35:1052(115)NG - - NFFE Local 1437 and Army Armament Reserch, Development and Engineering Center, Picatinny Arsenal, NJ - - 1990 FLRAdec NG - - v35 p1052



[ v35 p1052 ]
35:1052(115)NG
The decision of the Authority follows:


35 FLRA No. 115

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

Local 1437

(Union)

and

UNITED STATES ARMY ARMAMENT

RESEARCH, DEVELOPMENT AND ENGINEERING CENTER

PICATINNY ARSENAL, NEW JERSEY

(Agency)

0-NG-1682

DECISION AND ORDER ON NEGOTIABILITY ISSUES

May 10, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and involves three proposals. Proposal 1 requires the Agency to provide training concerning health and safety matters for five employees designated by the Union. Proposal 2 requires the Civilian Personnel Office to select two employees for the Agency's rating and ranking panel--one employee from a list submitted by the Equal Employment Opportunity Office and one from a list submitted by the Union. In addition, if a Union member is not qualified for selection to the Panel, Proposal 2 provides that a Union-nominated employee will be invited to attend panel meetings as an observer. Proposal 3 permits the Union to have a permanent voting representative on the Invention Evaluation Committee. The Union did not file a reply brief in this case.

For the reasons discussed below, we find that Proposal 1 directly interferes with management's right under section 7106(a)(2)(B) of the Statute to assign work. We

find that the disputed portions of Proposal 2 directly interfere with management's rights under section 7106(a)(2)(B) to assign work, under section 7106(a)(2)(A) to assign employees, and under section 7106(a)(2)(C) of the Statute to select employees. We find that Proposal 3 directly interferes with management's rights under section 7106(b)(1) to determine the methods and means of performing work and under section 7106(a)(2)(B) to assign work. Therefore, the appeal must be dismissed.

II. Proposal 1

The employer will authorize five employees designated by the union to attend at least one training course given by OSHA and HEW in the New York-New Jersey area each year during the life of this agreement in order to prepare them for their duties to represent the bargaining unit in safety and health-related matters in accordance with this agreement. Union representatives will be on duty status while attending this training and will receive all proper per diem, tuition and travel expense.

[Only the underlined portion is in dispute.]

A. Positions of the Parties

1. Agency's Position

The Agency states that "[c]learly, the union's proposal mandates the assignment of specific training programs during the employees' duty time." Statement of Position at 2. The Agency contends that the Authority has consistently held that the assignment of training involves the assignment of work and, therefore, any proposal which mandates specific training is nonnegotiable. The Agency argues that because Proposal 1 requires the assignment of training during duty time, it interferes with management's reserved right to assign work. Thus, the Agency contends that the proposal is outside the duty to bargain because it violates section 7106(a)(2)(B) of the Statute.

Further, the Agency disputes the Union's argument that Proposal 1 is negotiable because it is based on a broad requirement found in an Occupational Safety and Health Administration (OSHA) Regulation, 29 C.F.R. § 1960.59. First, the Agency argues that Proposal 1 does not mirror the OSHA regulation. In support, the Agency contends that the regulation "provides broadly that OSHA training should be provided to certain employee representatives." Statement of Position at 3. The Agency contends that, in contrast, "the proposal mandates the assignment of specific training at a minimum frequency and, as such, it violates management's right to assign work." Id. In addition, the Agency argues that under Authority case law, Proposal 1 would be nonnegotiable even if it mirrored the OSHA regulation, because including the proposal in a collective bargaining agreement would impose an independent contractual requirement on the exercise of management's discretion.

Finally, the Agency argues that Proposal 1 does not qualify for consideration as an appropriate arrangement under section 7106(b)(3) of the Statute. In support, the Agency maintains that "[t]he proposal does not attempt to ameliorate any threat to the employees' safety nor does it provide a benefit which mitigates against some adverse consequence resulting from a management action." Id.

2. Union's Position

The Union argues that Proposal 1 is intended "to provide training to union officials so that they can better represent their bargaining unit in matters related to the safety of the workplace pursuant to 29 CFR Part 1960[.]" Petition for Review at 1. The Union maintains that 29 C.F.R. § 1960.59 provides for training which will enable employee representatives to ensure safe and healthful working conditions and to assist in conducting workplace safety and health inspections.

