27:0467(68)NG - AFGE National INS Council and INS -- 1987 FLRAdec NG



[ v27 p467 ]
27:0467(68)NG
The decision of the Authority follows:


 27 FLRA No. 68
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, NATIONAL
 IMMIGRATION AND NATURALIZATION 
 SERVICE COUNCIL
 Union
 
 and
 
 U.S. IMMIGRATION AND 
 NATURALIZATION SERVICE
 Agency
 
                                            Case No. 0-NG-1069
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This petition for review comes before the Authority pursuant to
 section 7105(a)(2)(E) of the Federal Service Labor-Management Relations
 Statute (the Statute) and raises issues concerning the negotiability of
 seven provisions of an agreement which were disapproved by the Agency
 head pursuant to section 7114(c) of the Statute.
 
    The Union's petition for review included fourteen additional
 provisions.  After the petition for review was filed, the Agency
 withdrew its disapproval of thirteen of these provisions pursuant to the
 Union's stated meaning of those provisions.  Thus, the petition for
 review is moot as to the following provisions:  Article 13, E(3) and
 (4);  Article 17H;  Article 17M;  Article 20E;  Article 22C;  Article
 27C;  Article 29E and G;  Article 32V and D(2);  Article 36F;  Article
 43G;  Article 50;  Article 56G(3);  and Article 56E(3).  Further, in its
 response to the Agency's Statement of Position, the Union withdrew its
 petition as to disputed language within Article 47D(3).  Therefore, the
 petition is moot as to that issue as well.
 
                             II.  Provision 1
 
          Article 13D:
 
          An employee may file a grievance pursuant to this Article
       within fifteen (15) days following:
 
          (1) the date of the alleged discriminatory incident, or
 
          (2) the date upon which the aggrieved became aware of the
       alleged discriminatory incident or situation;  or
 
          (3) the date of the employee's final interview with the Equal
       Employment Opportunity Counselor.  (Only the underscored portions
       are in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency argues that when an employee chooses to initiate informal
 counseling with an Equal Employment Opportunity (EEO) counselor, the
 employee has made the election between the negotiated grievance
 procedure and a statutory procedure which is required by section 7121(d)
 of the Statute.  /1/ According to the Agency, the disputed language is
 contrary to the Statute because it would permit an employee to obtain
 EEO counseling and then file a grievance under the negotiated procedure
 concerning the same matter.  In support of its argument, the Agency
 asserts that the Equal Opportunity Employment Commission (EEOC) has
 exclusive regulatory authority in these matters under 42 U.S.C. Section
 2000e-16(b) /2/ and that EEOC regulations in 29 C.F.R. Section
 1613.214(a)(1)(i) and (ii) /3/ provide that a complainant begins an EEO
 action when counseling is initiated.  The Agency also relies on an EEOC
 decision which states that "first contact with the counselor, notifying
 the counselor of the alleged discriminatory matter" initiates an action
 under EEOC regulations.  Healy v. General Services Administration, EEO
 Appeal No. 01831645 (July 13, 1984).
 
    The Union contends that an EEO action is not initiated until an
 employee files a formal written complaint pursuant to 29 C.F.R. Section
 1613.214.  Thus, the disputed language is consistent with applicable
 law, the Union argues, as an employee would be able to choose the
 grievance process prior to initiating formal EEO procedures.  In
 addition, the Union points out that the EEOC regulations cited by the
 Agency deal only with timeliness in filing an EEO complaint and do not
 define what constitutes the timely initiation of an action.
 
                               B.  Analysis
 
    The disputed language in Article 13D would permit an employee to file
 a grievance under the negotiated procedure within 15 days of the
 employee's final interview with an EEO Counselor.  Therefore, under the
 provision an employee could grieve a matter which the employee had
 previously brought to the attention of an EEO counselor.  However, the
 Statute provides in section 7121(d) that when an employee affected by a
 prohibited personnel practice under section 2302(b)(1), /4/ such as an
 allegation of discrimination, has raised the matter under a statutory
 procedure, the employee may not file a written grievance in the
 negotiated procedure concerning the same matter.  /5/ Thus, the question
 raised in this negotiability dispute is whether consultation with an EEO
 counselor timely initiates the statutory EEO procedure.
 
