31:0181(22)NG - NTEU and Treasury and Customs Service -- 1988 FLRAdec NG



[ v31 p181 ]
31:0181(22)NG
The decision of the Authority follows:


 31 FLRA NO. 22
  31 FLRA 181

   22 FEB 1988

NATIONAL TREASURY EMPLOYEES UNION

                   Union

         and

DEPARTMENT OF THE TREASURY AND
U.S. CUSTOMS SERVICE

                   Agency

Case No. O-NG-1431

DECISION AND ORDER ON NEGOTIABILITY ISSUES

     I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor - Management Relations Statute (the Statute) and concerns
the negotiability of (1) five provisions of a collective
bargaining agreement which were disapproved by the Department of
the Treasury (Treasury) under section 7114 (c) of the Statute,
and (2) seven proposals which were declared nonnegotiable by the
U.S. Customs Service (Customs) during negotiations between
Customs and the Union. 1

     On July 24, 1987, Treasury disapproved certain provisions in
the agreement. Thereafter, by letter dated July 29, 1987, Customs
served on the Union a declaration of nonnegotiability with
respect to certain proposals that had been advanced in
negotiations. On July 31, 1987, Customs and the Union entered
into a memorandum of understanding amending certain sections in
the agreement. Following these changes, Treasury withdrew its
previous disapproval except as it pertained to seven provisions.
Subsequently, the Union timely filed the instant negotiability
appeal of the provisions disapproved by Treasury as well as the
proposals declared nonnegotiable by customs.

     For the reasons discussed below, we find that Provisions 1
and 2, which concern the reassignment of a Union officer or
steward, are nonnegotiable because they directly interfere with
management's rights to assign employees and to assign work under
section 7106(a)(2)(A) and (B) of the Statute, and are not
negotiable appropriate arrangements under section 7106(b)(3).
Provision 3, which concerns conflicts of interest involving an
employee's immediate family members, is outside the duty to
bargain because it is inconsistent with Executive Order 11222 and
its implementing regulations, 5 C.F.R. Part 735.

     As to Provision 4, which concerns an excepted service
employee's right to grieve a disciplinary action, we conclude
that it is within the duty to bargain because Congress did not
intend to exclude excepted service employees from coverage of
negotiated grievance procedures. Provision 5, which concerns the
Union's right to unit employees' names and home addresses, is
negotiable because the release of this information is not barred
by the Privacy Act.

     We further find that Proposal 1, which concerns part-time
work for employees returning from maternity leave, concerns a
negotiable procedure in connection with Customs' implementation
of its part-time program, pursuant to the Federal Employees Part
- Time Career Employment Act of 1978, 5 U.S.C. 3401 et seq., and
therefore is within the duty to bargain. Proposals 2 and 3, which
grant employees attending the Federal Law Enforcement Training
Center the option of living in Government housing or making their
own housing arrangements, do not conflict with Government-wide
rules or regulations, 5 U.S.C. 5911(e), or Comptroller General
decisions, and thus are within the duty to bargain.

     Proposal 4, which allows an employee to grieve a promotion
action, is within the duty to bargain because it is not barred
from negotiations by Federal Personnel Manual (FPM), chapter 335,
subchapter 1-6 or by section 7106(a)(2)(C) of the Statute.
Finally, we find that Proposals 5, 6, and 7, which require
management to pay travel and per diem to employee Union
representatives on official time, are within the duty to bargain
because they are not inconsistent with Federal law or
Government-wide regulations.

     II. Provisions Disapproved by Treasury - Under Section 7114
(c) of the Statute

     A. Provisions 1 and 2

     (Provision 1)

     Article 20, Section 15A

     In order to avoid any conflict of interest, or apparent
conflict of interest, no employee may be detailed or temporarily
promoted to a supervisory position while simultaneously serving
as a Union officer or steward. However, an eligible Union officer
or steward will be considered for such a detail and/or temporary
promotion, and, if selected, be offered the opportunity to
relinquish all Union responsibilities for the duration of the
detail and/or temporary promotion.

     (Provision 2)

     Article 33

     In order to avoid any conflict of interest, or apparent
conflict of interest, no steward, chief steward, or Union officer
may be detailed or temporarily promoted to a supervisory position
while simultaneously serving as a Union officer or steward.
However, an eligible Union officer or steward will be considered
for such a detail and/or temporary promotion, and, if selected,
be offered the opportunity to relinquish all Union
responsibilities for the duration of the detail and/or temporary
promotion.

     1. Positions of the Parties

     Treasury contends that Provisions 1 and 2 are outside the
duty to bargain because they interfere with management's rights
to assign employees and assign work under section 7106(a)(2)(A)
and (B) of the Statute. According to Treasury, by conditioning a
detail or temporary promotion of an employee on the employee's
voluntary relinquishment of all Union responsibilities, the
provisions would, in effect, subject management's
decision to the control of the employee and thereby interfere
with its right to assign employees and assign work under the
Statute.