The Union also asserts that the regulation allows for OSHA training to be included in a collective bargaining agreement negotiated with the Agency. In support, the Union asserts that 29 C.F.R. § 1960.59 provides, "'[n]othing in this paragraph shall be construed to alter training provisions provided by law, Executive Order, or collective bargaining agreements.' [Emphasis added]" Id. The Union maintains that the regulation "in effect provides for training of union officials in workplace-related health and safety, which in turn ensures the negotiability of proposals such as the instant one." Id. at 1-2.

The Union argues that compliance with the regulation cannot be an infringement on the right to assign work because management's right is subject to all applicable laws and regulations. In addition, the Union asserts that "[t]o deny the negotiability of this proposal is to deny the union the training necessary to perform representational duties required of it by law." Id. at 2.

B. Analysis

Proposal 1 would require that management provide training to five employees during duty time. Requiring an agency to provide, or authorize absences with pay for an employee to attend, training during duty hours prevents the agency from assigning other work to the employee during that time and, therefore, constitutes an assignment of work. Furthermore, a proposal which specifies the type of training directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 1625 and U.S. Navy Fleet Combat Training Center, Atlantic, Dam Neck, Virginia Beach, Virginia, 28 FLRA 1134 (1987).

Because Proposal 1 prescribes training during duty hours, it directly interferes with management's right to assign work and, therefore, is outside the duty to bargain. See American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710, 718-19 (1986) (Proposal 6), affirmed on other grounds sub nom. AFGE, Local 2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987) (proposal requiring training for employees on reasonable accommodation for handicapped employees found outside the duty to bargain because it directly interfered with management's right to assign work). Compare American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Polaris Missile Facility, Atlantic, Charleston, South Carolina, 35 FLRA No. 67 (1990) (proposal requiring agency to grant administrative excusal, in lieu of charging employees leave, so that employees may attend mandatory motorcycle safety training course given during duty hours found negotiable).

In finding Proposal 1 to be inconsistent with management's right to assign work, we reject the Union's claim that the proposal is negotiable because it merely provides for the training required in OSHA regulation 29 C.F.R. § 1960.59(b).(*) Proposal 1 sets forth a specific type of training, the number of employees to be trained, and the location and frequency of the training. These specific requirements set out in the proposal are materially different from the broad requirements established in 29 C.F.R. § 1960.59(b). That OSHA regulation requires that agencies establish a training program for health and safety concerns and provide both introductory and specialized training to employee representatives to enable them to adequately represent employees in health and safety requirements.

Further, even if Proposal 1 provided for the training required by 29 C.F.R. § 1960.59, as the Union suggests, it would require the training even if OSHA changed or rescinded the regulation. In National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422, 426-27 (1987) (Provision 4), the Authority noted that even if a provision accurately reflects the requirements of a regulation, including such a provision in a collective bargaining agreement imposes an independent contractual requirement on the exercise of the management right involved. The Authority found that including such a provision in a collective bargaining agreement would require the Agency to comply as a matter of contract, even if the regulation was changed or eliminated. Id. By creating a contractual restriction on management's right to assign work, Proposal 1 is inconsistent with section 7106(a)(2)(B) of the Statute and is outside the Agency's duty to bargain. See also National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 575-78 (1981) (Proposal 1), affirmed sub nom. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982).

Finally, we note the Agency's claim that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute. Because the Union did not raise this issue before the Authority, we will not address the Agency's claim.

C. Conclusion

Based on the analysis and cases cited above, we find that Proposal 1 is outside the Agency's duty to bargain because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

III. Proposal 2

The Panel will be convened by the Civilian Personnel Office.

Panel members shall be chosen as follows:

- At least two members shall be selected by the Civilian Personnel Office; one from a list submitted by the EEO Office.

- One member shall be selected from a list of permanent nominees furnished by the union. If a union member does not meet the qualifications to be selected as noted . . . below, an individual selected by the Union will be invited to attend as an observer but will abstain from voting with the panel.

- The panel shall have no policy making responsibilities. The panel will not establish criteria or qualifications except if required under CPO procedures and guidelines. The panel will be provided with all criteria necessary to rank candidates and to make the determination of eligibility for the position based on the qualifications required.

[Only the underlined portions are in dispute.]

A. Positions of the Parties

1. Agency's Position

The Agency argues that the first disputed portion of Proposal 2, requiring that the Civilian Personnel Office (CPO) select a minimum of two candidates for the Agency's merit promotion rating and ranking panel, interferes with management's right under section 7106(b)(1) of the Statute to determine the numbers, types, and grades of its employees. The Agency maintains that "the proposal denies the activity the right to assign only one employee the task of rating and ranking merit promotion applications." Statement of Position at 7 (emphasis in original).

