38:0309(34)NG - - AFGE Council 214 and Air Force, Air Force Logistics Command, Wright-Patterson AFB, OH - - 1990 FLRAdec NG - - v38 p309



[ v38 p309 ]
38:0309(34)NG
The decision of the Authority follows:


38 FLRA No. 34

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 214

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

AIR FORCE LOGISTICS COMMAND

WRIGHT-PATTERSON AIR FORCE BASE, OHIO

(Agency)

0-NG-1658

DECISION AND ORDER ON NEGOTIABILITY ISSUES

November 23, 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 under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It involves nine proposals concerning the use of "last chance agreements" for bargaining unit employees subject to disciplinary action.(1)

We find that Proposals 1, 2(a), 2(b), 2(f), 2(g), and 7, which establish procedures management will observe when offering employees last chance agreements, do not interfere with the Agency's right to discipline employees and are negotiable.

Proposal 3, which requires the Agency to give the Union notice of, and an opportunity to be present at, meetings concerning last chance agreements, does not violate management's right to discipline employees or the Privacy Act and, thus, is within the duty to bargain.

Proposal 6, which states that local last chance or pre-removal agreements shall not modify the parties' master agreement; Proposal 8, which provides that neither the employee's nor the Union's rights are waived by the agreement; and Proposal 9, which preserves the Union's right to change the proposals during negotiations do not interfere with the right to discipline and are not inconsistent with any law, rule or regulation. Therefore, we find that those proposals are also within the duty to bargain.

Proposal 2(d), by staying all disciplinary action pending resolution of the grievance through the negotiated grievance procedure, and Proposal 2(e), by expunging the disciplinary action upon the successful completion of the probationary period, directly interfere with management's right to discipline employees and are not appropriate arrangements under section 7106(b)(3) of the Statute. Proposal 2(c), which permits challenges to last chance agreements through the negotiated grievance procedure, violates sections 7121(d) and (e) of the Statute and, thus, is outside the duty to bargain. Proposal 4, which permits the Union to negotiate the terms of a last chance agreement on behalf of an employee, is outside the duty to bargain because it is inconsistent with sections 7114(a)(5)(A) and 7121(b)(3)(B) of the Statute. Proposal 5 is not sufficiently specific and delimited to permit the Authority to issue a negotiability determination and is dismissed on that ground.

II. Background

The Air Force Logistics Command (AFLC) provides logistic support and resources to the Department of the Air Force necessary to keep the Air Force units and weapon systems in a state of readiness. It accomplishes its mission through 4 logistics centers and 12 specialized centers. The Union represents an AFLC-wide bargaining unit comprising approximately 73,000 employees out of a workforce of approximately 100,000 military and civilian employees worldwide.

The Union filed the instant petition for review because the Agency alleged, in response to the Union's request to negotiate, that proposals involving last chance agreements were nonnegotiable. The Agency filed a statement of position and the Union filed a response. Both parties also filed supplemental briefs.

III. Preliminary Consideration

At the outset, we reject as unsupported the Agency's claim that, without regard to specific proposals, it has no duty to bargain over last chance agreements under the Statute. The Agency contends that a last chance agreement is a disciplinary instrument tailored to the special circumstances involved in a particular disciplinary action. Such an agreement, the Agency claims, may be negotiated with the concerned employee or the employee's representative, but not with the Union unless the Union is acting on behalf of a specific employee in the context of a particular disciplinary action. The Agency argues that inasmuch as these agreements concern individual employees and do not rise to the level of a collective bargaining agreement, it is precluded from negotiating with the Union over such agreements. Statement of Position at 8-10.

In response, the Union contends that last chance agreements "represent a direct assault on employee rights and on the Union's ability to vindicate those rights." Response at 4. The Union explains that the procedures and arrangements outlined in the proposals represent the minimum safeguards needed, regardless of the circumstances of each individual case, because "[last chance] agreements are inherently coercive[.]" Id. The Union argues that "employees faced with the prospect of certain removal will often do almost anything to keep their jobs." Id.

We reject the Agency's general argument for the following reasons. Under section 7114(a)(1) of the Statute, the Union, as the employees' exclusive representative, is entitled to act for, and negotiate collective bargaining agreements covering, all employees. Under section 7103(a)(12), collective bargaining entails a good faith effort to reach an agreement with respect to conditions of employment affecting bargaining unit employees. Collective bargaining includes the duty to bargain mid-term over conditions of employment of bargaining unit employees that are not embodied in a collective bargaining agreement. See e.g., NTEU v. FLRA, 810 F.2d 295 (D.C. Cir. 1987) (agency has a duty to bargain with the union mid-term). In addition, as recognized by the National Labor Relations Board, a union has a statutory right to bargain collectively over conditions of employment that have individual application to unit employees. See Toledo Typographical Union No. 63 v. NLRB, 907 F.2d 1220, 1223-25 (D.C. Cir. 1990) (an employer's proposal permitting it to deal directly with employees concerning retirement and separation incentives would deprive the union of its central role under the National Labor Relations Act as the employees' representative in dealing with the employer).

In determining whether proposals involve a condition of employment under the Statute, the Authority considers whether the proposals concern bargaining unit employees and whether the proposals have a direct connection to employees' work situation or employment relationship. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986). The proposals in the present case relate to whether an employee's employment will continue and the circumstances under which an employee will be subject to disciplinary actions. Such matters clearly concern and have a direct relationship to the work situation and employment relationship of bargaining unit employees. See Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees Local 85, 28 FLRA 759, 760-61 (1987) (expunction of investigation file which resulted in discipline relates to the work situation and employment relationship of the grievant); American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347, 354-55 (1982), rev'd as to other matters sub nom. United States Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (questioning of employees by management on matters relating to disciplinary actions was found to be a matter affecting employees' working conditions).

Consequently, we find that the proposals concerning last chance agreements involve conditions of employment that are within the duty to bargain under the Statute to the extent that they are consistent with applicable laws and regulations. Therefore, we will proceed to consider the Agency's contentions regarding particular proposals.