     The Union asserts that the provisions are negotiable because
they do "nothing more than ensure the right of employees to
exercise their (section) 7102 rights." Union Response to Treasury
Statement of Position at 3. Citing Department of the Navy,
Norfolk Naval Shipyard, Portsmouth, Virginia, 15 FLRA  867
(1984), the Union contends that a balancing test must be applied
to an employee's rights under section 7102 and management's
rights under section 7106. Alternatively, the Union states that
the provisions are negotiable as an appropriate arrangement under
section 7106(b)(3).

     2. Discussion

     We find that Provisions 1 and 2 are outside the duty to
bargain because they directly interfere with management's right
to assign employees and to assign work under section
7106(a)(2)(A) and (B) of the Statute, and do not constitute
appropriate arrangements under section 7106(b)(3).

     a. Whether Provisions I and 2 Directly Interfere With
Management's Rights

     Provisions 1 and 2 would prevent management from detailing
or temporarily promoting an employee who is a Union officer or
steward to a supervisory position unless the employee voluntarily
relinquished all Union responsibilities. We agree with Treasury
that under the provisions, an employee who refused to relinquish
his or her Union responsibilities could effectively prevent
management from assigning supervisory responsibilities.
Management's right to assign an employee and to assign work would
be subject to the control of that employee.

     The provisions would prevent management from assigning an
employee to a temporary supervisory position or assigning
supervisory duties to the employee--even in cases where the Union
officer or steward may be the only qualified individual--unless
the employee agreed to relinquish his or her Union
responsibilities. The provisions are to the same effect as
Proposal 7 in 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). in
that case, the Authority held that the proposal, which would have
prohibited the agency from assigning certain duties to employees
who were also union officials unless the officials consented,
violated management's right to assign work under section
7106(a)(2)(B).

     Therefore, consistent with U.S. Marshals Service, we find
that Provisions 1 and 2 violate management's right to assign work
under section 7106(a)(2)(B). Similarly, we find that the
provisions would prohibit management from reassigning an employee
who was a Union officer or a steward to a temporary supervisory
position unless the employee consented. By so doing, the
provision would interfere with management's right to assign
employees under section 7106(a)(2)(A).

     b. Whether Provision 1 and 2 Constitute Appropriate
Arrangements Within the Meaning of Section 7106(b)(3)

     We turn now to the question of whether the provisions
constitute negotiable appropriate arrangements under section 7106
(b) (3) of the Statute. To determine whether the provisions
constitute appropriate arrangements, we must determine whether
the provisions are: (1) intended to be arrangements for employees
who are adversely affected by the exercise of a management right;
and (2) appropriate because they do not excessively interfere
with the exercise of management's right. National Association of
Government Employees, Local R14-87 and Kansas Army National
Guard, 21 FLRA  24 (1986).

     We find, based on the Union's explanations, that the
provisions are intended to be arrangements to (1) protect
employees from the loss of effective representation should
management decide to assign a Union officer or steward to a
temporary supervisory position or to assign work involving
supervisory duties, and (2) allow an employee to continue to
exercise his or her statutory right to participate in a labor
organization. We find also that the provisions excessively
interfere with the exercise of management's rights. The
provisions make no allowances for situations where the Union
officer or steward may be the only qualified employee to perform
the work, but rather give an employee a right to reject a
reassignment regardless of whether the employee is the only one
able to perform the assignment. Provisions 1 and 2,
therefore, do not take into account management's interest in
ensuring that the work of a supervisory position is accomplished.
Rather, the provisions would enable an employee who is a Union
officer or steward to veto an assignment. We find, therefore,
that the provisions excessively interfere with management's
rights to assign employees and to assign work and do not
constitute an appropriate arrangement within the meaning of
section 7106(b)(3).

     Based on the above, we find Provisions I and 2 to be outside
the duty to bargain.

     B. Provision 3

     Article 26 Section 5

     Employees may permit members of their family to engage in
any activity or employment they choose, so long as such activity
does not create a direct conflict of interest between such
activities and the employee's official Customs duties. For the
purpose of this Section, "immediate family" means the spouse,
child or any relative of the customs employee who is dependent
upon and/or who resides within the employee's household.

     1. Positions of the Parties

     Treasury contends that this provision is nonnegotiable
because it is contrary to law and Government-wide regulations
governing standards of conduct for Federal employees. In
particular, Treasury asserts that Provision 3 establishes a
standard for determining conflict of interest matters which is
inconsistent with the standard established by Executive Order
11222 and its implementing regulations, 5 C.F.R. 735.201a.

     The Union disagrees with Treasury's assertions, and argues
that the standard set forth in the provision is consistent with
the conflict of interest test established by the Merit Systems
Protection Board (MSPB) in Lane v. Department of the Army, 19
MSPR 161 (1984). 

     2. Discussion

     We find that Provision 3 is outside the duty to bargain
because it is inconsistent with law and Government-wide
regulations.

     Provision 3 would establish a direct conflict standard for
determining whether the employment or other activities of
immediate members of an employee's family create a conflict of
interest between the family member's activities and the
employee's official duties.

     Executive Order 11222 requires that Federal employees adhere
to certain standards of conduct. The implementing regulations of
the Office of Personnel Management (OPM) are set forth at 5
C.F.R. Part 735. Executive Order 11222, Section 201(c) and 5
C.F.R. 735.201a prohibit conduct by Federal employees which
creates either a direct conflict of interest or the appearance of
a conflict. Also, "(t)he interest of a spouse, minor child, or
other member of an employee's immediate household is considered
to be an interest of the employee." FPM, chapter 735, subchapter
4-7.