In addition, the Agency argues that by requiring the CPO to select employees for the rating and ranking panel and the Equal Employment Opportunity (EEO) Office to compile a list of nominees, the first disputed portion of Proposal 2 "mandates that management assign specific work to specific offices." Id. at 6. Therefore, the Agency maintains that the first disputed portion of Proposal 2 interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Further, the Agency contends that by requiring it to select committee members from the EEO list without determining an employee's qualifications, the first disputed portion of Proposal 1 violates the Agency's right to assign employees under 7106(a)(2)(A) of the Statute. In support, the Agency argues that the Authority has stated that the right "'to assign employees includes the discretion to determine the particular qualifications and skills needed to perform the work[.]'" Id. The Agency argues that because the first disputed portion of Proposal 2 does not allow management to exercise this discretion, it violates management's right to assign employees.

In regard to the second disputed portion of Proposal 2, the Agency states that the intent of this portion is to provide for Union involvement in the Agency's merit promotion rating and ranking panel. The Agency contends that the "rating and ranking panel is an integral part of the process management has chosen to use to select candidates to fill vacant positions and, as such, is a key aspect of management's right to select employees in accordance with section 7106(a)(2)(B) of the Statute." Id. at 4. The Agency asserts that because the second portion of Proposal 2 requires the selection of a Union-designated representative to serve on the panel, it is outside the duty to bargain because it interferes with management's right to select. In support, the Agency states that "[u]nion involvement with merit promotion rating and ranking panels has been addressed by the Authority and the courts with the resounding resolution being that it is nonnegotiable." Id. at 4. Similarly, the Agency contends that the second disputed portion of Proposal 2 requiring a Union observer on the panel interferes with management's right to select. The Agency stated that this portion of the proposal is distinguishable from cases where "the proposal only required the agency to consider union nominees for management committees involved in a substantive decision-making process." Id. at 5 (emphasis in original).

Lastly, the Agency asserts that the third disputed portion of Proposal 2, by prohibiting management from assigning the panel any policy-making responsibilities except in specified circumstances, interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Based on Authority precedent, the Agency contends that the right to assign work includes discretion to determine what duties are to be assigned. The Agency maintains that "proposals which interfere with management's discretion to assign the work it chooses, to the individuals or organizations it deems appropriate, are nonnegotiable." Id. at 8. The Agency argues that "the instant proposal violates the right to assign work by proscribing certain work assignments for employees engaged in rating and ranking employees and, as such, must be found nonnegotiable." Id.

2. Union's Position

The Union contends that the "intent of this provision is to provide representation on evaluation panels for representatives of the union and of the EEO office so that both may be certain that a proper ranking of candidates is made in accordance with predetermined criteria." Petition for Review at 2. Further, the Union argues that these representatives on the panel will provide assurances that ratings are made fairly with respect to merit and equal opportunity principles. The Union asserts that "having 'outsiders' on the panel is the one thing that gives a panel validity in the eyes of most employees." Id.

The Union contends that "[r]equiring a panel member from EEO and from the union in no way prevents Management 'from assigning those particular responsibilities to anyone else.'" Id. The Union argues that because no maximum number of nominees is named, the Agency can assign the duties to other employees. The Union argues that "[t]he only 'chilling effect' it [having Union and EEO representatives on the panel] can have is to prevent the panel from using improper procedures and criteria[.]" Id. at 2-3.

B. Analysis

1. The First Disputed Portion Directly Interferes With Management's Rights to Assign Work and Assign Employees

First, we find that by requiring that the CPO appoint two employees to the merit promotion rating and ranking panel and by requiring that the EEO Office compile a list of nominees for the panel, the first disputed portion of Proposal 2 violates management's right to assign work under section 7106(a)(2)(B) of the Statute. The Authority has consistently held that when a proposal requires that a particular employee or a particular office perform a designated duty, it directly interferes with management's right to assign work by preventing an Agency from assigning those tasks to other employees. Because this portion of Proposal 2 dictates that specific duties be performed by the CPO and the EEO Office, it directly interferes with management's right to assign work and, therefore, is outside the Agency's duty to bargain. See American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172, 1181-84 (1987) (proposal requiring that several agency offices and employees perform specific work tasks held nonnegotiable because it interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute). Compare National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362 (1990) (provision requiring only that a panel be appointed to consider qualified candidates did not violate management's right to assign work because the provision did not require the agency to assign specific duties to particular individuals).