IV. Proposals 1, 2 and 7 (2)

Proposal 1

AFLC shall not offer or attempt to persuade bargaining unit employees to waive their rights in connection with disciplinary and/or adverse actions or to waive their rights to challenge such actions through appropriate procedures, such as; [sic] MSPB, EEO, Arbitration, etc.

Proposal 2

The terms of "Last Chance" or "Pre-Removal" agreements offered by AFLC Management to AFGE Council 214's bargaining unit members for signature shall contain as a minimum the following provisions:

a. Reinstatement/implementation of disciplinary or adverse action by AFLC management will automatically reinstate full employees' rights. (If necessary, AFLC management will reissue a notice of proposed action and letter of final decision in order to restore full employees' rights. However, this reissuance will not be inconsistent [with] or violative of Section 5.02 of the Master Labor Agreement.)

b. Implementation of "Last Chance" or "Pre-Removal" agreements shall be for just cause and will not be arbitrary, capricious, an abuse of management discretion, based on disparate treatment, violate fundamental fairness or public policy.

c. Implementation of "Last Chance" or "Pre-Removal" agreements may be challenged through the negotiated grievance procedures.

d. Implementation of "Last Chance" or "Pre-Removal" agreements will be stayed pending final decision, if challenged through the negotiated grievance procedures. (Underlining in the original.)

e. Upon completion of the probationary period, the alleged disciplinary or adverse action which led to the "Last Chance" or "Pre-Removal" agreement will be cancelled and expunged from bargaining unit employees' personnel records.

f. Signing "Last Chance" or "Pre-Removal" agreements does not constitute admission of any wrong doing by bargaining unit employees.

g. Duration of the probationary period contained in "Last Chance" or "Pre-Removal" agreement will not exceed one (1) year. However, a lesser amount may be negotiated.

Proposal 7

"Last Chance" or "Pre-Removal" agreements will not be valid unless (1) the employee is given the opportunity to consult and/or discuss the matter with the Local President, or designee, [(2) the employee signs a statement agreeing not to hold AFGE responsible in any way and (3) signed in the presence of the Local President, or designee.](3)

A. Positions of the Parties

1. Agency

The Agency contends that management has the right to discipline employees "in accordance with applicable law" under section 7106(a)(2)(A) of the Statute. Statement of Position at 8. A proposal interferes with this right, the Agency contends, when it (1) insulates employees from discipline; (2) prohibits an agency from taking disciplinary actions against employees under prescribed circumstances; (3) requires the imposition of a particular disciplinary action; (4) establishes a "statute of limitations" for taking disciplinary action; (5) prohibits the agency from taking disciplinary action for instances that occur prior to a particular time; (6) prohibits the agency from withdrawing a disciplinary action and instituting a new disciplinary action encompassing the same charge; (7) limits discipline charges to those for which the employee has not been previously charged and precludes charges from which the employee has been absolved; and (8) requires negotiations over the criteria for imposing disciplinary action. Id.

The Agency claims that last chance agreements "are disciplinary instruments designed to permit an employee subject to a disciplinary action a last opportunity to demonstrate that he or she can be successfully rehabilitated, e.g., that his or her performance or conduct can be improved to the agency's satisfaction, and that the disciplinary action should not be taken." Id. at 8. The agreements "allow an agency, at its discretion, to forego or delay implementation of a disciplinary action in order to give an employee a last chance to demonstrate successful rehabilitation." Id.

The Agency asserts that "the decision to enter into a 'last chance' agreement, whether implemented unilaterally or through negotiations with an employee or the employee's representative, is a vital and integral part of management's decision to discipline." Id. at 9. Last chance agreements, the Agency asserts, directly involve factors upon which the decision to take disciplinary action is based and thus are integral to the exercise of the right to discipline employees under the Statute. Id. at 10.

Specifically, the Agency claims that Proposal 1 would preclude a waiver provision; Proposal 2 would require that certain provisions be included; and Proposal 7 would "establish general requirements to bargain over such agreements[.]" Id. at 10. By placing such restrictions on the use of last chance agreements, the Agency asserts, the proposals would establish the basis and criteria for imposing discipline.

In addition, the Agency argues that Proposal 2(c) would allow challenges to last chance agreements through the negotiated grievance procedure even if the underlying disciplinary actions have been challenged in a different forum. Challenges under these circumstances, the Agency argues, would violate 5 U.S.C. §§ 7121(d) and (e), which require employees to elect a forum.

In regard to Proposal 2(d), the Agency asserts that the proposal is not a negotiable procedure, claiming that the effect of Proposal 2(d) is not only to stay the last chance agreement but also to stay the underlying disciplinary action. By staying the underlying disciplinary action, the Agency contends, Proposal 2(d) directly interferes with management's right to discipline. The Agency urges the Authority to reexamine its decisions finding that proposals that do not prevent the agency from acting at all do not interfere with management's rights under section 7106 of the Statute. Id. at 16-25.

The Agency further contends that the Union has failed to demonstrate that the proposals constitute "appropriate arrangements," as set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard). As a threshold issue, the Agency asserts that the Union did not articulate how employees will be detrimentally affected by management's actions or how the matter proposed for bargaining is intended to address, or compensate for, the actual or anticipated adverse affects of the exercise of management rights. Supplemental statement of position at 2. The Agency further asserts that the proposals are not appropriate as arrangements for employees adversely affected by management's right to discipline employees because: 1) employees' utilization of last chance agreements will be substantively more restricted; 2) in most cases the circumstances giving rise to last chance agreements are solely within the employee's control; 3) the "proposals do not permit an equitable 'quid pro quo' sufficient to prompt the employee into adhering to a successful rehabilitation from the undesirable behavior[,]" and thus interfere in that and other ways with management's right to effectively and efficiently administer disciplinary action; 4) the interference with management's right to discipline employees is greater than the benefit to employees because management loses most of the benefit of last chance agreements and the benefit to employees is only speculative; and 5) government operations would be unduly burdened because management would be required to stay disciplinary actions pending adjudication and parties would be forced to resort to third party proceedings rather than resolving their differences locally. Id. at 3-6.

