32:0643(94)NG - - Bremerton MTC and Naval Supply Center Puget Sound - - 1988 FLRAdec NG - - v32 p643



[ v32 p643 ]
32:0643(94)NG
The decision of the Authority follows:


32 FLRA No. 94

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

BREMERTON METAL TRADES COUNCIL
Union

and 

NAVAL SUPPLY CENTER PUGET SOUND
Agency

Case No. 0-NG-1485

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). It concerns the negotiability of 8 provisions of a negotiated agreement which were disapproved by the Agency head in the course of review under section 7114(c) of the Statute.(1) Provision 1 limits the number of consecutive workdays that an employee can be required to work. Provision 2 involves limited duty assignments due to work injury or illness. Provision 3 pertains to the membership of rating and ranking panels. Provision 4 designates the selecting official for promotion actions. Provision 5 provides that only information contained in official folders or files may be used in disciplinary actions. Provision 6 requires reassignments or transfers to avoid or minimize the effects of a reduction-in-force (RIF). Provision 7 requires reassignments and training for employees who lose their jobs due to automation or technological change. Provision 8 permits probationary employees to challenge procedural matters relating to termination through the negotiated grievance procedure.

For the reasons which follow, we find that Provisions 1 and 2 are nonnegotiable because they interfere with the right to assign work under section 7106(a)(2)(B). Provision 3 is nonnegotiable because it interferes with the right to assign work under section 7106(a)(2)(B) and with the right to select under section 7106(a)(2)(C). Provision 4 is nonnegotiable because it interferes with the right to assign work under section 7106(a)(2)(B). Provision 5 is nonnegotiable because it interferes with the right to discipline under section 7106(a)(2)(A). Provision 6 is nonnegotiable because it interferes with the rights (1) to assign employees under section 7106(a)(2)(A); (2) to assign work under section 7106(a)(2)(B); and (3) to select employees under section 7106(a)(2)(C). Provision 7 is negotiable because it is an appropriate arrangement under section 7106(b)(3). Provision 8 is nonnegotiable under section 7117(a)(1) because it violates applicable law.

II. Procedural Matter

The Union contends that the Agency head's disapproval of the agreement under section 7114(c) was untimely. Section 7114(c) provides that an agency head must either approve or disapprove an executed agreement within 30 days from the date the agreement was executed. The Union contends that the agreement was executed by the parties on September 25, 1987, and relies on a copy of an annotated page from a calendar or diary in support of this contention. Therefore, the Union asserts that since the Agency head's disapproval of eight agreement provisions was dated November 3, 1987, the Agency head disapproved the agreement beyond the prescribed 30-day time limit.

We find, however, that the Agency head disapproved the agreement within the 30-day time limit imposed by section 7114(c). Although the Union claims that the agreement was signed on September 25, 1987, the signature page of the parties' negotiated agreement submitted by the Union is dated October 6, 1987. The Union offers no explanation for the discrepancy between the date it alleges the agreement was executed and the date affixed to the signature page of the agreement. Therefore, we must accept the date actually appearing on the agreement as the better evidence of the execution date. When calculated from the date on the agreement, October 6, 1987, the Agency head's disapproval, dated November 3, 1987, is timely.

III. Provision 1

Article 9, Section 5. The employer agrees not to work an employee over thirteen (13) consecutive days, except in cases of unforeseen emergencies or circumstances in which case the union will be notified.

A. Positions of the Parties

The Agency contends that Provision 1 interferes with its rights under section 7106(a)(1) and (a)(2)(B) of the Statute to determine its mission and to assign work. The Agency argues that its mission involves providing logistical support to operational commands. According to the Agency, the needs of the operating forces cannot always be foreseen, thereby creating the need for extensive overtime. Thus, the Agency claims that accomplishment of its mission would be impaired if it could alter employees' work schedules only to meet heavy workloads in the situations prescribed by the provision. Further, the Agency argues that by preventing the revision of employee work schedules to accommodate workload requirements, the provision interferes with the Agency's right to assign work.