Further, we find that the first disputed portion of Proposal 2, requiring the Agency to select at least one employee for the rating and ranking panel from a list compiled by the EEO Office, is outside the duty to bargain because it directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. The Authority has held that management's right to assign employees encompasses both the right to determine the requirements and qualifications necessary to perform a particular job task and the right to determine which employees meet those qualifications. Proposals which deprive management of this discretion directly interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute.

The first disputed portion would require the Agency to select at least one participant from the EEO list, even if none of the employees on the list met the qualifications the Agency deemed necessary for participation on the panel. Therefore, the first disputed portion of Proposal 2 would deprive management of its discretion under section 7106(a)(2)(A) of the Statute to determine the qualifications that are necessary for assignment to the panel. Consequently, the first disputed portion of Proposal 2 directly interferes with management's right to assign employees and, therefore, is outside the duty to bargain. See Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA 1119, 1121 (1987), reversed as to other matters sub nom. Fort Knox Dependent Schools, 875 F.2d 1179 (6th Cir. 1989), petition for cert. filed, 58 U.S.L.W. 3404 (U.S. Nov. 11, 1989) (No. 89-736) (proposal requiring that bus chaperones be selected randomly from a list of all teachers found to interfere with management's right to assign employees because it deprived management of the discretion to determine the particular qualifications necessary for the task).

Because we have found that the first disputed portion directly interferes with management's rights to assign work and assign employees under section 7106(a) of the Statute, we will not address the Agency's contention that it also is negotiable only at the election of the Agency under section 7106(b) because it directly interferes with management's right to determine the number of employees assigned to a work project.

2. The Second Disputed Portion Directly Interferes With Management's Right to Select Employees

The second disputed portion of Proposal 2 would require management to select a member of the Agency's rating and ranking panel from a Union-compiled list. The rating and ranking panel is part of the process used by the Agency to select candidates to fill vacant positions. Consequently, the rating and ranking panel involves management's right to select under section 7106(a)(2)(C) of the Statute. American Federation of Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640, 643-44 (1985) (Provision 3) (Bureau of the Mint).

The Authority consistently has held that the exercise of management's rights also encompasses actions integral to the exercise of the right, including discussion and deliberation on the relevant factors upon which the decision to act is made. See Bureau of the Mint, 19 FLRA at 643-45 (proposal requiring union participation on agency's promotion rating and ranking panel held to be outside the duty to bargain because it interfered with management's right to select employees under section 7106(a)(2)(C)). Inasmuch as the rating and ranking panel in this case involves management's deliberations on the selection of employees, the panel is an integral part of management's right to select. Thus, the second disputed portion of Proposal 2, which mandates the appointment of a Union-selected employee to the panel, would involve the Union in management's internal deliberative process. Consequently, this portion directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute, and is outside the Agency's duty to bargain.

Similarly, the second disputed portion of Proposal 2 requiring the appointment of a Union observer on the rating and ranking panel, in situations where the Union's nominees do not meet the necessary qualifications for appointment to the panel, is also outside the Agency's duty to bargain. As stated above, the rating and ranking panel involves the deliberative process by which the Agency selects employees. Placing a Union observer on the rating and ranking panel would improperly interject the Union into management's internal decision-making process. Therefore, a Union observer on the panel would interfere with management's deliberative process in the same manner as an active Union participant. Because the second disputed portion of Proposal 2 requires the placement of a Union observer on the rating and ranking committee, it directly interferes with management's right to select employees for particular tasks and is outside the Agency's duty to bargain. See American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 410-11 (1987) (Proposal 9) (proposal requiring the placement of union observer on agency's rating and ranking panel found outside the duty to bargain because it interfered with management's right to select under section 7106(a)(2)(C)).

3. The Third Disputed Portion Directly Interferes With Management's Right to Assign Work

The third disputed portion of Proposal 2 states that the rating and ranking panel will not have policy-making responsibilities, and that the panel will not establish criteria or qualifications for selection unless required to do so by the CPO procedures and guidelines. The language of the first sentence in the disputed portion would prohibit the panel from performing policy-making functions. Proposals which dictate the work to be performed or prohibit an agency from assigning specific types of work directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686, 691-92 (1984) (Proposal 5) (proposal prohibiting agency from assigning higher level duties except in specified circumstances held nonnegotiable because it interfered with management's right to assign work under section 7106(a)(2)(B)).