    This issue was resolved by the Authority in U.S. Department of
 Justice, United States Marshals Service and International Council of
 U.S. Marshals Service Locals, AFGE, 23 FLRA No. 60 (1986).  In that
 case, which resulted from the filing of an exception to an arbitration
 award, the agency argued that the grievant had raised the matter he
 grieved in a prior consultation with an EEO counselor.  The agency
 asserted that the award was barred by, and that it was consequently
 deficient as contrary to, section 7121(d).
 
    Without deciding whether the matter at issue was, in fact, the same,
 the Authority concluded that "a grievance timely filed in writing in
 accordance with the negotiated grievance procedure is only precluded or
 barred by the grievant having earlier raised the same matter by the
 timely filing of a formal written complaint, in accordance with 29 CFR
 Section 1613.214." United States Marshals Service, slip op. at 4,
 (emphasis added).  In reaching this conclusion, we found that 29 C.F.R.
 part 1613 does not specify when an action concerning a matter of
 discrimination is raised under the EEO procedures.  However, we noted
 that the EEOC has proposed to amend its regulations to provide at 29
 C.F.R. Section 1613.219 that an election to proceed under EEO procedures
 is indicated only by the filing of a formal written complaint and that
 the use of the precomplaint process of 29 C.F.R. Section 1613.213 does
 not constitute an election of remedies.  51 Fed. Reg. 29482, 29483,
 39488-89 (to be codified at 29 C.F.R. pt. 1613) (proposed Aug. 18,
 1986).  Additionally, we stated that one of the primary purposes of
 section 7121 is to preclude litigation of the same matter under the
 applicable statutory procedure and the negotiated grievance procedure.
 Since the precomplaint process is a predominantly informal,
 confidential, and conciliatory process, the avoidance of litigation in
 two forums is not served by barring grievances from the negotiated
 grievance procedure because employees have sought counseling under EEO
 procedures.
 
                              C.  Conclusion
 
    Based on the reasoning and analysis in United States Marshals
 Service, we conclude that the timely initiation of an action under the
 statutory EEO procedure occurs with the filing of a formal written
 complaint.  Thus, Provision 1 is not inconsistent with the Statute and
 we hold that it is within the duty to bargain.
 
                         III.  Provisions 2 and 7
 
    Provision 2, Article 13E(9) (Equal Employment Opportunity) and
 Provision 7, Article 57, G(9) (Sexual Harassment) are identical and
 state as follows:
 
          At any stage in the processing of an EEO complaint, the
       employee shall have the right to be accompanied, represented, and
       advised by a representative of his/her choosing.
 
                       A.  Positions of the Parties
 
    The Agency contends that these provisions are nonnegotiable because
 they intrude in an area over which the EEOC has exclusive regulatory
 authority pursuant to 42 U.S.C. Section 2000e-16(b).  Further, the
 Agency asserts that no statutory right of representation exists at the
 counseling stage.  The Union argues that the provisions are negotiable
 since they constitute an affirmation of rights already in existence
 under 29 C.F.R. Section 1613.214(b).
 
                        B.  Analysis and Conclusion
 
    The disputed provisions contain nearly the same language as 29 C.F.R.
 Section 1613.214(b).  That section provides, in part, that "(a)tany
 stage in the presentation of a complaint, including the counseling stage
 under Section 1613.213, the complainant shall have the right to be
 accompanied, represented, and advised by a representative of his own
 choosing." Thus, these provisions are consistent with regulation and
 affirm existing rights of bargaining unit employees.  In this regard,
 contrary to the Agency's assertion, it is noted that the regulations
 specifically provide for representation in the counseling stage of an
 EEO matter.
 
    The disputed provisions in this case are similar to those in American
 Federation of Government Employees, Local 2761 and U.S. Army Adjutant
 General Publication Center, St. Louis, Missouri, 17 FLRA 899 (1985)
 (Proposal 3).  In that case, the union sought to negotiate two proposals
 stating that management was committed to the EEO program and would
 allocate necessary resources to the program, including a staff of
 trained EEO counselors.  The Authority concluded that the proposals
 implemented and provided generalized support for the agency's EEO
 program consistent with law.  Similarly, in this case, the provisions
 reinforce the rights of bargaining unit employees to representation in
 the EEO complaint process.  Therefore, based on U.S. Army Adjutant
 General Publication Center, we find that the provisions are within the
 duty to bargain.  See also Delaware Army and Air National Guard and
 Association of Civilian Technicians, Delaware Chapter, 16 FLRA 398, 402
 (1984) (proposal stating that no position would be filled in any manner
 that would circumvent the EEO rights of any bargaining unit member held
 to constitute an affirmation of rights already in existence and to
 require the employer to act in a manner consistent with law).
 