     The disputed provision would limit management's ability to
discipline an employee in conflict of interest situations to
circumstances in which it could demonstrate a direct relationship
between a family member's activities and the employee's official
duties. By limiting management's ability to discipline an
employee to a showing of direct conflict, the provision precludes
management from initiating action against an employee based on an
appearance of a conflict, an action which the Agency is
authorized to take pursuant to Executive Order 11222 and its
implementing regulations. The provision, therefore, is
inconsistent with Executive Order 11222 and its implementing
regulations, 5 C.F.R. Part 735, which are Government-wide
regulations. See Defense Logistics Agency, Council of AFGE
Locals, AFL - CIO and Department of Defense, Defense Logistics
Agency, 24 FLRA  367 (1986)

     The Union contends that in Lane v. Department of the Army,
the MSPB articulated the "direct and predictable" standard as the
only standard an agency may apply to sustain an action against an
employee based on an alleged conflict of interest involving a
family member. Union Reply to Treasury Statement of Position at
8. We disagree with this interpretation of Lane. In reaching its
conclusion in Lane, the MSPB reviewed the removal action under
both the direct  conflict standard and the "appearance"
standard. MSPB found that the record did not support a finding of
a direct conflict or of an apparent conflict of interest. Thus,
MSPB applied both standards for determining conflict of interest
as provided in Executive Order 11222 and its implementing
regulations. We therefore find, contrary to the Union's
assertion, that the Lane case does not support its position that
under law, only a direct conflict of interest standard applies to
conflict of interest cases involving immediate family members.

     We find, therefore, that Provision 3 is outside the duty to
bargain.

     C. Provision 4

     Article 30,  Section 14

     A. The provisions of this Article apply to employees
specifically covered by this Agreement who are in the competitive
service or the excepted service who are not serving a
probationary or trial period under an initial appointment or who
have completed one (1) year of current continuous employment
under other than a temporary appointment limited to one (1) year
or less; except that a non-preference eligible in the excepted
service may not exercise an option to appeal to the Merit Systems
Protection Board under Section 10 of this Article.

     B. The provisions do not apply to:

     (1) a suspension or removal in the interests of national
security initiated under Section 7532 of Title 5, United States
Code;

     (2) a reduction in force action under Article 12 of this
Agreement; or

     (3) a reduction in grade or removal based upon unacceptable
performance initiated under Article 29 of this Agreement. 

     I. Positions of the Parties

     Treasury Contends that to the extent that Provision 4
permits excepted service employees to grieve disciplinary
actions, it is nonnegotiable because it is contrary to "Chapter
75, Subchapter II of the Civil Service Reform Act" and 5 C.F.R.
752.401(b), a Government-wide regulation. Treasury Statement of
Position at 15. Treasury asserts that the provision is contrary
to chapter 75 because this chapter does not include excepted
service employees in the defined categories of employees who are
to be provided procedural protection against adverse actions.
Treasury also relies on Department of Justice v. FLRA,  709 F.2d
724 (D.C. Cir. 1983), where the court found nonnegotiable a
proposal to bring the termination of probationary employees
within the scope of the parties' negotiated grievance procedure.
Treasury requests the Authority to reconsider its decision in
National Treasury Employees Union and Department of Health and
Human Services, Region V, Chicago, Illinois, 25 FLRA  1110
(1987), petition for review filed sub nom. United States
Department of Health and Human Services v. FLRA,  No. 87-1595
(7th Cir. April 13, 1987), where the Authority found a proposal
which included excepted service employees within the coverage of
the parties' negotiated grievance procedure to be negotiable.

     The Union, relying on NTEU and RHS, disputes Treasury's
contentions and argues that the provision is within the duty to
bargain.

     2. Discussion

     Provision 4 would permit excepted service employees to
grieve adverse actions under the parties' negotiated grievance
procedure. This provision is to the same effect as the proposal
in NTEU and HHS. In that case, the Authority found negotiable a
proposal which would include excepted service employees within
the coverage of grievance, adverse action, and arbitration
articles of the parties' negotiated agreement. The Authority
considered the same arguments as those presented in this case and
found that Congress did not intend to exclude excepted service
employees from coverage of negotiated grievance procedures.

     We also note the Supreme Court's recent decision in United
States v. Fausto, 56 U.S.L.W. 4128 (U.S. Jan. 25, 1988) (No.
86-595), reversing 791 F.2d 1554 (Fed. Cir. 1986). The Court
found that the comprehensive nature of the Civil Service
Reform Act (CSRA) precluded nonpreference eligible excepted
service employees from seeking judicial review under the Tucker
Act, 28 U.S.C. 1191, based on the Back Pay Act. The Court did not
address the issue involved in NTEU and HHS and this case: the
right of excepted service employees to grieve disciplinary
actions under negotiated grievance procedures established under
section 7121 of Title VII of the CSRA. We therefore find that the
Court's decision in U.S. v. Fausto is not dispositive of the
issue raised by these cases, and we reaffirm our decision in NTEU
and HHS.