In addition, the second sentence of the third disputed portion would prevent management from assigning to the panel the task of establishing criteria or qualifications unless the CPO first established procedures and guidelines. Although this sentence would not absolutely prohibit the panel from performing certain functions, the panel could not perform those functions unless the CPO established guidelines and procedures. This sentence places a precondition on management's ability to assign a specific task to the panel which precondition itself involves the assignment of tasks to the CPO. Proposals which condition the exercise of a management right on the prior exercise of the same or another management right are outside the duty to bargain. See American Federation of Government Employees, AFL-CIO, Local 3004 and Department of the Air Force, Otis Air Force Base, Massachusetts, 9 FLRA 723 (1982). Consequently, the second sentence of the third disputed portion of Proposal 2 is also inconsistent with management's right under section 7106(a)(2)(B) of the Statute to assign work.

Therefore, the third disputed portion of proposal 2 directly interferes with management's right to assign work and is outside the Agency's duty to bargain.

C. Conclusion

Consequently, we find that the first disputed portion of Proposal 2 directly interferes with management's rights to assign work under section 7106(a)(2)(B) of the Statute and to assign employees under section 7106(a)(2)(A) of the Statute. The second disputed portion of the proposal directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute. The third disputed portion of Proposal 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

IV. Proposal 3

The Union will have a permanent voting representative on the Invention Evaluation Committee.

A. Positions of the Parties

1. Agency's Position

The Agency maintains that the functions of the Invention Evaluation Committee (IEC) involve management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. In support, the Agency states that the function of the IEC is to determine whether employee and contractor inventions are of "sufficient Government interest, to include possible commercial use or national application, to warrant seeking a Government patent." Statement of Position at 9. The Agency further states that if the committee determines that there is insufficient Government interest in the invention, then the "inventor will be allowed to retain the rights to the invention and file a patent application[.]" Id.

In addition, the Agency states that "[w]hen the IEC determines that a patent should not be sought, it can 'disclose' the technology." Id. at 11. The Agency asserts that the "disclosure" prohibits other companies or persons from obtaining patent rights on the invention, but may allow other companies or persons to build on the disclosed technology. The Agency argues that the "decision to 'disclose' an invention provides the agency an alternate method for seeking or developing inventions and technological advances." Id.

To further support its position that the committee's functions implicate management's right to determine the methods and means of performing work, the Agency states that "[t]he mission of [the Agency] is to research and develop various armaments, munitions and chemical technology, for the Departments of the Army and Defense." Id. The Agency argues that the determinations concerning inventions in these areas are plans and policies used to further the Agency's work.

Based on the functions of the IEC and the mission of the Agency, the Agency contends that the decisions made by the committee concern management's right to determine the methods, means, and technology of performing work under section 7106(b)(1) of the Statute. The Agency maintains that the IEC is the deliberative process by which management exercises that right. The Agency argues that placing a Union representative on the committee would interject the Union into management's deliberative process, and, therefore, the proposal violates section 7106(b)(1) of the Statute.

In addition, the Agency contends that Union participation on the IEC committee interferes with management's right to determine its internal security. The Agency contends that if it decides to seek a patent, "[t]his provides the agency with technological security and advancements in the production and deployment of various materiel." Id. at 12. The Agency contends that the committee's determination on "disclosure" may allow the technology "to fall into the public domain." Id. Therefore, the Agency maintains that "decisions concerning the seeking of a patent involve, among other things, the disclosure or concealment of the invention and the safeguarding of our physical property[.]" Id. at 13. In addition, the Agency argues that the "IEC's decisions impact on whether there will be private sector interest in developing alternate sources of inventions which can be used in our national defense." Id. at 12.

Lastly, the Agency contends that by prescribing that a Union representative be assigned to the IEC, the proposal violates management's right to assign work. First, the Agency contends that if a patent is sought, the case is transferred to the patent attorneys for action. The Agency asserts that "union involvement in deciding to seek a patent has the effect of assigning work to the patent lawyers." Id. at 13. Second, the Agency argues that because the "IEC involves management deliberations and . . . the committee has specific tasks that it must complete, assigning employees to the IEC involves assigning work." Id. Therefore, the Agency argues that Proposal 3 interferes with its right to assign work under section 7106(a)(2)(B) of the Statute.