                             IV.  Provision 3
 
          Article 17K(2):
 
          Approved annual leave requests for sixteen (16) hours or more,
       once approved, will be cancelled only for valid operational
       reasons which require the employee not to take leave.  Valid
       operational reasons include such matters as illness or death of
       another employee, directed details by authority outside the
       Service, special mission requirements which do not lend themselves
       to normal scheduling, and other events which create an actual
       necessity for personnel and not reasons which may make cancelling
       leave merely desirable.  (Only the underscored portion is in
       dispute.)
 
                       A.  Positions of the Parties
 
    The Agency claims that Provision 3 interferes with its rights under
 section 7106(a)(2)(A) and (B) of the Statute to direct employees and
 assign work by unduly restricting its determination of when annual leave
 will be taken.  In this regard, the Agency relies on Federal Personnel
 Manual (FPM) Letter 630-29 (Jan. 28, 1981) which states that agencies
 may fix the time at which leave is taken.  Provision 3, according to the
 Agency, would require that management persuade an arbitrator that a
 business necessity existed for an employee's services before leave was
 cancelled.  Since management must schedule and approve annual leave
 early in the calendar year under the parties' collective bargaining
 agreement, the Agency asserts the arbitration requirement would prevent
 it from considering contingencies that might arise after leave was
 approved.
 
    The Union responds that Provision 3 does not conflict with
 management's unilateral discretion to cancel approved annual leave.  In
 support of its argument, the Union asserts that the standard established
 in Provision 3 is consistent with FPM Letter 630-29.  Furthermore, the
 Union states that the provision does not require arbitration prior to a
 leave cancellation.
 
                               B.  Analysis
 
    Contrary to the Agency's argument, we find that Provision 3 does not
 set a precondition on management's right to cancel annual leave.  The
 language of the provision does not require arbitration before management
 cancels approved annual leave.  Moreover, there is no information in the
 record to support the Agency's contention that the provision would
 require it to arbitrate before it cancels an employee's leave.
 
    In agreement with the Union, we find that the standard in Provision
 3, that approved annual leave for sixteen hours or more may be cancelled
 "only for valid operational reasons," is consistent with Office of
 Personnel Management (OPM) guidance in FPM Letter 630-29.  That letter
 states in section 2:
 
          Denial of a leave request or cancellation of approved leave
       normally needs to be based on the necessity for the employee's
       services.  Leave must not be denied or cancelled for arbitrary or
       capricious reasons.  Denial or cancellation of leave is not
       disciplinary in character and must not be used as a punitive
       measure.
 
    In our view, Provision 3 requires that management make the same
 determination that is required by the standard in the cited FPM letter.
 That is, management must consider whether an employee's services are
 needed for operational reasons before cancelling approved annual leave.
 Furthermore, the examples of "valid operational reasons" in Provision 3
 make it clear that management is able to reconsider annual leave which
 it previously approved.  Changed circumstances, such as an unexpected
 lack of personnel to perform work, unanticipated assignments, and
 similar contingencies which were unknown to management when leave was
 approved would constitute "valid operational reasons" for leave
 cancellation.
 
    After consideration of the above factors, we conclude that the
 disputed portion of Provision 3 does not restrict management's
 discretion to determine when leaved will be taken.  Compare American
 Federation of Government Employees, AFL-CIO, Local 1858 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, 27 FLRA No. 14 (1987) (provision
 requiring an agency to approve an annual leave request submitted because
 of an employee's dire physical, family, or other personal emergency
 regardless of its need to assign overtime work held nonnegotiable
 because it excessively interfered with management's right to assign
 work);  American Federation of Government Employees, AFL-CIO, Local 2263
 and Department of the Air Force, Headquarters, 1606th Air Base Wing
 (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580, 583 (1984)
 (Proposal 4) (proposal held nonnegotiable because it left management no
 discretion to deny an employee's leave request if the request was
 clearly documented).
 
                              C.  Conclusion
 
    In these circumstances, we hold that Provision 3 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 is within the duty to
 bargain.
 