     We find nothing in the record which warrants a different
conclusion as to Provision 4 from that which the Authority
reached in NTEU and HHS. Consequently, for the reasons more fully
set forth in that case, we find Provision 4 to be within the duty
to bargain.

     D. Provision 5

     Article 34, Section 8.C

     The employer agrees to furnish to the Union, for its
internal use, and consistent with applicable law and regulation,
a list which will contain the names and home addresses of
bargaining unit employees. This list will be initially supplied
within one (1) month after the effective date of this Agreement.
The Employer agrees that such a list will be updated on a monthly
basis to reflect additions to the bargaining unit and changes in
present employee addresses.

     1. Positions of the Parties

     Treasury contends that the provision is nonnegotiable
because the disclosure of unit employees' names and home
addresses is prohibited by law, namely the Privacy Act of 1974.

     The Union states that Provision 5 is within the duty to
bargain because it is similar in effect to the proposal found
negotiable by the Authority in National Labor Relations Board
Union and National Labor Relations Board Office of the General
Counsel and the Board, 24 FLRA  917 (1986), petition for review
filed sub nom. National Labor Relations Board v. FLRA,  No.
87-1108 (D.C. Cir. Feb. 26, 1987). The Union also cites
Farmers Home Administration Finance Office, St. Louis Missouri,
23 FLRA  788 (1988) (Farmers Home), enforced in part and remanded
sub nom. U.S. Department of Agriculture and Farmers Home
Administration Finance Office, St. Louis Missouri v. FLRA,  No.
86-2579 (8th Cir. Jan. 15, 1988), petitions for rehearing
filed.

     2. Discussion

     Provision 5 would require the Agency to provide the union
with a list of the names and home addresses of bargaining unit
employees. The provision is similar in effect to the proposal
which the Authority found to be negotiable in Office of the
General Counsel and the Board. In that case, relying on Farmers
Home, the Authority stated that the release of the type of
information sought by the Union--the names and home addresses of
unit employees--was not barred by law and was related to a
union's ongoing representational responsibilities. Consequently,
the Authority concluded that the proposal was within the duty to
bargain.

     We therefore find, consistent with Office of the General
Counsel and the Board, that Provision 5 is within the duty to
bargain. See also National Federation of Federal Employees, Local
1655 and Adjutant General of Illinois, 24 FLRA  3 (1986); U.S.
Department of the Air Force, Scott Air Force Base, Illinois v.
FLRA,  Nos. 87-1143, 87-1272 (7th Cir. Jan. 27, 1988), affirming
Department of the Air Force, Scott Air Force Base, Illinois, 24
FLRA  226 (1986); Department of Health and Human Services, Social
Security Administration v. FLRA,  833 F.2d 1129 (4th Cir. 1987),
petition for rehearing filed Jan. 8, 1988, affirming Department
of Health and Human Services, Social Security Administration, 24
FLRA  543 (1986); Department of Health and Human Services, Social
Security Administration and Social Security Administration Field
Operations, New York Region, 24 FLRA  583 (1986); Department of
Health and Human Services, Social Security Administration, 24
FLRA  660-(1986). 

     III. Proposals Declared Nonnegotiable by Customs

     A. Proposal 1

     Article 13, Section 55C

     An employee returning from maternity leave may request to
work part time or to participate in a job-sharing program on a
temporary or permanent basis. The request will be made in writing
at least 45 days in advance of the employee's return. The
employer will consider such requests and make a determination
based on the employer's need for the employee's services,
suitability of the position for conversion to part time,
availability of resources and or impact on the efficiency of the
Service. After consideration of these factors, unless to do so
would have an adverse effect upon the efficiency of the service,
such requests will be granted. The employer will provide the
employee with a written decision within 30  days from the date of
the request. Thereafter, a grievance may be initiated at the Step
3 level as set forth in Article 31 Grievance Procedure.

     1. Positions of the Parties

     Customs contends that the proposal directly interferes with
management's right to assign work under section 7106(a)(2)(B) of
the Statute and is, therefore, outside the duty to bargain.
According to Customs, the proposal would prevent management from
denying an employee's request if it could not demonstrate
negative impact on the efficiency of the service. Customs also
claims that the proposal would limit management's ability to
require an employee to return to full-time status if needed,
since the decision to do so would be left to the discretion of
the employee. Customs further asserts that the proposal is not
within the duty to bargain because it involves the numbers,
types, and grades of employees under section 7106(b)(1) of the
Statute.

     The Union states that Proposal 1 is consistent with Agency
regulations as well as Government-wide rules and regulations
implementing part-time employment. The Union further asserts that
the proposal does not infringe on management's right to assign
work or to determine the  numbers, types, and grades of
employees. The union maintains that Proposal 1 constitutes a
negotiable procedure under section 7106(b)(2) of the Statute.

     2. Discussion

     Proposal 1 describes how employees returning from maternity
leave could request part-time employment or job sharing on a
temporary or permanent basis. The proposal would require Customs
to grant an employee's request to work part-time or in a job
sharing capacity unless to do so would have an adverse effect
upon the efficiency of the service.

