction
 would apply to any duty assignments which employees perceived to be
 beyond their physical capacities for any reason, and to any extent.  In
 this regard, notwithstanding the Union's stated purpose, the provision
 excessively interferes with management's rights to assign employees and
 assign work.
 
    Accordingly, we conclude that the provision does not constitute a
 negotiable appropriate arrangement under section 7106(b)(3).
 
                             VI.  Provision 5
 
   Article 23, Section 3.c., General Performance Appraisal System (GPAS)
 
       Positions which are assigned essentially the same duties and
       responsibilities under a common job description will have
       essentially the same major job elements.
 
                       A.  Positions of the Parties
 
    The Agency argues that the provision would determine the performance
 standards for Agency positions in conflict with management's rights to
 direct employees and assign work under section 7106(a)(2)(A) and (B) of
 the Statute.  The Union asserts that the provision is negotiable because
 the provision is only concerned with standardizing positions
 descriptions, and it would only require the Agency to establish position
 descriptions which reflected employees' assigned duties.
 
                        B.  Analysis and Conclusion
 
    The provision is identical to Provision 1 which was held to be
 nonnegotiable in American Federation of Government Employees, AFL-CIO,
 Local 1858 and U.S. Army Ordnance Missile and Munitions Center and
 School (USAOMMCS), Redstone Arsenal, Alabama, 26 FLRA No. 12 (1987).  In
 that decision we stated that the provision would preclude management's
 determination that critical elements of similar positions under a common
 job description should not be the same because, in management's
 judgment, the different circumstances relating to work performance in
 those positions warrant weighing job elements differently and, thus,
 establishing different critical elements.
 
    The Union's explanation -- that the provision merely requires the
 Agency to establish position descriptions for employees which reflected
 employees' assigned duties -- does not comport with the wording of the
 provision.  We will not base a negotiability decision on a Union
 statement of intent which is clearly inconsistent with the language in
 dispute.  For example, National Federation of Federal Employees, Local
 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air
 Force Base, Colorado, 11 FLRA 565, 574 (1983).  Based on the plain
 wording of the provision, we conclude that it is nonnegotiable because
 it would preclude the Agency from determining the critical elements of
 Agency positions.
 
                             VII.  Provision 6
 
               Article 26, Section 2.a. Disciplinary Actions
 
       Prior to deciding whether or not a disciplinary action is
       warranted, the immediate supervisor shall undertake a preliminary
       investigation and discussions with the employee concerned.
 
                       A.  Positions of the Parties
 
    The Agency argues that the provision conflicts with management's
 right to assign work under section 7106(a)(2)(B) of the Statute because
 it requires the Agency to assign to supervisors investigative and
 counseling tasks which Agency management may prefer to assign to other
 personnel.  The Union argues that the provision is negotiable because
 the functions are not onerous and supervisors may request that the
 investigative and counseling functions be performed by other personnel.
 
                        B.  Analysis and Conclusion
 
    The Authority has consistently held that managment's right to assign
 work under section 7106(a)(2)(B) encompasses the right to assign
 specific duties to particular individuals, including management
 officials, and that provisions which interfere with this right are
 nonnegotiable.  For example, National Association of Government
 Employees, AFL-CIO, Local R14-87 and Department of the Army and the Air
 Force, Kansas Army National Guard, 19 FLRA 381 1985);  American
 Federation of Government Employees, AFL-CIO, Local 32 and Office of
 Personnel Management, 14 FLRA 278 (1984), aff'd mem. sub nom. Local 32,
 AFGE v. FLRA, No. 84-1251 (D.C. Cir. May 10, 1985).  Since this
 provision requires the Agency to assign certain investigative and
 counseling tasks to supervisors it violates the right to assign work and
 is nonnegotiable.
 