The Union asserts that the term "unforeseen emergencies or circumstances" used in the provision authorizes the Agency to assign work to an employee for more than 13 consecutive days when required. The Union contends that the provision is consistent with the language in 5 C.F.R. Part 610 and does not prevent assignments longer than 13 consecutive days; it merely requires a "basis" for such assignments. According to the Union, if management needs to make such assignments, management may "invoke" the "emergencies" or "circumstances" bases. Reply Brief at 2.

B. Analysis and Conclusion

Proposals which limit the number of consecutive days an employee can be required to work are nonnegotiable. Such a limitation interferes with management's ability to meet work needs and to assign employees with particular skills to work when their skills are needed. A limitation on the number of consecutive days an employee works is inconsistent with management's right to determine when and by whom work would be performed. Such proposals directly interfere with the agency's right under section 7106(a)(2)(B) of the Statute to assign work. See, for example, Illinois Nurses' Association and Veterans Administration Medical Center, Hines, Illinois, 28 FLRA 212, 225 (1987) (Proposal 5, section 5), (VA Medical Center, Hines), petition for review filed as to other matters sub nom. Veterans Administration Medical Center, Hines, Illinois v. FLRA, No. 87-1514 (D.C. Cir. Sept. 23, 1987).

Provision 1 in this case imposes a similar limitation on the Agency's authority to assign work. The provision prevents the Agency from assigning work to employees who have worked the 13 previous days unless the assignments are attributable to unforeseen emergencies or circumstances. Under the terms of the provision, the Agency would be unable to formulate employee schedules to accommodate unusually heavy workloads if it knew beforehand that timely accomplishment of the work would require employees to work in excess of 13 consecutive days. Thus, the provision inhibits the Agency's ability to determine when work will be performed. Compare Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 136-39 (1988) (Provisions 5 and 6), reconsideration denied, 32 FLRA 98 (1988) (Provisions 5 and 6 constituted procedures for assigning overtime because the provisions applied after the Agency had exercised its right to assign overtime work and did not eliminate management's discretion to assign overtime work to particular employees or groups of employees). Therefore, by imposing conditions on the Agency's ability to make work assignments, Provision 1 interferes with the right to assign work and is nonnegotiable.

Because we find that Provision 1 directly interferes with the right to assign work, it is unnecessary to address the Agency's argument that the provision interferes with its right to determine its mission.

IV. Provision 2

Article 12, Section 5. When an employee is assigned a temporary medical limitation because of a work related injury or illness, the Employer will make every effort to place the employee on a job, within prescribed restrictions. The employee may request to use sick leave, annual leave if available or leave without pay. For work connected illnesses or injuries, the employee may apply for injury compensation as provided by laws. [The underlined part of the provision is in dispute.]

A. Positions of the Parties

The Agency asserts that Provision 2 interferes with its rights under section 7106(a)(2)(A) and (B) of the Statute to assign employees and to assign work. The Agency contends that the disputed sentence prevents management from assigning duties claimed by the employee to conflict "for any reason and to any extent with limitations imposed by a medical authority." Statement of Position at 3.

In addressing the Union's argument that the disputed language is similar to that contained in an Agency instruction, the Agency contends that the instruction itself is the exercise of a management right and inclusion of its language in the provision would constitute an independent limitation on that right. The Agency also characterizes as "clearly inaccurate" the Union's contention that failure to include the language in the agreement would result in less protection for unit employees. Statement of Position at 3.

The Union asserts that the disputed language is contained in an Agency instruction. Deletion of that language from the agreement, the Union contends, would deny unit employees rights granted to other Agency employees.