     The Union asserts that the proposal would not infringe on
management's rights because the proposal specifically identifies
"suitability of the position for conversion to part-time" as one
of the criteria to be used by the Agency in granting the request.
Union Reply to Customs Statement of Position at 6. The Union
claims that its proposal "only requires the Agency to evaluate an
employee's request for part-time work and, if after evaluation it
determines the granting of part-time status meets the needs of
the Service, to grant the employee's request." Id. at 5.

     We find that Proposal 1 concerns a negotiable procedure to
be followed in connection with Customs' implementation of its
part-time employment program, pursuant to the Federal Employees
Part - Time Career Employment Act of 1978, 5 U.S.C. 3401 et seq.,
and, therefore, is within the duty to bargain under section
7106(b)(2) of the Statute. We find that the proposal does not
conflict with the Agency's right to assign work under section
7106(a)(2)(B) of the Statute and does not interfere with Customs'
right under section 7106(b)(1) to determine the numbers, types,
and grades of employees to perform part-time work.

     Considering the Union's explanation of how the proposal
would operate in conjunction with the wording of the second and
fourth sentences, in our view the proposal would not interfere
with management's right to assign work. The proposal specifically
allows management to take into consideration the need for the
employee's services when considering an employee's request. There
is no indication from the wording of the proposal that the phrase
"adverse effect upon the efficiency of the Service" is intended
to restrict management's control over deciding and defining what
the demands of its work require and the personnel needed to accomplish the work. The proposal clearly allows management
to consider the employee's request to work part-time or in a job
sharing capacity on the basis of the need for the employee's
services, availability of resources, and the impact on the
efficiency of the service. In view of this wording, we find that
the proposal would not prevent management from denying an
employee's request to work part-time or requiring an employee to
return to full-time work if management determined that the
assignment would have an adverse effect on the efficiency of the
service. We find, therefore, that the proposal does not interfere
with management's right to assign work. See, for example,
National Federation of Federal Employees and Department of the
Interior, Bureau of Land Management, 29 FLRA  1491, 1514 (1987),
petition for review filed sub nom. Department of the Interior,
Bureau of Land Management v. FLRA,  No. 87-1838 (D.C. Cir. Dec.
29, 1987). See also American Federation of Government Employees,
Local 2185 and Tooele, Army Depot, Tooele, Utah, 23 FLRA  193
(1986) (Proposal 3). Compare American Federation of Government
Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance
Corporation, Madison Region, 21 FLRA  870 (1986), where the
Authority found that Proposal 2 interfered with the right to
assign work because it precluded the agency from requiring an
employee to return to work at any point during a period of leave
for maternity reasons, even if the employee was able to do so and
the agency determined that it needed the employee's services.

     We now examine Customs' claim that the proposal is outside
the duty to bargain because it involves the numbers and types of
employees or positions needed to perform the Agency's work under
section 7106(b)(1). We find, contrary to Customs' argument, that
the proposal would not infringe on this right.

     We find that the proposal would not directly interfere with
management's right to determine the numbers and types of
employees or positions assigned to a work project, tour of duty,
or organizational unit under section 7106(b)(1). Management could
deny an employee's request if it determined that converting a
full-time position to part-time was not suitable. Nothing in the
proposal or the record suggests that management would be
obligated to convert certain positions to part-time if it
determined that to do so would make its staffing patterns
unacceptable. Therefore, the proposal would not infringe on the
Agency's discretion to determine whether to use part-time
employees; rather, it sets forth a procedure to be used
by the Agency in evaluating an employee's request for part-time
work. Compare National Treasury Employees Union and Department of
Health and Human services, Region X, 25 FLRA  1041 (1987), where
the Authority found that Proposal 6, which concerned the use of
part-time employees, was nonnegotiable under section 7106(b)(1)
because it forced the agency to make conversions when possible
despite the agency's judgment as to their desirability. The
proposal in that case, unlike the proposal here, did not take
into account the agency's need for the employee's services,
suitability of the position for conversion, or the impact of the
conversion on the efficiency of the agency.

     We find, therefore, that the proposal does not interfere
with management's right to determine the numbers, types, and
grades of employees or positions under section 7106(b)(1), and is
within the duty to bargain.

     B. Proposals 2 and 3

     Article 23

     (Proposal 2)

     Employees attending Glynco training center will not be
required to live on base or in government provided housing. Those
choosing to make their own housing arrangements will be
reimbursed an amount equivalent to that which Customs pays Glynco
per student for room and board. If requested, these funds will be
provided to the employee before his departure from his duty
station.

     (Proposal 3)

     Bargaining unit employees attending the Glynco training
center or traveling on official business for any other purpose
will not be required to share a room.

     1. Positions of the Parties

     Customs asserts that Proposals 2 and 3 are nonnegotiable
under section 7117(a)(1) of the Statute because they are
inconsistent with: (1) regulations governing the operation of the
Federal Law Enforcement Training Center  (FLETC), which
are Government-wide regulations; and (2) 5 U.S.C. 5911(e), which
regulates government housing for employees. Customs Statement of
Position at 3. According to Customs, FLETC's operational
directives, which contain on-site lodging policy for students
attending the training center, apply to a substantial segment of
the Federal work force, that is, to all agencies which use the
facility, and therefore constitute Government-wide rules or
regulations. Id. at 5. Customs states that 50 Federal agencies
use the FLETC, and that once an agency decides to use the
training center, it must comply with the center's directives.
Id.