    The Union points out that in National Treasury Employees Union and
 Department of Treasury, Internal Revenue Service, 8 FLRA 136 (1982)
 (IRS), the Authority held proposals which concerned the manner in which
 inspectors would notify employees of certain procedures, privileges, and
 obligations for interrogations which could lead to disciplinary action
 to be negotiable.  We do not consider that decision to be controlling
 here.  First, the agency's objections to the proposals in IRS were that
 the proposals did not concern conditions of employment and they
 conflicted with the agency's right to determine its internal security
 practices under section 7106(a)(1).  Second, in contrast to the Agency's
 position here, in IRS the agency made no claim that the proposals
 interfered with the right to assign work under section 7106(a)(2)(B).
 Third, nothing in the record in IRS indicated that the proposals
 concerned the assignment of duties to inspectors which were beyond the
 duties the agency had already assigned to the inspectors.
 
    Were it not for the provision's defect requiring that investigative
 and counseling functions will be performed by supervisors, which appears
 to be subsidiary to the basic intent of the provision, we would conclude
 that the provision is negotiable.  The provision's general requirements
 -- that some investigation be completed and some counseling be given
 employees before discipline is imposed -- clearly concern conditions of
 employment under section 7103(a)(14) of the Statute.  Moreover, these
 general requirements constitute procedures, concerning the exercise of
 management rights, which are negotiable under section 7106(b)(2) of the
 Statute.  Accordingly, the local parties who negotiated the provision
 can preserve its underlying intent and their commitment to sound and
 effective labor-management relations if they negotiate the elimination
 of this defect.
 
    In this regard, the nonnegotiability of provisions which assign tasks
 to particular agency personnel is established in long-standing Authority
 precedent and should be familiar to union and management
 representatives.  For examples, American Federation of Government
 Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
 Force Base, Ohio, 2 FLRA 604, 631 (1980).  Nevertheless, the matter
 continues to be a source of negotiability disputes before the Authority.
 
    Local parties should conduct their negotiations in a manner which
 attempts to ensure that provisions will not be disapproved under section
 7114(c) based on a deficiency which -- as appears to have occurred here
 -- does not go to the heart of the matter upon which the local parties
 had reached agreement.  Union representatives should carefully word
 their proposals and explain their intent to ensure that the assignment
 defect present in Provision 6 does not arise.  Similarly, management
 representatives should be able to recognize such potential defects early
 in negotiations and to signal their willingness to discuss a proposal
 which eliminates the assignment defect.
 
    Effective and efficient labor-management relations is also fostered
 when agency heads explore alternative, constructive processes which will
 enable them to avoid disapprovals of provisions like Provision 6 when
 the defect in the provision does not appear to be central to the
 provision's basic intent.  For example, if an agency head is able to
 identify the problem early in the 30-day review process, the local
 parties might be notified immediately and discussions with the union
 could be initiated to eliminate the problem before the review period
 under section 7114(c) expires.
 
                            VIII.  Provision 7
 
                Article 26, Section 3, Disciplinary Actions
 
       The employee will also have the right to a representative of his
       choice as approved by the Union President.
 
                       A.  Positions of the Parties
 
    The Agency asserts that this provision is nonnegotiable because it
 conflicts with employees' right to select personal representatives under
 statutory adverse action procedures, as provided under 5 U.S.C. Section
 7503(b)(3).  The Union claims that the provision is negotiable, because
 it is only concerned with allowing employees to select representatives
 who would be acting for the Union.
 
                        B.  Analysis and Conclusion
 
    The provision is nonnegotiable.  Based on its wording and the
 Agency's explanation of its intent, which is not disputed by the Union
 and which we adopt for the purpose of this decision, the provision
 requires Union approval of employee representatives in any grievance or
 appeal action.  So intended, the provsion conflicts with section
 7114(a)(5) of the Statute.  This section provides that in any grievance
 or appeal procedure which has not been negotiated under the Statute,
 like the adverse action procedures of 5 U.S.C. Sections 7501-04,
 employees are guaranteed the right to select their own personal
 representatives.  See Vandenberg, 15 FLRA 804, 806 (1984).  Provision 7
 is distinguishable in this regard from Provision 1 which is concerned
 solely with representation in a negotiable grievance procedure.
 