B. Analysis and Conclusion

We reexamined the relationship between management's right to assign work under section 7106(a)(2)(B) and employees' safety and health in American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105, 1119 (1988) (Provision 6) (NAS, Oceana). We stated that we would examine proposals requiring management to assign, or to refrain from assigning, certain duties for safety and health reasons to determine whether the proposals: (1) require management to adhere to restrictions on work assignments imposed by the agency's own medical authorities, or (2) impose restrictions independent of and/or inconsistent with those of the agency's medical authorities. We stated that proposals requiring that work be assigned in a manner consistent with restrictions imposed by the agency's medical authorities would constitute negotiable procedures under section 7106(b)(2). However, proposals restricting the assignment of work on grounds independent of and/or in conflict with those of the agency's own medical authorities would violate management's right to assign work under section 7106(a)(2)(B).

We now apply the principles contained in NAS, Oceana to Provision 2 in this case. The provision is operative when an employee "is assigned a temporary medical limitation." The provision, however, does not specify who assigned the "medical limitation." In the absence of any such elaboration, we find that the provision would require management to follow limitations established by medical authorities other than the Agency's own. Therefore, the provision would impose restrictions on the assignment of work independent of any which might be imposed by Agency medical officials. Consequently, the provision interferes with management's right to assign work under section 7106(a)(2)(B). See also National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360, 376-77 (1988) (Proposal 4, Section 8), (Veterans Administration), petition for review filed sub nom. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. Apr. 22, 1988).

Finally, we reject the Union's suggestion that Provision 2 is negotiable because the provision's wording is consistent with a local instruction. Even if this provision simply restates an existing local instruction, as claimed by the Union, it nonetheless interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Including the provision in the parties' agreement would prevent the Agency from assigning duties in a manner inconsistent with the wording of the provision during the life of that agreement. See 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 102, 105 (1987) (Provision 2) (Redstone Arsenal).

For the reasons stated, Provision 2 is nonnegotiable.

V. Provision 3

Article 14, Subsection 7b. When a panel is used to rate bargaining unit members for unit positions, no member of the panel will be in direct line of supervision over another panel member. Neither will any panel member be the selecting official over the position for which applicants are rated. The Unions will be afforded an opportunity to be present at all such panel meetings.

A. Positions of the Parties

The Agency contends that the provision's requirement that certain categories of persons be excluded from the rating panels interferes with management's rights to assign work and to determine the personnel by which Agency operations are conducted under section 7106(a)(2)(B) of the Statute. The Agency argues further that the requirement that a Union observer be present during the rating process impedes management's ability to decide and act with respect to its right to select from among properly ranked and certified candidates or from any other appropriate source under section 7106(a)(2)(C).

The Union asserts that Provision 3 is consistent with a local instruction prescribing the composition of rating panels. The Union contends that rating panels are not part of the selection process. According to the Union, such panels constitute the initial phase of rating and ranking, a mechanical process used by the Civilian Personnel Office. The Union also states that its observer is "relegated to the role of observer in the same manner as an EEO Representative." Reply Brief at 2.

B. Analysis and Conclusion

The Union contends that the panel in question is not part of the selection process, but rather concerns the "mechanical" initial phase of rating and ranking. The Agency, however, argues that the panel is involved in the rating of applicants for positions, "a deliberative process that requires the exercise of judgment and is an integral part of management's decision-making processes." Statement of Position at 4. The Union's reply brief made no reference to the Agency's description of the panel. Accordingly, we accept the Agency's characterization of the panel as an integral part of the process of selecting candidates to fill vacant positions.

The management rights enumerated in section 7106 of the Statute include more than the right to decide to take the final actions specified. The exercise of these rights also encompasses the right to take preliminary actions leading to the exercise of the right, including discussion and deliberation concerning the decision to exercise the right. See National Treasury Employees Union and Department of Health and Human Services, Region V, Chicago, Illinois, 28 FLRA 647, 647-49 (1987) (Health and Human Services, Region V) and the cases cited therein.