2. Union

The Union urges the Authority to reject "the Agency's excessively broad construction of its right to discipline." Response at 4. The Union argues that "[w]hile last chance agreements arise in the context of discipline, they are not discipline in themselves." Id. at 3. The Union asserts that the proposals do not prevent the Agency from determining whether or not to enter into a last chance agreement. The Union further argues that to the extent that the Agency has discretion over the terms of last chance agreements, the Agency's desire to retain complete discretion over those terms cannot serve as a bar to the Union's proposals.

Specifically, the Union states that Proposal 1 would prevent the Agency from offering employees last chance agreements that contain a waiver of all appeal rights. Id. The Union asserts that this proposal would not prevent the Agency from using last chance agreements but only ensures "that employees retain whatever rights they have by law to a proposal and reply period and to appeal a disciplinary or adverse action." Id. Therefore, the Union argues, Proposal 1 has no effect on whether disciplinary action is taken, but rather it preserves an employee's option to challenge that decision. Id. at 3-4.

The Union contends that "Proposal [2] prescribes minimum provisions which would be included or implied into all last chance agreements negotiated with bargaining unit employees." Id. at 6. In particular, it contends that Proposal 2(a) ensures the continuation of procedural rights; 2(b) "repeats what the law requires[;]" 2(c) allows challenges to last chance agreements through negotiated grievance procedures; 2(d) provides for stays when such challenges are raised; 2(e), by requiring the Agency to expunge an employee's disciplinary record relating to a last chance agreement, is only requiring what is prescribed under the Privacy Act, 5 U.S.C. 552a(e)(5); 2(f) maintains employees' appeal rights; and 2(g) recognizes the Agency's discretion to bargain over the duration of such agreements. Id. at 6-12.

The Union asserts that Proposal 7 merely requires "the Agency to maintain some evidence that it advised an employee of his right to consult with a Union representative, if he so desired, prior to signing a last chance agreement." Response at 15-16.

In response to the Agency's argument that Proposal 2(c) violates 5 U.S.C. §§ 7121(d) and (e), the Union emphasizes that it is not the intent of Proposal 2(c) to allow an employee to file a grievance on a matter which had previously been filed with the Merit Systems Protection Board (MSPB) or under the Agency's Equal Employment Opportunity (EEO) procedure. However, the Union argues that a subsequent decision to remove the employee would not have to be appealed to the MSPB as a matter of law. That subsequent disciplinary action may be a new matter, the Union argues.

The Union further argues that in the event the Authority finds that the proposals interfere with a management right, the proposals constitute appropriate arrangements under section 7106(b)(3) of the Statute. In support of its contention, the Union asserts that (1) the impact experienced by the adversely affected employee is quite extensive because it entails removal from employment; (2) the circumstances giving rise to a proposed removal or removal may not entirely be within the employees' control and the issue may not be determined until the exhaustion of appeal rights; (3) the extent of the impact on the Agency's ability to exercise its right to discipline is "non-existent;" and (4) the impact is proportionate to the benefits to be derived from the proposed arrangement. Response at 17-19.

B. Analysis and Conclusions

1. The Agency's Right to Discipline Employees Under Section 7106(a)(2)(A) of the Statute

a. Proposals 1, 2(a), 2(b), 2(c), 2(f), 2(g), and 7

For the following reasons, we find that Proposals 1, 2(a), 2(b), 2(c), 2(f), 2(g), and 7 do not interfere with management's right to discipline employees.

Proposals that prevent an agency from taking disciplinary action against an employee violate management's right to discipline employees under section 7106(a)(2)(A) of the Statute. National Federation of Federal Employees, Local 1655 and Department of Military Affairs, Illinois Air National Guard, 35 FLRA 815, 819 (1990). Therefore, to the extent that proposals would impinge upon an agency's right to determine the particular disciplinary action to be imposed on an employee for misconduct, or preclude management from exercising its right to discipline employees under specified circumstances, such proposals are inconsistent with management's right to discipline employees. West Point Elementary School Teachers Association, NEA and The United States Military Academy Elementary School, West Point, New York, 29 FLRA 1531, 1538-40 (1987) (West Point), aff'd in part as to other matters sub nom. West Point Elementary School Teachers Association v. FLRA, 855 F.2d 936 (2nd Cir. 1988).

Contrary to the Agency's contention, Proposals 1, 2, with the exception of Proposals 2(d) and 2(e), and 7 do not interfere with management's right to take disciplinary action against employees. Proposal 1 precludes the Agency from offering or attempting to persuade bargaining unit employees to waive statutory or contractual rights to appeal adverse actions or discipline. The Agency's right to determine whether to enter into a last chance agreement or to impose discipline, and to determine the type and length of discipline imposed, is not diminished because an employee does not waive his/her appeal rights. Such a waiver may provide the Agency an additional incentive to enter into last chance agreements, but it does not restrict the Agency's imposition of discipline in a given situation. Accordingly, Proposal 1 does not directly interfere with management's right to discipline employees.(4)

A similar analysis is appropriate for Proposals 2(a), 2(b), 2(c), 2(f), 2(g), and 7. Inasmuch as the proposals do not prescribe the circumstances under which the Agency may impose disciplinary action, the proposals do not interfere with the Agency's right to discipline employees. The proposals only become operative once the Agency has decided not to exercise its right to discipline an employee immediately. For example, Proposal 2(a) only requires the Agency to reinstate the employee's right to appeal the underlying discipline in the event the Agency determines to discipline the employee and does not restrict the Agency's imposition of discipline. Proposal 2(f), which precludes the Agency from considering an employee's entering into a last chance agreement as an admission of wrongdoing, does not prevent the Agency from imposing discipline or from considering evidence that it has obtained in support of its disciplinary action. Proposal 2(b), which provides that last chance agreements shall be for just cause and will not be arbitrary, capricious, an abuse of management discretion based on disparate treatment or violative of fundamental fairness or public policy, and Proposal 2(g), which provides that the probationary period contained in the last chance agreement would not exceed one year, do not prescribe the circumstances in which management may impose discipline. These provisions apply only after the Agency has determined not to impose immediate discipline. Finally, Proposal 7, which requires the Agency to maintain evidence that employees were advised as to their right to consult the Union before entering into a last chance agreement has no effect on the Agency's right to discipline employees.