2. Union's Position

The Union maintains that the "intent of this provision is to furnish a mechanism to assure that evaluation of inventions is made objectively with no favoritism." Petition for Review at 3. The Union argues that management officials are familiar with the mission of the Agency, but "are poorly equipped to evaluate the technical merit of a patent." Id. The Union contends that decisions to pursue the commercial development of a patent affect the amount of money a patentee receives. In addition, the Union maintains that the purpose of "union representation on the committee is to provide a measure of peer review and ventilation to the work of the committee[.]" Id. The Union argues that a Union representative on the committee would "insure [sic] that the committee functions to reward true technical merit, not as a device for passing out favors or punishing employees[.]" Id.

B. Analysis

1. The Proposal Violates Management's Right to Determine the Methods, Means, and Technology of Performing the Agency's Work

First, we find that the IEC's work involves management's right to determine the methods and means of performing Agency work under section 7106(b)(1) of the Statute. Under section 7106(b)(1) of the Statute, "means" refers to any instrumentality including any agent, tool, device, plan, or policy used by an agency for accomplishing or furthering the performance of its work. National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 406-07 (1990). To implicate this management right, the "means" chosen by the agency must be directly and integrally related to the performance of its work. See id. See also Fort Knox Teachers Association and Fort Knox Dependent Schools, 22 FLRA 815, 817-19 (1986) (Proposal 3) (Fort Knox).

In this case, the Agency's mission is to research and develop various armaments, munitions, and chemical technology for the Department of the Army and Defense. The IEC has the task of determining which inventions warrant patent applications and what research should be disclosed to the public. If the Agency files for a patent, the rights to the invention and technology will be protected. If the IEC decides to disclose the information, private individuals and companies can utilize the research. Disclosure, in turn, can lead to further advancements in technology which the Agency can use to fulfill its mission. Thus, we find that the committee is a tool the Agency uses to further its technology and fulfill its mission. Consequently, the committee is a "means" of performing work under section 7106(b)(1) of the Statute. Because the IEC's decisions can dictate what technology is available to the Agency, the IEC is directly and integrally related to the performance of Agency work. Therefore, the IEC involves management's right to determine the methods and means of performing work.

Proposal 3 provides for Union representation on the Agency's IEC. Union participation on a committee interferes with management's rights if the committee is involved in the deliberative process by which management exercises its rights. See Bureau of the Mint, 19 FLRA at 643-44. The IEC's work involves the exercise of management's right to determine the methods and means of performing work. Union participation on the IEC would interject the Union into management's deliberative process. Therefore, Proposal 3 directly interferes with management's right under section 7106(b)(1) by involving the Union in the deliberative process by which management determines the means of performing its work. Because the proposal directly interferes with this management right, it is negotiable only at the election of the Agency. The Agency has chosen not to bargain over the matter, and therefore, it is outside the duty to bargain. See Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 763-766 (1987) (Proposal 18), reviewed as to other matters sub nom. Overseas Education Association, Inc., 872 F.2d 1032 (D.C. Cir. 1988) (Overseas Education Association) (union participation on agency textbook and curriculum committee found outside the duty to bargain); Fort Knox, 22 FLRA at 817-19 (proposal requiring union participation on the agency's curriculum development committee found to interfere with management's right to determine the method, means, and technology of performing its work).

2. The Proposal Directly Interferes With Management's Right to Assign Work Under Section 7106(a)(2)(B) of the Statute.

The Agency also argues that by allowing the Union to appoint an employee to the IEC, the proposal would interfere with management's right to assign work. As shown above, the IEC is an integral part of the process by which the means of performing Agency work is determined. Because the committee is a means of performing Agency work, the tasks associated with carrying out its functions involve the assignment of work. By requiring Union participation on the committee, Proposal 3 dictates the assignment of specific duties to Union nominees. Therefore, the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is outside the Agency's duty to bargain. See Overseas Education Association, 29 FLRA at 767.

As we have found that Proposal 3 is outside the Agency's duty to bargain because it directly interferes with management's rights to determine the methods and means of performing work and to assign work, we need not address the Agency's contention that the proposal also interferes with management's right to determine its internal security practices.

C. Conclusion

Based on the analysis and cases cited above, we find that