Union participation in a committee's work involving deliberations regarding the exercise of management rights interferes with the exercise of the underlying management rights by allowing the union to interject itself into the deliberative process. See American Federation of Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640, 643-45 (1985) (Provision 3) (union participation on promotion rating panel interferes with management's right to select); and National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982) (union representation on Professional Standards Board and Position Management Committee interferes with management rights under section 7106 of the Statute). Further, when a committee's work involves deliberations over the exercise of management rights, a union observer's presence, whether in an active or passive role, interferes with an agency's right to engage freely in internal discussions and deliberation prior to deciding to act pursuant to section 7106 of the Statute. See, for example, Health and Human Services, Region V, 28 FLRA at 648-49.

Provision 3 authorizes the Union's presence on a rating and ranking panel when that panel rates unit employees for unit positions. Provision 3 thereby allows the Union to interject itself into the deliberative process by which the Agency selects an employee for promotion under section 7106(a)(2)(C). Thus, Provision 3 is nonnegotiable because it interferes with the Agency's right to select under section 7106(a)(2)(C) of the Statute.

Additionally, Provision 3 seeks to bar certain categories of management officials from participating in the rating and ranking panel's work. The provision prohibits the selection of any person who supervises another panel member and disqualifies the selecting official from serving on the panel.

In National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422, 423-24 (1987) (Financial Management Service), we reviewed a provision similar in effect to Provision 3. Provision 2 in Financial Management Service concerned the composition of merit staffing panels which advise selecting officials by rating and ranking candidates for selection for promotion. The disputed provision, among other things, required that the agency select panelists from organizational elements other than those supervised by the selecting official. It also prohibited the selection of Union officers or stewards or any employee at a lower grade than the position to be filled.

In deciding the negotiability issue, we first noted that panel appointees were performing work for the agency and that their selection involved the assigning of work under section 7106(a)(2)(B) of the Statute. Based on that view of the relationship between the panel's composition and the exercise of the identified management right, we concluded that the disputed provision, by prohibiting the assignment of work--that is, membership on the panel--to certain employees, was nonnegotiable because it interfered with the section 7106(a)(2)(B) right to assign work.

Similarly, Provision 3 concerns a group established by management to carry out portions of the process of identifying candidates to fill vacancies. Because Provision 3 would prevent management from selecting specified persons as members of that group, Provision 3, like Provision 2 in Financial Management Service, is also nonnegotiable because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Like Provision 2, the Union's suggestion that the wording of Provision 3 is consistent with a local instruction governing the composition of such panels does not lead us to conclude that Provision 3 is negotiable. Management rights are involved in determining both the membership of the panel and the functions carried out by the panel. Even if this provision simply restates an existing local instruction, as claimed by the Union, it nonetheless interferes with management's rights under section 7106(a)(2)(B) and (C) of the Statute. Including the provision in the parties' agreement would prevent the Agency from changing either the composition or the function of the panel during the life of that agreement. See Redstone Arsenal at 105.

Provision 3 is, therefore, nonnegotiable.

VI. Provision 4

Article 14, Subsection 9d. The selecting official will be the first-line supervisor unless otherwise designated by the Department Director.

A. Positions of the Parties

The Agency asserts that Provision 4 interferes with its right under section 7106(a)(2)(B) to assign work by designating the selecting official in promotion actions and by identifying the official authorized to make exceptions to the selecting official requirement.

The Union points out that Provision 4 duplicates a published local instruction.

B. Analysis and Conclusion

The designation of a particular management official to perform specified tasks is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, Veterans Administration, 31 FLRA at 366 (Proposal 2, Section 2).

The first clause of Provision 4 designates the official the parties might normally expect to make a selection for promotion. Further, the provision permits management to designate another selecting official should it choose to do so. However, by assigning to the Department Director the authority to designate as selecting official someone other than the immediate supervisor, the provision interferes with management's right to assign work under section 7106(a)(2)(B) and is outside the Agency's duty to bargain. Compare Veterans Administration, 31 FLRA at 379 (Proposal 5, Section 2) (Section 2 permitted named official or designee to perform specified action found to be negotiable). We note, however, that the defect in this provision could be cured by removing the reference to the Department Director. See Redstone Arsenal at 81.