Even assuming that Proposals 2(a), 2(b), 2(g) and 7 involve management's right to discipline employees, the proposals concern negotiable procedures which the Agency will observe when offering employees last chance agreements. See West Point, 29 FLRA at 1540 (proposals that specified the contents of an "advance notice" and "final decision" regarding disciplinary actions were found to be negotiable procedures under section 7106(b)(2) of the Statute because agency was not prevented from exercising its rights after expiration of procedural time frame).

b. Proposals 2(d) and 2(e)

Unlike Proposal 1 and the other sections of Proposal 2, Proposals 2(d) and (e) preclude the Agency from taking disciplinary action under certain circumstances and, therefore, directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

In general, a proposal to stay a disciplinary suspension or removal pending the completion of the grievance and arbitration process is negotiable as a procedure under section 7106(b)(2). American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom., AFGE v. FLRA, 455 U.S. 945 (1982). However, under 5 U.S.C. § 7513(b)(1), the usual 30-day advance notice of an intent to take action against an employee is suspended when the agency has reasonable cause to believe that the employee has committed a crime punishable by imprisonment. In National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105, 1106 (1986) (Eastern Mapping), the Authority found that proposals which do not acknowledge management's authority in such situations substantively interfere with the right to take disciplinary action and do not constitute negotiable procedures under section 7106(b)(2). Compare American Federation of Government Employees, Department of Education Council of Locals and U.S. Department of Education, 36 FLRA 130 (1990) (Proposal 2, which established an indefinite stay of disciplinary action but permitted the agency to take immediate disciplinary action in the circumstances set forth in 5 U.S.C. § 7513(b)(1), did not interfere with management's right to discipline employees). Inasmuch as the staying of the implementation of the last chance agreement would in effect stay the proposed underlying discipline, Proposal 2(d) would preclude the Agency from imposing the proposed disciplinary action pending appeal through the negotiated grievance procedure. Thus, Proposal 2(d), by staying all disciplinary actions for that period of time, precludes the Agency from immediately removing an employee regardless of the reason for the discipline or adverse action. For this reason, Proposal 2(d) directly interferes with the Agency's right to take discipline against, and to remove, employees.

We reject the Union's contention that Proposal 2(d) constitutes an appropriate arrangement within the meaning of 7106(b)(3) of the Statute.

In determining whether a proposal is an appropriate arrangement under section 7106(b)(3), we will determine, as a threshold matter, whether a proposal or provision is an arrangement for employees adversely affected by the exercise of management rights by examining "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." Kansas Army National Guard, 21 FLRA at 31. Proposals addressing "purely speculative or hypothetical concerns, or which are otherwise unrelated to management's exercise of its reserved rights[,]" will be excluded from consideration as appropriate arrangements. American Federation of State, County and Municipal Employees, Local 3097 and Department of Justice, 24 FLRA 453, 458 (1986) (Chairman Calhoun dissenting). Where an adverse effect is reasonably foreseeable, and the disputed provision or proposal is intended to be an arrangement for employees adversely affected, we will proceed to examine whether the provision or proposal excessively interferes with management's rights. National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 841 (1990). In order to determine whether the proposed arrangement contemplated by the proposal or provision is "appropriate," within the meaning of section 7106(b)(3), we must examine whether the negative impact on management's rights is disproportionate to the benefits conferred by the proposal on employees. See Kansas Army National Guard, 21 FLRA at 33.

Initially, we find that Proposal 2(d) constitutes an arrangement for adversely affected employees under section 7106(b)(3). The proposal affords employees the right to stay the implementation of a last chance agreement and thereby to forestall the effect of the underlying disciplinary action until the employee has exhausted his or her appeal rights. Thus, it would ameliorate the adverse effects on employees of management's exercise of its statutory right to remove employees for cause.

However, we find that the proposal does not constitute an appropriate arrangement. While the proposal would ameliorate the adverse effects on employees of management's right to remove employees for cause, the proposal would abrogate management's right under 5 U.S.C. § 7513(b)(1) to remove an employee when the Agency has a reasonable cause to believe that the employee has committed a crime punishable by imprisonment. Thus, the proposal would have a significant deleterious effect on management's right to impose disciplinary actions, including removing employees. On balance, we find that the negative impact on management's right is disproportionate to the benefit employees would receive from the proposed arrangement. Eastern Mapping, 21 FLRA at 1107-08.

A similar finding is appropriate for Proposal 2(e). Proposal 2(e) would require the Agency to expunge from the bargaining unit employee's personnel records the disciplinary or adverse action that led to the last chance agreement. To the extent that this proposal would restrict the evidence the Agency may consider to support a subsequent disciplinary action, the proposal interferes with the Agency's right to discipline employees. See Portsmouth Federal Employees Metal Trades Council and Portsmouth Naval Shipyard, 34 FLRA 1150, 1157 (1990) (Portsmouth Naval Shipyard) (proposal preventing the agency from supporting disciplinary action with employee's admission made during a discussion in which management failed to inform the employee of the right to union representation directly interfered with management's right to discipline); and American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1047-50 (1988), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408/88-7470 (9th Cir. Feb. 7, 1989) (provisions restricting the type of evidence the agency could use to establish that discipline was warranted interfered with management's right to discipline employees).