                              V.  Provision 4
 
          Article 24D(1) and (2):
 
          (1) The Service will make every effort to accommodate the
       practice of religious beliefs by individual employees as
       consistent with the needs of the Service.  Employees who are
       required to be absent for some period of the workday because of
       religious observance or belief, may elect to work compensatory
       overtime as a substitute for the time off, or take appropriate
       leave.
 
          (2) The employer shall grant compensatory time off to an
       employee requesting such time off, and shall in each instance
       afford the employee the opportunity to work compensatory overtime
       in order to repay the compensatory time off.  A request may be
       disapproved, however, if the requested change in work schedule
       would interfere with the ability of an organization to efficiently
       accomplish its mission.  In such circumstances, there is no
       obligation to approve requests for time off for religious
       observances.  (Only the underscored portions are in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency contends that Provision 4 conflicts with its right to
 assign work under section 7106(a)(2)(B) of the Statute because
 subsection D(1) mandates that leave be granted for religious reasons at
 a particular time.  Moreover, the standard for review, according to the
 Agency, is inconsistent with, and presumably stricter, than the "undue
 hardship" standard set forth in 42 U.S.C. Section 2000e(j), the Civil
 Rights Act of 1964, as amended.  Additionally, the Agency asserts that
 the provision would subject management's decisions regarding its need
 for an employee's services to arbitral review.
 
    The Union claims that the provision does not mandate that leave be
 granted to accommodate employees' religious beliefs because subsection
 D(2) specifically states that requests may be disapproved.  Further, the
 Union argues that the provision's "efficient accomplishment of mission"
 standard is consistent with the "undue hardship" standard of 42 U.S.C.
 Section 2000e(j).
 
                               B.  Analysis
 
    Considering the disputed subsections together, we conclude that
 subsection D(1) does not mandate that management grant leave or
 compensatory time off at a particular time to an employee to accommodate
 the practice of religious beliefs.  Rather, the language "make every
 effort" in subsection D(1) is limited by the standard set forth in
 subsection D(2) which states that leave may be disapproved if the
 requested change would interfere with the ability of the organization to
 efficiently accomplish its mission.  Moreover, the language at D(1)
 refers to the "needs of the Service." Therefore, in disagreement with
 the Agency, we find that management retains discretion under Provision 4
 to determine whether an employee's request for leave or compensatory
 time will be approved.
 
    Also, contrary to the Agency's assertions, we see no conflict between
 the standard in the disputed provision and the "undue hardship" test in
 42 U.S.C. Section 2000e(j), the Civil Rights Act of 1964.  The latter
 standard requires employers including Federal agencies, to "reasonably
 accommodate to an employee's . . . religious observance or practice
 without undue hardship on the conduct of the employer's business." In
 addition, in 1978 Congress required that OPM establish regulations
 providing for compensatory time off for religious observances.  See 5
 U.S.C. Section 5550a.  The standard in subsection D(2) is essentially
 the same as that established by OPM in 5 C.F.R. Section 550.1002(b)
 which states as follows:
 
          To the extent that such modifications in work schedules do not
       interfere with the efficient accomplishment of an agency's
       mission, the agency shall in each instance afford the employee the
       opportunity to work compensatory overtime and shall in each
       instance grant compensatory time off to an employee requesting
       such time off for religious observances when the employee's
       personal religious beliefs require that the employee abstain from
       work during certain periods of the workday or workweek.  (Emphasis
       added.)
 
    In our view, the Government-wide regulation concerning work schedule
 changes to accommodate employees' personal religious beliefs applies the
 broader religious accommodation provision of the Civil Rights Act.
 Inasmuch as Provision 4 incorporates the standard found in a
 Government-wide regulation, the Agency's argument that the standard is
 inappropriate cannot be sustained.
 
    It is noted that the Authority has consistently held nonnegotiable
 proposals which establish a standard different from that found in 5
 C.F.R. Section 550.1002(b).  Federal Union of Scientists and Engineers,
 Local R1-144 and Department of the Navy, Naval Underwater Systems
 Center, 26 FLRA No. 67 (1987) (proposal requiring an agency to grant
 compensatory time off unless it "would seriously interfere with the
 accomplishment of the activity's mission").  See also American
 Federation of Government Employees, AFL-CIO, Local 1923 and Department
 of Health and Human Services, Social Security Administration, Baltimore,
 Maryland, 17 FLRA 543, 544 (1985);  American Federation of Government
 Employees, AFL-CIO, Local 2263 and Department of the Air Force,
 Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New
 Mexico, 15 FLRA 580, 584 (1984) (Proposal 5).
 