We also reject the Union's argument that the provision is negotiable because it employs the same wording as a local regulation. Including this provision in the parties' agreement would prevent the Agency from assigning to an official other than the District Director the authority to designate the selecting official during the life of that agreement. See Redstone Arsenal at 105.

VII. Provision 5

Article 17, Section 5. In the case of any formal written disciplinary action, nothing contained in any other than an official folder or files may be used to substantiate the action. Individual supervisory files, maintained with the employee's knowledge of the file and its contents, may also be used to substantiate such action. All documents on which the decision to take disciplinary action is based will be made available to employees and, if the employee requests, to his/her representative. [The underlined portion of the provision is in dispute.]

A. Positions of the Parties

The Agency contends that Provision 5 interferes with its right to discipline under section 7106(a)(2)(A) of the Statute, by barring the use of all appropriate sources of information in taking disciplinary actions.

The Union asserts that the provision's wording was "taken from" a local and an Agency instruction. Reply Brief at 2. It also contends that the provision does not prevent management from taking disciplinary action. Rather, according to the Union, the provision outlines a method to be used in documenting a disciplinary action.

B. Analysis and Conclusion

We find that this provision would limit management's right to discipline employees under section 7106(a)(2)(A). This provision does not concern an employee's right to review information used to support a disciplinary action. See, for example, 5 C.F.R. ºº 752.203(b) and 752.404(b). Rather, the provision would deny management the use of all appropriate sources of information to support a disciplinary action. For example, under this provision, information contained in individual supervisory files could not be used even if that information was subject to review by an employee or his/her representative. Further, tangible evidence which could not be filed in an official folder or file could not be used to substantiate a disciplinary action. Consequently, by limiting the source of information used to substantiate a disciplinary action against an employee, Provision 5 directly interferes with management's right to take disciplinary actions against employees under section 7106(a)(2)(A). For the reasons discussed in connection with Provisions 2, 3 and 4, we reject the Union's argument that Provision 5 is negotiable because it is "taken from" an Agency instruction.

VIII.Provision 6

Article 21, Section 1. The employer agrees to make a reasonable effort to avoid or minimize a reduction in force through reassignment or transfer of employees to available vacancies for which they are qualified or for which they can be trained within a reasonable period in consonance with the level of the position to be filled.

A. Positions of the Parties

The Agency asserts that Provision 6 is nonnegotiable because it interferes with the rights to assign work and to select from any appropriate source under section 7106(a)(2) (B) and (C) of the Statute.

The Union contends that the provision conforms to Office of Personnel Management (OPM) regulations prescribing measures to be taken to avoid or minimize the effect of a reduction-in-force (RIF) prior to seeking OPM's approval to conduct a RIF.

B. Analysis and Conclusion

1. Provision 6 Conflicts with Management's Rights to Assign Employees, to Assign Work and to Select Employees

Provision 6 requires the Agency to exert "a reasonable effort" to fill available vacancies from a single source, specifically from among current employees who are qualified or could be trained "within a reasonable period" to fill the positions. By providing for filling positions by reassignment or transfer, Provision 6 directly interferes with management's right, in filling vacancies, to select from any appropriate source under section 7106(a)(2)(C)(ii) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 2635 and Naval Communications Unit Cutler, East Machias, Maine, 30 FLRA 41, 42-45 (1987) (Provision 1) (Naval Communications Unit Cutler).

Additionally, we find that the disputed provision interferes with management's right to assign employees to positions under section 7106(a)(2)(A) because it would require that management reassign particular employees to vacancies. Under the provision's terms, management would be unable, for example, to fill vacancies with internal candidates from organizational elements unaffected by a reduction-in-force (RIF). Consequently the provision would limit the field of employees eligible for assignment to vacancies and would directly interfere with the right to assign employees. See American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Immigration and Naturalization Service, 27 FLRA 467, 480-81 (1987) (Provision 6).