In finding that Proposal 2(e) interferes with the Agency's right to discipline employees, the Authority rejects the Union's contention that the proposal only implements the requirements of the Privacy Act, 5 U.S.C. § 552a(e)(5). While that section provides that an agency shall maintain all records used by the agency in making determinations about any individual with such accuracy, relevance, timeliness and completeness as is reasonably necessary to assure fairness to the individual in the determination, the Union has not established, nor is it apparent from the record, that the inclusion of the underlying disciplinary record would violate that provision of the Privacy Act. Thus, we see no reason why, consistent with the Privacy Act and Proposal 2(e), reference may not be made to the underlying disciplinary action in employees' personnel records. Those records also may accurately reflect that a last chance agreement was entered into in lieu of the proposed disciplinary action. Accordingly, we find unpersuasive the Union's claim that the inclusion of last chance agreements would violate the Privacy Act.

Contrary to the Union's argument, we find that Proposal 2(e) is not an appropriate arrangement under section 7106(b)(3) of the Statute.

Initially, we find that the proposal constitutes an arrangement because it would: (1) protect employees who have entered into a last chance agreement from having the underlying discipline considered in any subsequent personnel action; (2) ameliorate the adverse effects on employees of management's recording of disciplinary action taken against employees in employees' personnel records; and (3) benefit employees by removing alleged disciplinary actions from personnel records so that those actions could not be considered in the event that an employee were subject to discipline in the future.

However, we find that Proposal 2(e) is not an appropriate arrangement. Although the proposal provides certain benefits to employees, the effect of the proposal on the right of management to take disciplinary action in the future is substantial. The proposed arrangement establishes a blanket prohibition on the consideration of prior disciplinary actions which resulted in last chance agreements when management determines the propriety of a subsequent disciplinary action. In some situations, where the prior discipline was crucial to supporting a subsequent disciplinary action, the proposal could prevent the imposition of an otherwise warranted disciplinary action. See Portsmouth Naval Shipyard, 34 FLRA at 1159. On balance, we find that the benefit to employees is outweighed by the severe limitation it places on the Agency's ability to discipline employees. Accordingly, Proposal 2(e) does not constitute an appropriate arrangement negotiable under 7106(b)(3) of the Statute.

2. Proposal 2(c) Violates 5 U.S.C. §§ 7121(d) and (e)

Without exception, Proposal 2(c) grants employees the right to challenge a last chance agreement through the negotiated grievance procedures. This would include enforcement of last chance agreements in cases originally filed with the MSPB in which the MSPB retains jurisdiction. Such an event may occur when an employee enters into a settlement agreement with the Agency after the employee elected to pursue an appeal of the disciplinary action before the MSPB. Under the proposal, any dispute as to whether the employee or Agency violated the terms of that settlement agreement could be appealed under the grievance procedure, notwithstanding the fact that the MSPB had retained jurisdiction over the case.(5)

To the extent that Proposal 2(c) includes cases in which parties before the MSPB have entered their last chance agreements into the record, and the MSPB has retained jurisdiction for enforcement purposes, it is inconsistent with section 7121(d) and (e). Those sections require an aggrieved employee to elect between the statutory appeals procedures or the negotiated grievance procedure where the matter could be raised in either forum. Once an employee elects to pursue a challenge to an agency's action in one forum, he/she is precluded from pursuing the matter in the other forum. Proposal 2(c), in effect, would permit employees to circumvent this requirement in cases where the MSPB has retained jurisdiction by allowing the employees to pursue the same matters through another forum, the grievance procedure.

In ruling that Proposal 2(c) is inconsistent with sections 7121(d) and (e), we find unpersuasive the Agency's reliance on the Authority's decision in U.S. Army Armament Research, Development, and Engineering Center (ARDEC), Dover, New Jersey and National Federation of Federal Employees (NFFE), Local 1437, 24 FLRA 837 (1986). The issue before the Authority in that case was whether it had jurisdiction to review an arbitration award. The Authority held that it did not have jurisdiction because the arbitrator's interpretation and application of a prior settlement agreement was not separate and distinct from the original issue of the grievant's removal. The issue in the instant case is not one of proper jurisdiction, but whether an employee who had previously exercised a right to pursue his/her dispute in a given forum may then elect to pursue the matter in another forum.

Accordingly, we find that Proposal 2(c) is outside the duty to bargain because it is inconsistent with section 7121(d) and (e) of the Statute.

V. Proposals 3 and 4

Proposal 3

Prior to offering bargaining unit employees a "Last Chance" or "Pre-Removal" agreement, the Local President, or designee will be notified and given an opportunity to be present in accordance with the Labor Statute.

Proposal 4

After such notification and meeting in accordance with item three (3) above, the Local President, or designee may bargain the terms and conditions of the "Last Chance" or "Pre-Removal" agreement on behalf of the bargaining unit employee or employees in question in that particular case.

A. Positions of the Parties

1. Agency

For the reasons previously stated, the Agency argues that Proposals 3 and 4 interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency contends that the proposals also interfere with employees' rights to be represented by a representative of their own choosing under sections 7102, 7114(a)(5), 7116(a)(1) and (b)(1), and 7121(b)(3)(B) of the Statute, 5 U.S.C. § 7701(a), and 5 C.F.R. §§ 752.404(e) and (f). The Agency states that "employees have the right to raise matters involving prohibited personnel practices and matters covered under 5 U.S.C. §§ 4303 or 7512 in forums other than the negotiated grievance procedures. When doing so, they have the right to be represented by an attorney or other representative, other than the exclusive representative, of their own choosing. Further, they may represent themselves when raising such matters through negotiated grievance procedures." Statement of Position at 11. The Agency argues that only employees may waive these rights.

The Agency argues that the proposals have the effect of making the Union the employee's representative in the involved disciplinary action. Id. at 12. Such agreements, the Agency argues, "go to the heart of an employee's efforts to avoid the underlying disciplinary action and thus negotiations over such agreements are an integral part of the function of the employee's representative. The requirement that the Union be the employee's representative abrogates the employee's rights set forth above[.]" Id.

The Agency argues further that by granting the Union a contractual right to be involved in last chance agreements the proposals assure the Union's access to an employee's entire disciplinary file. Thus, it claims, the proposals violate the employee's privacy rights, which are implicitly protected by section 7102 of the Statute. The proposals, the Agency argues, preclude the Agency from balancing the respective interests of employees and the representational rights of the Union on a case by case basis, as required to protect employees' rights under section 7102 and to comply with the privacy requirements under the Privacy Act and the Freedom of Information Act ("FOIA").