     The Union states that the lodging requirement promulgated by
the FLETC director does not constitute a Government-wide rule or
regulation because the on-site policy was promulgated by the
director and not the Secretary of the Treasury. Union Response to
Customs Statement of Position at 7. The Union states that the
FLETC is an organizational entity within the Department of the
Treasury and, therefore, its director has no legal authority to
impose such a requirement. Finally, citing National Weather
Service Employees Organization, MEBA, AFL - CIO and Department of
Commerce, National Weather Service, National Oceanic and
Atmospheric Administration, 21 FLRA  590 (1986), the Union states
that Customs' argument concerning 5 U.S.C. 5911(e) is without
merit.

     2. Discussion

     Proposal 2 grants employees attending the FLETC the option
of living in Government-provided housing or making their own
housing arrangements. If employees elect to make their own
arrangements, the proposal would require Customs to reimburse
these employees an amount equal to what Customs would pay for
room and board if the employees stayed in Government-provided
housing. Proposal 3 provides that employees attending the FLETC
or traveling on official business for any other purpose would not
be required to share a room.

     a. Whether the Proposals are Inconsistent with a
Government-wide Rule or Rule or Regulation

     Customs contends that the proposals are outside the duty to
bargain because they conflict with a Government-wide rule or
regulation governing lodging at the FLETC. In National Treasury
Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA  748 (1980), the Authority
determined that he term "Government-wide regulation" was intended
to include regulations and official declarations of policy which
apply to the Federal civilian work force as a whole, although not
necessarily to every Federal employee.

     FLETC is an organizational entity within the Department of
the Treasury. The directive which Customs contends constitutes a
Government-wide rule or regulation was issued by the director of
the training center, governs only the internal operations of the
FLETC, and applies to Federal employees only insofar as they are
students at the facility. We conclude, contrary to Customs'
position, that the directive is not a Government-wide regulation
within the meaning of section 7117(a)(1). The directive applies
only to those Federal employees who attend the training center.
The directive is unlike the Department of State Standardized
Regulations (DSSRs) which the Authority found to be
Government-wide regulations in Overseas Education Association,
Inc. and Department of Defense, Office of Dependents Schools, 22
FLRA  351 (1986) (Proposal 2), affirmed sub non. Oversea
Education Association v. FLRA,  827 F.2d 814 (D.C. Cir. 1987).
The DSSRs are aplicable to all civilian Federal employees
travelling or working overseas on behalf of the Federal
Government, and are not limited in their application to employees
while located at one facility. Thus, tbey apply throughout the
Federal Government in a manner in which the directive does not.

     Based on the above analysis, we find that the directive at
issue here does not constitute a Government-wide rule or
regulation within the meaning of section 7117(a)(1).

     b. Whether the Proposals are Inconsistent with 5 U.S.C.
5911(e)

     Customs contends that the proposals are also outside the
duty to bargain because they conflict with 5 U.S.C. 5911(e),
which states that "the head of an agency may not require an
employee . . . to occupy quarters on a rental basis, unless the
agency head determines that necessary service cannot be rendered,
or that property of the Government cannot adequately be
protected, otherwise." Customs also contends that the proposal is
inconsistent with Comptroller General Decision B-177752 (May 17,
1973) (unpublished) and the cases cited therein. Customs,
arguments are similar to arguments considered and rejected by,
the Authority in National Weather Service, National Oceanic and
Atmospheric Administration, 21 FLRA  590 (1986). 

     In that case, the proposal allowed employees who were
students at the National Weather Service Training Center to
arrange for their own housing instead of being required to stay
in agency-arranged housing. The Authority found that 5 U.S.C.
5911(e) did not preclude negotiations on the proposal. The
Authority found that the proposal was not inconsistent with 5
U.S.C. 5911(e) because that provision did not mandate that
agencies require employees who are students to reside in
agency-contracted housing. Rather, the Authority found that under
5 U.S.C. 5911(e), the agency's decision concerning housing was a
matter within the discretion of the agency so that management
could agree to allow those employees to contract for their own
housing without violating law. Similarly, the Agency here would
not be precluded by 5 U.S.C. 5911(e) from agreeing to allow
employees who are students at the Glynco training center to
contract for their own housing while at the center.