Further, proposals which require an agency to provide training for its employees violate management's right to assign work under section 7106(a)(2)(B). Since Provision 6 requires the Agency to train employees so that they can fill vacancies, the provision directly interferes with management's right to assign work under section 7106(a)(2)(B). See, for example, NAS, Oceana, 30 FLRA 1105, 1114-16 (Provision 4).

The use of the phrase "a reasonable effort" does not limit the effect of the provision. Decisions as to whether the Agency had made a reasonable effort would, if challenged by the Union, be subject to arbitral review. Therefore, the provision constitutes a substantive interference with and conflicts with the cited management rights involved in the filling of vacancies. See, for example, NAS, Oceana at 1113.

2. The Provision Does Not Constitute a Negotiable Appropriate Arrangement

The Union did not assert that Provision 6 should be considered as a proposal to assist employees adversely affected by management action. However, the Authority consistently has considered proposals relating to the effect of a RIF on employees under section 7106(b)(3) because the adverse effect of a RIF on employees is clear. See, for example, International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 354-60 (1988) (Provisions 3 and 4) (U.S. Army Engineer District, Nashville).

In our view, Provision 6 is intended as an arrangement to ameliorate the adverse effects--demotion or release from employment--on employees resulting from management's exercise of its right to conduct a RIF. Proposals requiring an agency to provide training to employees in the context of a RIF have been found to constitute negotiable appropriate arrangements under section 7106(b)(3) where those proposals preserved management's discretion to determine whether employees would be trained, the extent and type of training, the numbers of employees to be trained given available funding and training authority, and the methods and means by which the training would be accomplished. See, 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 113, 140 (1987) (Provision 32). Although the precise wording of Provision 6 does not state the safeguards as set forth in Provision 32 in Bureau of Engraving and Printing, there is nothing in the record which indicates that this provision is not also intended to preserve management's discretion as in Bureau of Engraving and Printing. See also Naval Communications Unit Cutler, 30 FLRA at 45.

Nevertheless, we find that Provision 6 does not constitute a negotiable appropriate arrangement under section 7106(b)(3). The Union's explanation and the wording of the proposal are silent as to whether management would retain authority to decide to fill or not fill vacancies. In fact, the record indicates that management would not retain that right. The Agency argues that the provision does not permit management to decide not to fill a vacancy. The Union did not rebut that crucial argument in its reply brief. Moreover, the Union did not elaborate on the meaning of adjective "available" as it related to vacancies, and that adjective, standing alone, is not a basis for finding that the vacancies involved would only be those management decided to fill. Therefore, based on the record, we find that the vacancies referred to in the provision would be any vacancies in the bargaining unit irrespective of whether the Agency decided to fill them.

We have reviewed proposals requiring management to fill vacancies with qualified employees in surplus positions. Where these proposals took effect without regard to whether management had decided to fill the vacancies, we have found that the harm to management outweighed the benefit to employees and, consequently, interfered with management's rights. See, for example, U.S. Army Engineer District, Nashville, 32 FLRA 347, 354-60 (1988) (Provisions 3 and 4).

Because Provision 6 does not preserve management's discretion to determine whether to fill vacancies we find that the provision excessively interferes with the Agency's rights to assign employees under section 7106(a)(2)(A) and to make selections for appointments under section 7106(a)(2)(C) and is not an appropriate arrangement under section 7106(b)(3). See also National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA 905, 908 (1986) (Proposal 2).

IX. Provision 7

Article 21, Section 3. It is agreed that the Employer, to the extent consistent with the activity's manpower requirements, will make a reasonable effort to reassign employees whose positions are eliminated due to automation or adoption of labor saving devices. It is agreed that the Employer will make reasonable effort to train employees, where necessary for reassignment, whose positions are eliminated because of automation or adoption of labor saving devices, provided cost of such training is not prohibitive, and if the employee has the necessary aptitude as determined by the Employer.