2. Union

The Union argues that the Agency has completely misunderstood the thrust of Proposals 3 and 4. The Union states that the proposals do not interfere with employees' statutory right to represent themselves or to be represented by someone of their own choosing. The Union notes that if the last chance agreement is appealed within the negotiated grievance procedure, the employee is entitled to be represented by only the Union or someone chosen by the Union. However, if the last chance agreement "is raised in other contexts such as during the proposal phase of an adverse action or in the context of an MSPB appeal or an EEO complaint, the Union recognizes and agrees that the employee can refuse Union representation." Response at 14. The Union asserts that the intent of the proposal is to provide the Union the opportunity to meet with the employee at the time the agreement is first raised. If the employee declines the Union's representation, "the employee and the Agency would then be free to negotiate whatever terms and conditions they desired into a last chance agreement so long as the minimum provisions required by the Union's proposed memorandum of understanding were included." Id. at 15.

In response to the Agency's argument that the proposals violate the Privacy Act, the Union argues that the last chance agreement meetings constitute formal discussions or "Weingarten sessions," which the Union is entitled to attend under section 7114(a)(2)(A) and (B) of the Statute. Id. at 13. The Union further argues that such meetings without Union representation could constitute an unlawful bypass of the Union. Id.

B. Analysis and Conclusions

1. Management's Right to Discipline Employees

For the reasons stated in regard to Proposals 1, 2(a), 2(b), 2(f), 2(g), and 7, we reject the Agency's argument that Proposals 3 and 4 interfere with management's right to discipline employees. Neither proposal prescribes whether, and under what circumstances, discipline would be imposed. The decision to impose discipline, and the type of discipline imposed remains with the Agency, under the terms of both proposals.

Accordingly, we find that Proposals 3 and 4 do not interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

2. Employees' Representational Rights

Proposal 3 grants the Union the right of notification regarding the Agency's intent to offer an employee a last chance agreement and the right to be present when the offer is made. The proposal does not grant the Union any right to actively participate in the negotiation of last chance agreements and, therefore, does not grant the Union the right to negotiate on behalf of the employee. The proposal only grants the Union a contractual right to be notified of, and present at, meetings when an employee is offered a last chance agreement. Therefore, the proposal does not violate employees' rights to choose their representatives under the Statute.

Inasmuch as Proposal 4 grants the Union the right to negotiate the substantive terms of a last chance agreement, however, it requires that the Union act on behalf of the employee in that regard. For the following reasons, we find that Proposal 4 is inconsistent with sections 7114(a)(5)(A) and 7121(b)(3) of the Statute and, thus, is outside the duty to bargain.

Under section 7121(b)(3)(B) of the Statute, employees have the right to represent themselves in grievances pursued through the negotiated grievance procedure. National Federation of Federal Employees, Local 1001 and Department of the Air Force, Vandenberg Air Force Base, California, 15 FLRA 804 (1984). Under section 7114(a)(5)(A) of the Statute, in matters not pursued through the negotiated grievance procedure, employees have the right to choose their own representatives. Id.; see also American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command-Redstone Commissary, 27 FLRA 69, 82-83 (1987).

Under the terms of Proposal 4, however, employees would not be able to exercise these rights because the proposal grants the Union the right to negotiate the substantive terms of last chance agreements. Inasmuch as the negotiation of a last chance agreement may occur while the discipline is being challenged through the negotiated grievance procedure, or through the statutory appeals procedures, the requirement that the Union negotiate the terms of such an agreement would deprive employees of their right to choose their own representatives or to represent themselves.

The Union's stated intent regarding the meaning of the proposal does not warrant a different conclusion. First, the Union's assertion that the Union has the exclusive right to represent an employee during the negotiated grievance procedure is inconsistent with law. As noted above, employees have the right to represent themselves in the negotiated grievance process. Secondly, the Union's statement of intent that employees may reject Union representation is not consistent with the proposal's language. Without exception, Proposal 4 specifically grants the Union the right to negotiate the terms of last chance agreements.

Where a union's interpretation of its proposal is inconsistent with the plain wording of the proposal, we will base our decision on the interpretation of the proposal that is consistent with the wording. National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 35 FLRA 26, 28 (1990).

Accordingly, we find that Proposal 4, by prohibiting employees from exercising their rights to choose a representative other than the Union or to represent themselves in the negotiation of the terms of a last chance agreement, is inconsistent with sections 7114(a)(5)(A) and 7121(b)(3)(B).(6)

3. Union Representational Rights Under Sections 7114(a)(2)(A) and (B) of the Statute

The Union argues that it has the statutory right to attend meetings in which the Agency offers employees a last chance agreement because such meetings between the Agency and the individual employee constitute formal discussions or "Weingarten sessions" under sections 7114(a)(2)(A) and (B) of the Statute. For the reasons below, we do not agree with the Union's contention.

In U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York) and American Federation of Government Employees, AFL-CIO, Local 3882, 29 FLRA 584 (1987) (Bureau of Prisons) aff'd sub nom. American Federation of Government Employees, Local 3882 v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989), the Authority found that an oral reply meeting in response to a proposed adverse action did not constitute a formal discussion under section 7114(a)(2)(A) of the Statute. In reaching its finding, the Authority discussed fully the intent and application of section 7114(a)(2)(A) of the Statute. The Authority restated its holding that "in order for the section 7114(a)(2)(A) right to exist, (1) there must be a discussion; (2) which is formal; (3) between one or more agency representatives and one or more unit employees or their representatives; (4) concerning any grievance or personnel policy or practices or other general condition of employment." Bureau of Prisons, 29 FLRA at 588-89. The Authority further held that "in examining each of these elements, we will be guided by that section's intent and purpose--to provide the union with an opportunity to safeguard its interests and the interests of employees in the bargaining unit--viewed in the context of a union's full range of responsibilities under the Statute." Id. at 589. In finding that the meeting did not involve a grievance within the meaning of section 7114(a)(2)(A), the Authority found that inasmuch as the agency had not taken final action, the employee did not have a basis for filing a statutory or contractual appeal of the agency's actions. There being no complaint, and thus no grievance, by the employee, the Authority concluded that the union did not have a right to be represented under 7114(a)(2)(A). Compare U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois, 32 FLRA 465 (1988) (a meeting provided for by an enforceable term and condition of the settlement and dismissal of an MSPB case concerned a grievance within the meaning of section 7114(a)(2)(A)).