    Additionally, the Agency argues that the provision is nonnegotiable
 because it would subject management decisions regarding accommodation
 for religious observances to the grievance procedure and permit the
 substitution of an arbitrator's judgment for that of management.  We
 reject this argument based on section 7103(a)(9)(C)(ii) of the Statute
 which defines a grievance to include "any claimed violation,
 misinterpretation, or misapplication of any law, rule, or regulation
 affecting conditions of employment." As discussed above, provision for a
 change in work schedules for religious observances and a standard to
 evaluate management's decisions on employees' requests is part of a
 Government-wide regulation.  Therefore, regardless of whether the
 disputed language becomes part of the contract, a management decision
 concerning leave or a change in work schedule is a grievable matter
 under section 7103.  See National Treasury Employees Union and Internal
 Revenue Service, 3 FLRA 693 (1980) (laws affecting conditions of
 employment are encompassed within the definition of "grievance" under
 section 7103(a)(9) and thus are within the scope of a negotiated
 procedure under section 7121).
 
                              C.  Conclusion
 
    We conclude that the disputed language in Provision 4 does not
 conflict with the Agency's right to assign work at a particular time
 under section 7106(a)(2)(B) of the Statute.  In these circumstances, we
 find that the disputed portions in Provision 4 are within the duty to
 bargain.
 
                              V.  Provision 5
 
          Article 38D:
 
          The Service will attempt to minimize actions that adversely
       affect employees which often follow reduction-in-force by using,
       to the extent feasible, attrition to accomplish reductions.  All
       reductions-in-force will comply with applicable laws and
       regulations.
 
          Article 38J:
 
          The Service will attempt to minimize actions that adversely
       affect employees which often follow a reduction-in-force by using,
       to the extent possible, attrition to accomplish reductions.  In
       the event career or career-conditional employees are separated by
       reduction-in-force, the Service will refer these names to the
       Department of Justice for inclusion on the appropriate
       reemployment priority list in accordance with governing
       regulations.  Employees will be given preference for reemployment
       consistent with governing regulation.  (Only the underscored
       portions are in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency contends that the disputed language violates management's
 rights to determine its organization under section 7106(a)(1) of the
 Statute;  to hire, layoff, and retain employees pursuant to section
 7106(a)(2)(A);  to determine the personnel by which agency operations
 shall be conducted under section 7106(a)(2)(B);  and, to fill positions
 from any appropriate source under section 7106(a)(2)(C) of the Statute.
 Further, the Agency maintains that the provision is nonnegotiable under
 section 7117(a)(1) of the Statute because it conflicts with FPM chapter
 335, Subchapter 1-4, Requirement 4, by preventing management from using
 any appropriate source for selections.
 
    The Union argues that the disputed language constitutes a procedure
 and an appropriate arrangement within the meaning of sections 7106(b)(2)
 and (3) respectively and does not prevent the Agency from "acting at
 all." Further, the Union asserts that FPM chapter 335 permits an agency
 to reassign employees following a reassignment which is the result of a
 reduction in force (RIF).
 
                               B.  Analysis
 
    The disputed portions of Provision 5 would require that the Agency
 use attrition, to the extent feasible, to accomplish reductions in
 staffing prior to conducting a RIF.  In this regard, the provision is to
 the same effect as Proposals 1 and 2 in Congressional Research Employees
 Association and Library of Congress, Congressional Research Service, 25
 FLRA No. 21 (1987).  In that case, the Authority found that the language
 "to the extent that it is practicable" and "whenever possible" mandated
 that the agency exhaust other cost-saving methods, including attrition,
 before conducting a RIF and prevented the agency from exercising its
 section 7106(a)(2)(A) right to layoff employees without using
 alternative cost-saving measures first.  We also concluded that the
 cost-saving methods suggested in these proposals interfered with the
 management right to determine the personnel by which agency operations
 would be conducted under section 7106(a)(2)(B) of the Statute.  However,
 we found that the requirement that the agency utilize attrition and
 other cost-saving measures did not excessively interfere with
 management's exercise of its rights and thus constituted appropriate
 arrangements under section 7106(b)(3) for employees who would be
 adversely affected by a RIF.  /6/ Therefore, for the reasons set forth
 more fully in Congressional Research Service and the cases cited in that
 decision, we conclude that Provision 5 is negotiable as an appropriate
 arrangement under section 7106(b)(3).
 