A. Positions of the Parties

The Agency asserts that Provision 7 would limit its ability to "staff" as it sees fit in the event of technological change. Statement of Position at 9. Therefore, it argues that the provision interferes with the management rights to assign work and to select from any appropriate source under sections 7106(a)(2)(B) and (C) of the Statute.

The Union asserts that the provision was originally proposed by management rather than by the Union. The Union also contends that the provision "contains no more objectionable language nor imposes no more restriction" than another provision which the Agency found to be unobjectionable. Petition for review at 3.

B. Analysis and Conclusion

1. The First Sentence of Provision 7

The first sentence of Provision 7 provides that consistent with manpower requirements, the Agency will make reasonable efforts to reassign employees whose positions are eliminated due to technological change. Although the provision does not state where affected employees would be reassigned, we conclude, in the absence of any indication otherwise, that the provision is intended to require reassignment of employees to vacant positions. Thus, like Provision 6, by providing for filling positions by reassignment, Provision 7 directly interferes with management's right in filling vacancies, to select from any appropriate source under section 7106(a)(2)(C)(ii) of the Statute.

Additionally, like Provision 6, we find that Provision 7 interferes with management's right to assign employees to positions under section 7106(a)(2)(A) because it would require that management reassign particular employees to vacancies. Under the provision's terms, management would be unable, for example, to fill vacancies with internal candidates from organizational elements unaffected by a technological change. Consequently, the provision would limit the field of employees eligible for assignment to vacancies and would directly interfere with the right to assign employees.

The Union made no claim that the first sentence of Provision 7 is intended as an appropriate arrangement. However, we find that the first sentence of Provision 7, like Provision 6, is aimed at ameliorating the impact on employees of management's decision to introduce technological changes. The results of such changes reasonably could be assumed to include demotions and loss of employment. Thus, the first sentence of Provision 7, like Provision 6, is an arrangement for adversely affected employees.

Contrary to the Agency's position, and unlike Provision 6, we do not construe the first sentence of Provision 7 as divesting management of its authority to fill or not fill vacancies. We believe that the statement that the first sentence applies "to the extent consistent with the activity's manpower requirements," provides a sufficient basis to conclude that management may continue to decide whether to fill vacancies, because we view "manpower requirements" as including the authority to decide whether vacancies should be filled. Additionally, we find no basis in the provision's wording for concluding that the Agency would be obligated to waive qualifications requirements in filling vacancies under the circumstances covered by the provision. To the contrary, the statement that the provision must operate in a manner consistent with manpower requirements supports the conclusion that management retains the right to select only qualified employees because the right to decide what skills are needed to perform the Agency's work is also an inherent aspect of establishing manpower requirements.

In NAS, Oceana, 30 FLRA at 1116-19, we found Provision 5 which required the agency to use continuing vacancies, "to the maximum extent possible" in placing employees who would otherwise be separated in a RIF to be nonnegotiable. We decided that Provision 5, in limiting the discretion to decide whether or not to make reassignments, interfered with management's right under section 7106(a)(2)(C) to make selections for appointments. Nevertheless, we found that Provision 5 was an appropriate arrangement. We noted that the provision's objective was to mitigate the adverse effects, specifically demotion or loss of employment, on employees caused by the exercise of a management right. In balancing the competing interests, we noted that management retained authority to decide whether to fill vacancies. It also retained the right to determine what qualifications were necessary to accomplish the work assigned to the positions and which employees had those qualifications. On the other hand, the impact of management's actions on unit employees was severe. Therefore, on balance we found that the provision was an appropriate arrangement.

Provision 7, like Provision 5 in NAS, Oceana, preserves management's right to fill or not fill vacancies and does not require management to select unqualified employees. Accordingly, based on the reasoning more fully set forth in NAS, Oceana, we find that the first sentence of Provision 7 is an appropriate arrangement under section 7106(b)(3).