In determining whether a meeting concerns "any personnel policy or practices or other general condition of employment" within the meaning of section 7114(a)(2)(A) of the Statute, the Authority has held that the meaning of "any personnel policy or practices" involves "general rules applicable to agency personnel, not discrete actions taken with respect to individual employees." Bureau of Field Operations, Social Security Administration, San Francisco California, 20 FLRA 80, 83 (1985). Further, in discussing "other general condition of employment," the Authority has concluded "that formal discussions are limited to those discussions (except grievance meetings) 'which concern conditions of employment affecting employees in the unit generally.'" Id. at 83.

Based on these standards, Proposal 3 does not concern a grievance or involve a personnel policy or practices or other general conditions of employment. As was the case in Bureau of Prisons, Proposal 3 would include meetings in which the Agency has not taken final action and, thus, would include meetings which did not concern a grievance within the meaning of section 7114(a)(2)(A). Inasmuch as the last chance agreement meeting would involve only the discrete action taken with respect to an individual employee, the proposed meeting would not involve a personnel policy or practices or other conditions of employment within that section.

For these reasons, we find that meetings concerning last chance agreements do not constitute formal discussions under section 7114(a)(2)(A) of the Statute.

We also find unpersuasive the Union's argument that the meetings constitute "Weingarten sessions" under section 7114(a)(2)(B) of the Statute. Section 7114(a)(2)(B) provides that an exclusive representative of an appropriate unit shall be given the opportunity to be represented at any examination by the agency in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action and the employee requests representation. This right under section 7114(a)(2)(B) only exists if all of the conditions are met. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594, 602 (1987).

We find that meetings involving last chance agreements do not constitute an examination in connection with an investigation. The purpose of section 7114(a)(2)(B) is to create representational rights for Federal employees similar to the rights provided by the National Labor Relations Board (NLRB) in interpreting the National Labor Relations Act (NLRA). See 124 Cong. Rec. 29184 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, H.R. Comm. Print No. 7, 96th Cong., 1st Sess. 926 (1979) (Legislative History), where Congressman Udall explained that the purpose of the House Bill provisions which led to enactment of section 7114(a)(2)(B) was to reflect the Supreme Court's decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) (Weingarten). Under Weingarten, the right to representation at an examination is intended to benefit an employee who is called into a meeting with his or her employer in connection with an investigation. Here, the meeting at issue would not be an examination in connection with an investigation. Rather, it involves a meeting in which the Agency would advise an employee of its intent to hold in abeyance disciplinary action if the employee satisfies certain conditions.

In addition, the right to union representation only attaches if an employee makes a valid request for union representation. Norfolk Naval Shipyard, Portsmouth, Virginia, 35 FLRA 1069 (1990). Therefore, even if the meeting at issue could be viewed as a "Weingarten session," to the extent that Proposal 3 would require union representation in the absence of a request by the employee for such representation, the proposal would fall outside the ambit of section 7114(a)(2)(B) of the Statute.

b. Proposal 3 does not violate the Privacy Act

As the Authority has held that a union may negotiate contractual representational rights that exceed those established under the Statute, Proposal 3 is within the duty to bargain unless it is inconsistent with law, rule or regulation. See American Federation of Government Employees, AFL-CIO, Local 3354 and U.S. Department of Agriculture, Farmers Home Administration, Finance Office, St. Louis, Missouri, 34 FLRA 919 (1990). For the reasons discussed below, we find that it does not violate the Privacy Act, as alleged by the Agency.

The Privacy Act, 5 U.S.C. § 552a, restricts the disclosure, and redisclosure, of personally identifiable records. Subsection (b) specifically restricts disclosure of "any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains," unless the disclosure falls within one of the specified exceptions. 5 U.S.C. § 552a(b).

Records required to be disclosed under FOIA constitute an exception to the prohibition against disclosure. 5 U.S.C. § 552a(b)(2). The FOIA provides that unless the disclosure of information in personnel and medical files and similar files would constitute a "clearly unwarranted invasion of personal privacy," the information must be disclosed. 5 U.S.C. § 552(b)(6).

In U.S. Department of Justice and U.S. Immigration and Naturalization Service, 37 FLRA No. 111 (1990) (INS), the Authority recently analyzed under the Privacy Act a provision requiring an activity to furnish to a union, when that union is not designated as the representative in a disciplinary or adverse action, copies of notices of proposed actions, final actions taken and the decision(s) on any subsequent appeals. The Authority found that such a "blanket unsanitized disclosure of all proposed and final disciplinary and adverse actions" was prohibited by the Privacy Act. Id., slip op. at 19. The Authority did not apply this prohibition, however, to specific unsanitized information, such as the type of information that a union might request with regard to the processing of an individual grievance. Id. In this regard, the Authority cited cases in which such information was found to be disclosable. See Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 25 FLRA 1060 (1987) (AAFES), and Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 28 FLRA 202 (1987).

In our view, the instant case does not fall within the ambit of the Privacy Act. In the instant case, contrary to the Agency's contention, Proposal 3 would not assure the Union's access to an employee's entire disciplinary file or require the disclosure of any portion of an employee's personnel records. The proposal only grants the Union the right to be present when a last chance agreement is offered to an employee. Although information in the employee's personnel record may be revealed in such a meeting, the Privacy Act only governs the disclosure of records by Federal agencies. King v. Califano, 471 F. Supp. 180, 181 (D.D.C. 1979) (personal opinion stated from memory does not constitute a "record" within the meaning of the Privacy Act). See also Federal Deposit Insurance Corporation v. Dye, 642 F.2d 833, 836 n.5 (5th Cir. 1981) ("remarks" do not constitute "records" under the Privacy Act). Therefore, as the proposal does not require the disclosure of "records" within the meaning of the Privacy Act, the Union's presence during such meetings does not violate the Privacy Act.