     In the decision cited by Customs, the Comptroller General
found that, under 5 U.S.C. 5911(e), the agency had properly
denied payment of the housing expenses of an employee who had
stayed in a motel during his training rather than in
Government-provided housing. The denial of payment was proper,
the Comptroller General held, because the agency had determined
that the use of Government-provided housing was necessary for the
completion of the employee's training. The Comptroller General
stated that where that determination had been made, the payment
of housing expenses for housing obtained by the employee was
impermissible. The requirement for that determination, however,
does not preclude bargaining over the subject matter of the
determination. National Treasury Employees Union and Department
of the Treasury, U.S. Customs Service, 21 FLRA  6 (1986),
affirmed Department of the Treasury, W.S. Customs Service v. FLRA
No. 86-1198 (D.C. Cir. Jan. 19, 1988). We therefore find,
consistent with National Weather Service, National Oceanic and At
Administration, that the proposals here are not inconsistent with
5 U.S.C. 5911(e) or Comptroller General Decision B-177752.
Accordingly, the proposals are within the duty to bargain.

     c. Proposal 4

     Article 31, Section 4(A)(9)

     The following matters are specifically excluded from the
coverage of this Article:

     (9) Nonselection for promotion from a group of properly
ranked and certified candidates unless grievance involves an
alleged violation of Articles 3, 4, or 6.

     (Only the underlined portion of the proposal is in
dispute.)

     1. Positions of the Parties

     Customs contends that Proposal 4 is outside the duty to
bargain because it: (1) is inconsistent with the FPM, chapter
335, subchapter 1-6, a Government-wide rule and regulation; and
(2) interferes with management's right under section
7106(a)(2)(C) to choose among candidates from appropriate sources
in filling a vacancy.

     The Union merely arcgues that the proposal establishes an
employee's right to grieve a nonselection for promotion if the
employee alleges the nonselection was based on a violation of
employees' rights under section 7102 of the Statute, union rights
under section 7114, or a prohibited personnel practice under 5
U.S.C. 2302.

     2. Discussion

     Proposal 4 would allow an employee to grieve a promotion
action in matters involving an allegation of a violation of: (1)
an employee's section 7102 rights; (2) a prohibited personnel
practice under 5 U.S.C. 2302; or (3) union rights under section
7114.

     Customs argues that the FPM, chapter 335, subchapter 1-6
expressly states that "non-selection for promotion is not
grievable." Customs Statement of Position at 6. We find, contrary
to Customs' argument, that OPM regulations cannot limit the
statutorily prescribed scope of the negotiated grievance
procedure. Our finding is consistent with American Federation of
Government Employees, AFL - CIO, Local 2782 and Department of
Commerce, Bureau of the Census, Washington, D.C., 6 FLRA  314,
322 (1981). In that case, the Authority considered a similar
argument with respect to FPM chapter 335, subchapter 1-6, and
concluded that "OPM regulations . . . may not be applied in a
manner inconsistent with the scope of negotiated grievance
procedures allowed under section 7121 of the Statute." The
Authority noted that the list of matters excluded from the
coverage of the negotiated grievance procedures by
section 7121(c) of the statute did not include the nonselection
of a repromotion eligible. The Authority held that the Statute
and its relevant legislative history required that grievance
procedures negotiated under section 7121 cover all matters that
under the provisions of law could be submitted to the grievance
procedure unless the parties exclude them through bargaining.

     Our finding in this case is also consistent with the holding
of the U.S. Court of Appeals for the District of Columbia Circuit
in EEOC v FLRA,  744 F.2d 842, 851 (D.C. Cir. 1984), cert.
dismissed, 476 U.S. 19 (1986), wherein the court stated that
"(t)here is no indication in the (Statute) or elsewhere of a
congressional intent to allow agencies to limit by regulation the
statutorily defined grievance procedure." We conclude, therefore,
that FPM, chapter 335, subchapter 1-6 does not bar the proposal
from negotiations.

     We now consider Customs' contention that the proposal is
inconsistent with section 7106(a) (2) (C) of the Statute because
it would result in review by an arbitrator of management's
decision to make selections from appropriate sources. Consistent
with our decision in Newark Air Force Station and American
Federation of Government Employees, Local 2221, 30  FLRA  616,
636 (1987), we reject customs' contention. In that case, we
concluded that arbitral review of a management action to
determine whether the action complied with law or regulation is
consistent with congressional intent concerning the functions
which arbitrators perform under the Statute. Although Newark Air
Force Station involved exceptions to an arbitrator's award, he
same principle applies to the negotiability of a proposal which
seeks to ensure that management will exercise its section 7106
rights consistent with law. In determining whether an employee
has not been selected for a position for reasons which are
inconsistent with sections 7102 and 7114 of the Statute or 5
U.S.C. 2302, an arbitrator would be determining whether the
nonselection of the employee complied with law. See also General
Services Administration and American Federation of Government
Employees, AFL - CIO National Council 236, 27 FLRA  3, 7-8
(1987).

     The Authority has held that the award of an arbitrator in a
case involving a disputed selection action does not violate
management's right under the Statute to make selections for
promotion where the arbitrator finds a direct connection between
improper agency action and the failure to select a
specific employee for promotion. U.S. Naval Ordnance Station,
Louisville, Kentucky and International Association of Machinists
and Aerospace Workers, Local Lodge 830, 22 FLRA  382 (1986).
Specifically, to order the selection of a particular employee for
a promotion, an arbitrator must reconstruct what the responsible
selecting official would have done if the unwarranted agency
actions had not occurred and must find on the basis of that
reconstruction that the responsible selecting official would have
selected the grievant but for the unwarranted actions. Id. Where
the arbitrator does not reconstruct the selection action, the
arbitrator may order the agency to rerun or reconstruct the
selection action as a remedy. See Local R-1-185, National
Association of Government Employees and the Adjutant General of
the state of Connecticut, 25 FLRA  509 (1987). However, the
Authority has also held that the incumbent employee in these
cases is entitled to be retained in the position pending
corrective action unless it is specifically determined that the
incumbent could not originally have been properly selected under
law and regulation and the parties' collective bargaining
agreement. See, for example, American Federation of Government
Employees, Local 1546 and Sharpe Army Depot, Department of the
Army, Lathrop, California, 16 FLRA  1122 (1984).