2. The Second Sentence of Provision 7

The second sentence of Provision 7 would require the Agency to provide training for employees displaced due to technological change to qualify them for other jobs. Proposals requiring management to provide training during duty hours to enable employees to perform a new specialty or perform in a replacement position of equivalent significance and/or grade conflict with management's right to assign work. NAS, Oceana, at 1114-16 (Provision 4); American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA 868, 872-73 (1986) (Proposal 3) (Social Security Administration).

The second sentence of Provision 7 does not indicate whether management is to provide the training during duty hours. Therefore, under the sentence's terms, training may be required during duty hours. Consequently, the second sentence of the provision is to the same effect as Provision 4 in NAS Oceana and to the same effect as Proposal 3 in Social Security Administration. Accordingly, we find that the second sentence of Provision 7 interferes with the right to assign work.

The Union made no claim that the second sentence of Provision 7 is intended as an appropriate arrangement. However, we find that the second sentence of Provision 7, like the first sentence of Provision 7, and like Provision 6, is aimed at ameliorating the impact on employees of management's decision to introduce technological changes. The results of such changes reasonably could be assumed to include demotions and loss of employment. Thus, the second sentence of Provision 7, like the first sentence of Provision 7, and like Provision 6, is an arrangement for adversely affected employees.

The second sentence of the provision would require the Agency to make reasonable efforts to train affected employees. It does not prescribe the characteristics of the training. Management is free to decide on the type of training, whether it will be in the classroom or on the job, and the time at which the training will be conducted. Additionally, the Agency's right to assign work or to evaluate employees' performance is not conditioned upon the Agency's having first provided the prescribed training. In light of these facts, on balance we find that the second sentence of Provision 7 does not excessively interfere with management's right to assign work under section 7106(a)(2)(B). Consequently, the second sentence of Provision 7 is within the duty to bargain as an appropriate arrangement under section 7106(b)(3). NAS, Oceana at 1114-16. See also American Federation of Government Employees, AFL-CIO, Local 1625 and Non-Appropriated Fund Instrumentality, Naval Air Station, Oceana, Virginia, 31 FLRA 1281, 1282 (1988) (Proposal 1).

Based on the foregoing, Provision 7 does not excessively interfere with management's rights and is an appropriate arrangement within the meaning of section 7106(b)(3).

X. Provision 8

Article 24, Subsection 2i. This procedure applies to all matters subject to grievance procedures allowable under the Civil Service Reform Act of 1978 (Public Law 95-454) except:

. . . . . . .

i. Removal of probationary employees during the twelve (12) month probationary period except when the basis of the grievance concerns procedural matters [the underlined part of the provision is at issue.]

A. Positions of the Parties

The Agency contends that by affording probationary employees procedural protections which may be litigated under the negotiated grievance procedure, Provision 8 violates both law and Government-wide regulation.

The Union contends that neither law nor regulation prevents probationers from grieving management's failure to follow proper procedures in terminating them.

B. Analysis and Conclusion

In United States Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (Department of Justice), the United States Court of Appeals for the District of Columbia Circuit held that the termination of probationary employees could not be included within a negotiated grievance procedure. The Court found that, in the Civil Service Reform Act of 1978, Congress expressly preserved an agency's discretion to remove summarily a probationary employee. Congressional intent, according to the Court, was to create a scheme in which probationary employees would receive some minimal due process, such as a limited explanation of the reasons for discharge, while preserving from review an agency's decision to remove a probationary employee. See also National Treasury Employees Union v. FLRA, No. 87-1166, slip op. at 8 (D.C. Cir. June 3, 1988), where the United States Court of Appeals for the District of Columbia Circuit reiterated its conclusion in Department of Justice that Congress intended "that a single additional forum available to other federal employees--a negotiated grievance procedure--would remain unavailable to probationers."

Bas