Even assuming that the information disclosed during such a meeting constitutes "records" within the meaning of the Privacy Act, we find that the release of such information does not constitute an unwarranted invasion of privacy and, thus, is disclosable under the FOIA and the Privacy Act. Balancing the public's interest in ensuring that the Agency complies with its responsibilities in administering its disciplinary system in a fair and evenhanded manner and the employees' privacy interests, the public's interest in disclosure outweighs the employees' interest. See AAFES, 25 FLRA at 1062-63; and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990). This case is distinguishable from INS, in which the Authority found a provision to be in conflict with the Privacy Act because it required a broad disclosure of all disciplinary notices, without regard to a showing of specified need. In contrast, any disciplinary documents disclosed during a last chance agreement meeting would relate solely to the employee affected by that agreement and to factors in the employee's record that are relevant to that agreement. Accordingly, Proposal 3 does not require the far-reaching and nonparticularized invasion into the privacy of unit employees that was the case in INS.

Even if disclosure is prohibited under exception (b)(2) of the Privacy Act, it is authorized under exception (b)(3), which permits disclosure of information for a "routine use." Disclosure of an employee's personnel record for purposes of discussing the terms of a last chance agreement is relevant and necessary to the Union's exercise of its representational rights and to the Union's performance of its representational obligations to employees concerning personnel policies, practices, and matters affecting working conditions. Id. at 540-41. As the employees' exclusive representative, the Union has an institutional obligation to "[represent] all the members of the bargaining unit." [Emphasis in original.] American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986).

Accordingly, we find that Proposal 3 is within the duty to bargain.

VI. Proposal 5

Local negotiations over "Last Chance" or "Pre-Removal" agreements shall be in accordance with the Master Labor Agreement and Labor Statute. That is; the Local President, or designee may utilized [sic] the services of the Federal Mediation and Conciliation Service and the Federal Service Impasses Panel in the event an agreement cannot be reached with local AFLC management due to an impasse.

The proposal's language is unclear. The wording of the proposal does not permit us to determine what the Union means by "local negotiations over last chance agreements" and the record does not contain a statement as to the Union's intent. Thus, we are unable to determine, for example, whether the negotiations referred to in the proposal would relate to the specific terms of particular last chance agreements or would address general concerns regarding such agreements. Moreover, the record is unclear as to which parties would be involved in these negotiations. Consequently, the proposal is not sufficiently specific and delimited to provide a basis for determining its negotiability.

The Authority has consistently held that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet this burden acts at its peril. See American Federation of Government Employees, AFL-CIO, Local 3760 and Department of Health and Human Services, Social Security Administration, 32 FLRA 813, 816 (1988), and the cases cited there.

Accordingly, as we find that Proposal 5 is not sufficiently specific and delimited to provide us with a basis for determining its negotiability, we will dismiss the petition with respect to this proposal.

VII. Proposals 6, 8 and 9

Proposal 6

Local "Last Chance" or "Pre-Removal" agreements shall not in any way modify or otherwise change this agreement.

Proposal 8

No rights of Employees or Union are waived by this agreement.

Proposal 9

AFGE Council 214 may add, delete, modify or otherwise change the above proposals as deemed appropriate by virtue of knowledge gained through discussion(s)/negotiations or through Section 7114 of the Labor Statute on the subject matter.

A. Management's Right to Discipline Employees

The Agency argues that Proposals 6, 8 and 9 violate management's right to discipline employees. For the reasons discussed in regard to Proposals 1, 2(a), 2(b), 2(f), 2(g) and 7, we reject the Agency's argument that Proposals 6, 8 and 9 interfere with management's right to discipline employees. The proposals simply do not proscribe whether, or under what circumstances, discipline would be imposed.

B. The Agency Has Not Established That Proposals 6, 8 And 9 Are Outside the Duty To Bargain

Proposal 6 provides that local agreements or pre-removal agreements shall not modify the agreement reached by the parties concerning last chance agreements. Proposals 8 and 9, in general, preserve the rights of the Union and employees, including the Union's statutory bargaining rights. The Agency's statement of position failed to address these proposals specifically, other than to argue that they interfere with its right to discipline, an argument that we have dealt with above.

Inasmuch as the Agency has not established, and it is not apparent from the record, that the proposals are nonnegotiable because they interfere with the right to discipline or for any other reason, we find that they are within the duty to bargain.

VIII. Order

The Agency shall upon request, or as otherwise agreed to by the parties, bargain over Proposals 1, 2(a), 2(b), 2(f), 2(g), 3, 6, 7, 8, and 9.(7) The petition for review is dismissed as to Proposals 2(c), 2(d), 2(e), 4 and 5.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. In general, a "last chance agreement" is a contract between an employee and an employer that gives the employee an opportunity to conform his/her conduct or performance to meet the employer's requirements in exchange for the retraction of disciplinary or adverse actions.

2. The Agency raises numerous arguments in support of its contention that the proposals are nonnegotiable. With some exceptions, however, it does not tailor its arguments to specific proposals. In addressing the Agency's arguments as to the proposals' negotiability, the Authority will only address those arguments that reasonably pertain to a given proposal or those proposals that the Agency specifically addresses in its arguments. For purposes of our analysis and discussion, proposals are arranged and discussed in terms of the central issues raised by the parties.

3. The Union has withdrawn the 2nd and 3rd components of Proposal 7. Response at 16. We, therefore, will not address the negotiability of those portions of the proposal.

4. The Authority's finding in this regard is not inconsistent with an agency's obligation to provide certain employees with disabilities a "firm choice" between treatment and termination. Calton v. Department of the Army, 44 M.S.P.R. 477 (1990). As noted above, the proposals do not preclude the Agency's from providing employees a "firm