    The Agency also asserts that the provision is nonnegotiable because
 it conflicts with a Government-wide regulation -- Requirement 4 of FPM
 chapter 335, which grants management the right to select from any
 appropriate source.  In this regard, the Agency interprets the provision
 as requiring management to fill vacancies by reassignment to avoid
 laying off employees.  However, there is nothing in the language of the
 provision which dictates that management must reassign employees to
 accomplish reductions.  Rather, the provision speaks specifically of
 utilizing attrition to avoid RIFs.  Moreover, the Union states that the
 provision was not intended to prevent management from hiring from
 sources other than employees who might be adversely affected by a RIF.
 Petition for Review at page 2.  In these circumstances, we conclude that
 the provision does not concern management's right to fill vacancies from
 any appropriate source and reject the Agency's argument that Provision 5
 is inconsistent with a Government-wide regulation.
 
                              C.  Conclusion
 
    Based on the reasoning and analysis above, we conclude that the
 disputed portions of Provision 5 are within the duty to bargain as
 appropriate arrangements to assist employees adversely affected by a
 RIF.
 
                             VI.  Provision 6
 
          Article 38K
 
          If, as a result of a reduction-in-force or a transfer of
       function, an employee is reassigned to a new position, he will be
       given a reasonable period of time to attain satisfactory
       performance.  If the employee cannot attain satisfactory
       performance, reasonable efforts will be made to make a new
       assignment at the same grade level.  (Only the underscored
       sentence is in dispute.)
 
                       A.  Positions of the Parties
 
    The Agency contends that the disputed sentence bars the exercise of
 management's right to hire, remove, demote, or reassign under section
 7106(a)(2)(A) of the Statute.  The Agency also maintains that the
 sentence is inconsistent with 5 U.S.C. Section 4302(b)(6) as it prevents
 management from taking action for unacceptable performance.  Finally,
 the Agency argues that the disputed sentence violates management's right
 to make selections under section 7106(a)(2)(C) of the Statute.
 
    The Union argues that the disputed sentence is both a procedure and
 appropriate arrangement within the meaning of sections 7106(b)(2) and
 (3), respectively.  Further, the Union states that an agency may
 reassign an employee who was reassigned during a RIF consistent with FPM
 chapter 351 and 5 U.S.C. Section 4303.
 
                               B.  Analysis
 
    We find that the disputed sentence in Provision 6 would require the
 Agency to reassign an employee who is unable to perform acceptably and
 who is occupying a position as a result of an earlier RIF or transfer of
 function.  While the phrase "reasonable efforts will be made" does not
 specifically require the Agency to reassign an employee whose
 performance is unacceptable, management's implementation of the
 provision would be mandatory rather than discretionary.  That is, the
 practical consequences of the second sentence would be that in nearly
 all instances where a vacancy existed for which an affected employee
 qualified, the Agency would be obligated to reassign the employee.  See
 National Federation of Federal Employees, Local 943 and Department of
 the Air Force, Headquarters Kessler Technical Training Center, Kessler
 Air Force Base, Mississippi, 19 FLRA 949, 951 (1985) (Proposal 2)
 (proposal requiring management to "assist" employees in finding
 assignments compatible with their medical condition held to require the
 reassignment of employees whenever possible).  See also American
 Federation of Government Employees, AFL-CIO, National Border Patrol
 Council and Department of Justice, Immigration and Naturalization
 Service, 16 FLRA 251, 252 (1984) (holding that the phrase "to the
 maximum extent possible" does not leave an agency discretion to exercise
 its rights to direct employees and assign work);  American Federation of
 Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank
 Board, New York District Office, 13 FLRA 446, 450-52 (1983) (holding
 that the phrase "to the extent practicable" places substantive
 limitation on agency's right to identify critical elements).
 