     There is nothing in the proposal or in the record in this
case which indicates that in reviewing a selection action claimed
to violate the parties' contract, an arbitrator would be
empowered to act in any manner that is inconsistent with
applicable law. Thus, under this proposal Customs retains its
right to make selections. We therefore conclude that Customs has
not sustained its contention that this proposal violates section
7106(a)(2)(C) of the Statute.

     We find that Proposal 4 does not directly interfere with
management's right under section 7106(a)(2)(C) to make selections
to fill positions and, therefore, that it is within the duty to
bargain.

     D. Proposals 5, 6, and 7

     (Proposal 5)

     Article 21

     The union will be represented by up to six (6) bargaining
unit employees plus National staff members. Bargaining unit
employees  participating in these negotiations will be
granted official time necessary to travel to and participate in
all aspects of the negotiation process. In addition, bargaining
unit employees shall receive necessary travel and per diem
expenses.

     (Proposal 6)

     Article 31

     During the negotiations of the National Agreement between
the U.S. Customs Service and the National Treasury Employees
Union, each party had the opportunity to discuss and negotiate
Article 31, Grievance Procedure. As a result of those
discussions, the parties have agreed to form a joint working
group, consisting of an equal number of Employer and Union
representatives, to identify the existing problems concerning the
administration of the third step of the grievance procedure. The
committee will make recommendations to the Deputy Commissioner of
Customs to resolve the identified problems. Union representatives
shall receive necessary travel and per diem expenses incurred
while participating on this joint working group.

     (Proposal 7)

     Article 37, Section 7(4)

     Where negotiating meetings are required, the meetings will
be conducted as follows:

     (4) An employee representing the Union in negotiations on
official time under this Article shall be entitled to
reimbursement for travel and per diem expenses if otherwise
eligible under applicable law and regulations.

     (Only the underlined sentences are in dispute.) 

     1. Positions of the Parties

     Customs contends that Proposals 5, 6, and 7 are
nonnegotiable because they violate the Travel Expense Act, 5
U.S.C. 5701 et seq. and its implementing regulations, the Federal
Travel Regulations. Customs requested the Authority to stay this
case until the court issued its decision in Department of the
Treasury, U.S. Customs Service v. FLRA,  No. 86-1198 (D.C. Cir.
Jan. 19, 1988).

     Citing the Authority's decision in National Treasury
Employees Union and Department of the Treasury, U.S. Customs
Service, 21 FLRA  6 (1986) (Customs), the Union contends that its
proposals requiring Customs to pay travel and per cdiem expenses
for employees engaged in labor relations activity are within the
duty to bargain. The Union also states that its proposals are to
be applied "in accordance with (G)overnment-wide rules and
regulations." Union Petition for Review at 9.

     2. Discussion

     Proposals 5, 6, and 7 would require Customs to pay travel
and per diem to employee Union representatives on official time
while engaged in labor relations activities. In Customs, the
Authority rejected arguments similar to those in this case and
determined that a proposal which required the payment of travel
and per diem for union officials on official time was not
inconsistent with Federal law or Government-wide regulations. The
Authority found that agencies have discretion under the Travel
Expense Act to determine whether and under what circumstances
travel attendant to labor-management relations activities is
sufficiently within the interest of the United States so as to
constitute official business and, hence, to pay for resulting
appropriate expenses from Federal funds. The Authority further
found that the exercise of that discretion is subject to the
negotiation process.

     In Department of the Treasury, U.S. Customs Service v. FLRA,
No. 86-1198 (D.C. Cir. Jan. 19, 1988), the Court of Appeals for
the District of Columbia Circuit enforced the Authority's
decision in Customs. The court concluded that the Authority
"correctly decided that there is a large measure of discretion in
the determination of an agency's convenience and the government's
primary interest (under the Travel Expense Act), and that the
(A)gency . . . must bargain as to its exercise of that
discretion." Slip op. at 10.

     Consistent with our decision in Customs, therefore, we find
that Proposals 5, 6, and 7 are within the duty to bargain.

     IV. Order

     The petition for review is dismissed as to Provisions 1, 2,
and 3. The Department of Treasury must rescind its disapproval of
Provisions 4 and 5. The U.S. Customs Service must upon request,
or as otherwise agreed to by the parties, bargain concerning
Proposals 1-7. 2

     Issued, Washington, D.C., February 22, 1988.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS 

FOOTNOTES

     Footnote 1 The Union withdrew its appeal as to Article 16,
Section 14A and Article 24, Section 7(b). Union Response to
Treasury, Statement of Position at 1-2. These provisions will no