                             IX.  Provision 8
 
                           Article 27, Section 1
 
                       Fitness for Duty Examinations
 
       Before submitting a formal request for a fitness for duty physical
       examination, the supervisor will conduct, in accordance with the
       Federal Personnel Manual, a counseling session with the employee,
       to discuss the problem and inform the employee of alternatives
       (retirement, reassignment, etc.) available to him.
 
                       A.  Positions of the Parties
 
    The Agency argues that the provision is nonnegotiable because OPM's
 Government-wide rules or regulations -- in the Federal Personnel Manual
 (FPM), 5 CFR Section 339.302, and 5 CFR 831.1203(b) -- do not require
 agencies to counsel employees before they require employees to undergo
 fitness-for-duty ("medical suitability") examinations.  The Agency also
 argues that the provision is nonnegotiable because it requires the
 Agency to assign counseling functions to supervisors in conflict with
 the right to assign work under section 7116(a)(2)(B) of the Statute.
 The Union argues that the provision is negotiable.
 
                        B.  Analysis and Conclusion
 
    Based on its wording and the parties' explanations, the provision
 requires the Agency to assign specific counseling functions to
 supervisors.  In this regard the provision is nonnegotiable because it
 conflicts with management's right to assign work under section
 7106(a)(2)(B) of the Statute, on the same basis and for the same reasons
 as Provision 6, above.  The Agency's other objections to the provision
 cannot be sustained.
 
    As argued by the Agency, OPM's regulations do not require agencies to
 counsel employees before they are required to submit to fitness-for-duty
 medical examinations.  However, in our view OPM's regulations do not
 prohibit such counseling.  Furthermore, the provisions of subchapter 1-3
 of FPM chapter 339 refer to alternatives to removal if an employee is
 shown to be suffering from a medical disability.  The Agency has not
 shown that the counseling required by the provision conflicts with these
 OPM's regulations.  The provision does not mandate the Agency to
 implement any alternative for an employee.  Rather, it merely requires
 the Agency to counsel employees on their available alternatives.
 
    Like Provision 6, this provision is nonnegotiable only because it
 requires that counseling tasks will be performed by supervisors, a
 requirement which appears to be subsidiary to the basic intent of the
 provision.  Accordingly, our comments in connection with Provision 6
 concerning the avoidance of such defects are equally applicable here.
 
                              X.  Provision 9
 
                      Article 47, Section 1.a., Leave
 
       Justified emergency annual leave will not be based solely on the
       employer's need for the employee to work overtime.
 
                       A.  Positions of the Parties
 
    The Agency argues that the provision conflicts with the OPM's
 Government-wide rules or regulations in FPM Supplement 900-2, chapter
 630, subchapter 3, and FPM Letter 630-29.  The Agency also argues that
 the provision conflicts with the right to assign work under section
 7106(a)(2)(B).  The Union argues that the provision constitutes a
 negotiable appropriate arrangement under section 7106(b)(3) of the
 Statute.
 
                               B.  Analysis
 
                           1.  OPM's regulations
 
    The provision does not conflict with OPM's regulations.  OPM's
 requirements on approvals of employee leave requests are explained in
 detail in FPM Letter 630-29 (Jan. 28, 1981).  Paragraph 7 of this OPM
 letter states:
 
          7.  Mandatory Approval of Leave Requests.  There are instances
       (such as treatment for disabled veterans, military service,
       certain retirements, and certain illnesses, injuries, or
       pregnancies) in which approval of leave requests is mandatory. . .
       .  Further mandatory requirements for approval of leave within an
       agency may be established through negotiated agreement.  (Emphasis
       added.)
 
    Based on this explanation of OPM's regulations, we find that the
 Agency has not established that OPM's regulations bar Provision 9's
 requirements on leave approvals.
 
                       2.  The right to assign work
 
    The Union explains the provision as requiring approvals of leave
 requests which will take precedence over the assignment of overtime work
 when the employee's leave request is justified because of a "dire
 physical, family, or other personal emergency." Union brief at 27.
 Adopting this explanation for the purpose of this decision, we find that
 the provision directly interferes with management's ability to assign
 overtime work and, hence, that it conflicts with the right to assign
 work under section 7106(a)(2)(B).  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) (provisions 6-8).
 