    Since our conclusion is that the Agency's implementation of the
 disputed sentence in Provision 6 would be mandatory, we find that the
 sentence is to the same effect as the proposal held to be nonnegotiable
 in National Labor Relations Board Union and National Labor Relations
 Board, Office of the General Counsel, 18 FLRA 320 (1985).  In that case,
 the proposal would have required the agency to reassign an employee in
 every instance prior to removing or reducing the employee in grade.  The
 Authority found that the proposal directly interfered with management's
 rights under section 7106(a)(2)(A) in situations in which an employee's
 performance was unacceptable and therefore the proposal did not
 constitute a procedure within the meaning of section 7106(b)(2) of the
 Statute.  In addition, the Authority determined that the proposal would
 not protect the needs of management to decide whether to fill vacancies
 or to determine what remedial actions were commensurate with a
 particular employee's performance deficiencies.  The Authority concluded
 that the proposal interfered with management's rights under section
 7106(a)(2)(A) to an excessive degree and therefore was not an
 appropriate arrangement under section 7106(b)(3).  In reaching this
 conclusion, the Authority stated that the proposal concerned employees
 who management had determined were unable or unwilling to perform the
 duties of their positions at an acceptable level.  Furthermore, it was
 noted that under 5 U.S.C. Section 4302(b)(6) an employee has an
 opportunity to demonstrate acceptable performance before action may be
 taken against that employee.  /7/ National Labor Relations Board at 324.
 
    The second sentence in Provision 6 in this case, like the proposal in
 National Labor Relations Board, directly interferes with management's
 right to remove or reduce in grade an employee whose performance is
 unacceptable.  Therefore, the second sentence in Provision 6 also does
 not constitute a negotiable procedure within the meaning of section
 7106(b)(2) of the Statute.  American Federation of Government Employees,
 Local 1923 v. FLRA, No. 86-1297, slip op. 7-8 (D.C. Cir. May 19, 1987)
 aff'g on other grounds American Federation of Government Employees,
 Local 1923, AFL-CIO and Department of Health and Human Services, Office
 of the Secretary, Headquarters, Office of the General Counsel, Social
 Security Division, 21 FLRA No. 28 (1986) (Proposal 6)).
 
    We turn now to whether the disputed sentence is an appropriate
 arrangement.  In this regard, the Union states that its intent in
 Provision 6 is to ameliorate the adverse affects of reassignments which
 occurred as a result of a RIF or transfer of function.  However, we note
 that under the disputed language the Agency would be unable to decide
 whether to fill vacancies as well as to determine its course of action
 if management decided that an employee's performance was unacceptable.
 Thus, like the proposal in National Labor Relations Board, we find that
 the second sentence of Provision 6 also excessively interferes with
 management's rights under section 7106(a)(2)(A).
 
                              C.  Conclusion
 
    We hold, based on the reasoning and analysis in National Labor
 Relations Board, that the disputed sentence in Provision 6 does not
 constitute a negotiable procedure under section 7106(b)(2) or an
 appropriate arrangement under section 7106(b)(3) and therefore is not
 within the duty to bargain.
 
                                VII.  Order
 
    The Agency must rescind its disapproval of Provisions 1, 2, 3, 4, 5,
 and 7 which were bargained on and agreed to by the parties at the local
 level.  /8/ The petition for review as to Provision 6 is dismissed.
 
    Issued, Washington, D.C., June 23, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Section 7121(d) of the Statute, in part, provides:
 
          An employee shall be deemed to have exercised his option under
       this subsection to raise the matter under either a statutory
       procedure or the negotiated procedure at such time as the employee
       timely initiates an action under the applicable statutory
       procedure or timely files a grievance in writing, in accordance
       with the provisions of the parties' negotiated procedure,
       whichever event occurs first.
 
    (2) 42 U.S.C. 2000e-16(b) provides:
 
          Except as otherwise provided in this subsection, the Equal
       Opportunity Commission shall have authority to enforce the
       provisions of subsection (a) of this section through appropriate
       remedies, including reinstatement or hiring of employees with or
       without back pay, as will effectuate the policies of this section,
       and shall issue such rules, regulations, orders and instructions
       as it deems necessary and appropriate to carry out its
       responsibilities under this section . . . .
 
    (3) 29 C.F.R. Section 1613.214 provides as follows:
 
          Section 1613.214 Filing and presentation of complaint.
 
          (a) Time limits.  (1) An agency shall require that a complaint
       be submitted in writing by the complainant or his representative
       and be signed by the complainant.  The complaint may be delivered
       in person or submitted by mail.  The Agency may accept the
       complaint for processing in accordance with this subpart only if
       --
 
          (i) The complainant brought to the attention of the Equal
       Employment Opportunity Counselor the matter causing him to believe
       he had been discriminated against within 30 calendar days of the
       date of that matter or, if a personnel action, within 30 calendar
       days of its effective date, and
 
          (ii) The complainant or his representative submitted his
       written complaint to an a