    We turn now to the question of whether the provision constitutes a
 negotiable appropriate arrangement under section 7106(b)(3) of the
 Statute.  As explained in connection with Provision 4, above, we answer
 this question by determining (a) whether the provision is intended to be
 an arrangement for employees adversely affected by the exercise of a
 management right, and (b) whether the provision is appropriate because
 it does not excessively interfere with the exercise of the management
 right.  We find, based on the Union's explanations, that the provision
 is intended to be an arrangement which would ease the impact of overtime
 assignments on employees' personal circumstances.
 
    We are unable to conclude, however, that the provision would not
 excessively interfere with the exercise of the management right.  The
 language of the provision does not acknowledge the existence of overtime
 assignments which must be performed because there is no alternative.
 The provision does not acknowledge management's need to assign overtime
 work to a particular employee because that employee is the only employee
 capable of performing the work -- for example, because of the employee's
 particular skills or the employee's location.  The provision simply
 requires that an employee's justification for emergency leave shall take
 precedence in all circumstances, regardless of management's
 requirements.  In this regard, we conclude that the provision does
 excessively interfere with management's right under section
 7106(a)(2)(B) to assign work.
 
                              C.  Conclusion
 
    The provision is nonnegotiable.  The provision conflicts with the
 right to assign work under section 7106(a)(2)(B) of the Statute and it
 does not constitute a negotiable appropriate arrangement under section
 7106(b)(3).
 
                             XI.  Provision 10
 
                           Article 50, Section 1
 
                 Inclement Weather or Emergency Conditions
 
       (T)he Installation Commander of Redstone Arsenal will determine
       when all or part of the Installation will be closed.  The
       Commander will authorize the public broadcast media to announce
       Installation status when the Installation is to be closed.
 
                       A.  Positions of the Parties
 
    The Agency argues that the provision is nonnegotiable because it
 requires the Agency to assign specific tasks to certain personnel, in
 conflict with management's right to assign work under section
 7106(a)(2)(B).  The Union asserts that the provision is negotiable
 because it only requires the Agency to authorize broadcast media to
 announce the dates when the Agency's installation will be closed due to
 emergency conditions.
 
                        B.  Analysis and Conclusion
 
    The Agency does not claim that the provision is nonnegotiable because
 it requires the Agency to authorize announcements of installation
 closings.  There is nothing in the record which would indicate that this
 requirement would be nonnegotiable.
 
    However, the provision requires the Agency to assign certain tasks to
 specific personnel:  the Installation Commander must determine when all
 or part of the Installation is to be closed.  In this regard, the
 provision is nonnegotiable on the same basis and for the same reasons as
 Provisions 6 and 8, above.  It conflicts with management's right to
 assign work under section 7106(a)(2)(B) of the Statute.
 
    Like Provisions 6 and 8, this provision is nonnegotiable only because
 it requires that particular personnel -- the Installation Commander --
 will perform certain tasks, a requirement which appears to be subsidiary
 to the basic intent of the provision.  Accordingly, our comments in
 connection with Provision 6 concerning the avoidance of such defects are
 equally applicable here.
 
                            XII.  Provision 11
 
                     Article 58, Section 3.e., Safety
 
       No employee, other than qualified maintenance personnel, shall be
       required to perform repair work on moving operating machines while
       in motion or operation.
 
                       A.  Positions of the Parties
 
    The Agency argues that the provision conflicts with management's
 right to assign work under section 7106(a)(2)(B) of the Statute because
 it prevents the Agency from assigning certain types of work to
 employees.  The Union argues that the provision is negotiable as an
 appropriate arrangement under section 7106(b)(3) of the Statute because
 it is intended to protect employees from imminent danger of serious
 injury or death.
 
                        B.  Analysis and Conclusion
 
    The provision is nonnegotiable because it conflicts with management's
 right to assign work under section 7106(a)(2)(B) and it does not
 constitute a negotiable appropriate arrangement under section
 7106(b)(3).
 
    As previously explained in connection with Provision 6, provisions
 which require management to assign certain tasks to particular personnel
 conflict with the right to assign work under