39:0027(5)NG - - NTEU and Treasury, Office of Chief Counsel, IRS - - 1991 FLRAdec NG - - v39 p27



[ v39 p27 ]
39:0027(5)NG
The decision of the Authority follows:


39 FLRA No 5

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

OFFICE OF CHIEF COUNSEL

INTERNAL REVENUE SERVICE

(Agency)

0-NG-1582

DECISION AND ORDER ON NEGOTIABILITY ISSUES

January 25, 1991

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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of 20 provisions of a negotiated agreement which were disapproved by the General Counsel, Department of the Treasury in the course of agency head review under section 7114(c) of the Statute.

For the reasons stated below, we make the following findings. Provision 1, providing a tie-breaking procedure to settle conflicts among employees who select the same alternate work schedules, is not reviewable by us under the Statute and, consequently, is negotiable. Provision 2, which concerns accommodation of employees' work schedules to their personal religious beliefs, is nonnegotiable because it conflicts with applicable Government-wide regulations.

Provision 3, requiring that management make a reasonable effort to find work elsewhere for employees who must be removed from their usual worksites because of health or safety considerations, is a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Provision 4, under which both management and an injured employee agree to accept the judgment of competent medical authority concerning whether the employee should return to work, does not interfere with management's rights and is negotiable. Provision 5, providing for grants of administrative leave to employees for the purpose of taking professional examinations, directly interferes with management's right to assign work under section 7106(a)(2)(B) and, as the Union does not assert that it is an appropriate arrangement under section 7106(b)(3), is nonnegotiable.

Provisions 6, 7, 8, and 9, authorizing leaves of absence for employees to serve full-time in certain elective and appointive Union positions, are negotiable appropriate arrangements under section 7106(b)(3). The first sentence of Provision 10, obligating the Agency to place employees returning from leaves of absence in the positions they previously held to the extent practical, is nonnegotiable because it directly interferes with the right to assign employees under section 7106(a)(2)(A) and the Union has not asserted that it is an appropriate arrangement under section 7106(b)(3). The second sentence of Provision 10, requiring that returning employees be placed in similar positions if they cannot be placed in the positions they left, is negotiable. Provision 11, describing what information is to be provided to the Union in the event of an impending reduction-in-force, is negotiable.

Provision 12, providing that any evaluation record not furnished to the affected employee within a specified time limit may not be used for evaluation purposes, is an appropriate arrangement under section 7106(b)(3) and is negotiable. Provision 13, prescribing how candidates will be identified for referral for vacancies, does not conflict with an applicable Government-wide regulation and is negotiable. Provision 14, concerning career ladder promotions, is nonnegotiable under section 7117(a)(1) because it is inconsistent with an applicable Government-wide regulation. Provision 15, which prohibits supervisors from rotating or scheduling details with the objective of avoiding payment of compensation at a higher level, is a negotiable appropriate arrangement under section 7106(b)(3).

Provisions 16 and 17, which incorporate within the scope of the negotiated grievance procedure grievances initiated by attorneys employed in the unit concerning disciplinary and adverse actions, are negotiable. Provision 18, providing for the payment of attorney fees to either an employee or the Union where consistent with law, is consistent with the Back Pay Act and is negotiable. Provision 19, governing the appointment of Union stewards, including attorneys in the bargaining unit, and the procedures for granting and use of official time, is negotiable. Provision 19 does not conflict with an Agency regulation for which a compelling need is alleged, nor does it violate any applicable Government-wide regulation. Finally, Provision 20, requiring that Equal Employment Opportunity (EEO) Counselors be selected from a list of nominees prepared by the EEO Advisory Committee, directly interferes with the Agency's right under section 7106(a)(2)(B) to assign work and, as the Union does not assert that it constitutes an appropriate arrangement, is nonnegotiable.

II. Background

This case originated with the filing by the Union of 42 separate petitions for review covering 49 clauses of a negotiated agreement which were disapproved in the course of Agency head review. We consolidated the various petitions for review because they all concerned the Agency head's disapproval of portions of a single negotiated agreement.

Subsequently, in its statement of position, the Agency withdrew its disapproval of two provisions, identified as Article 12, Section 6 and Article 47. Statement of Position at 1 n.1. In its reply brief, the Union withdrew its petition for review of the following: Article 5, Section 6(A)2 and (E); Article 8, Section 8; Article 9, Section 1(A), (B), (C) and (E), Sections 2, 3, and 5(A) and (B); Article 11, Sections 1(A) and 4; Article 12, Section 8; Article 13, Section 2(A); Article 16, Section 5; Article 19, Section 4(A) and (C); Article 22, Sections 1, 2(C), 3(C) and 5(E); Article 23, Sections 1(C) and 4(C); and Article 30, Section 5(C). Finally, in a letter dated January 19, 1990, the Agency stated that the parties had reached agreement over Article 6 and, consequently, that article was no longer in dispute. The Agency's statement was not challenged by the Union. Accordingly, these provisions of the agreement will not be addressed here.

The Union, in its reply brief, alleged for the first time that certain provisions were appropriate arrangements under section 7106(b)(3) of the Statute. Accordingly, we granted the Agency an opportunity to address those allegations and authorized the Union to respond to any arguments advanced by the Agency. Both parties made submissions that have been considered here.

III. Preliminary Matters

A. Validity of Agency Head Determination

The Union submitted a "Motion to Quash Agency Head Disapproval," contending that, to its knowledge, the sole individual within the Department of the Treasury authorized to act for the Department in disapproving locally negotiated agreements is the Departmental Director of Personnel. As the Agency head's disapproval of the disputed provisions was signed by the Department's General Counsel, the Union requests that its motion be granted, "and that the Authority order the Agreement between [the Union] and [the Agency] to be implemented as bargained." Motion to Quash at 2.

Agency heads have the discretion to delegate their authority to disapprove locally negotiated agreements under section 7114(c) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command-Redstone Arsenal Commissary, 27 FLRA 69, 70 (1987). Based on the record before us, we conclude that the General Counsel of the Department of the Treasury was the designated official to review and disapprove the disputed provisions on behalf of the Secretary of the Treasury. The fact that review of local agreements previously may have been assigned to another official does not invalidate the Agency head determination in this case. Accordingly, the Union's motion is denied.

B. Agency's Motion to Strike Certain Union Statements and Documents

The Agency submitted a Motion to Strike Portions of the Union Response, asserting that certain statements and attachments are without foundation. Additionally, the Agency moved to strike two attached regulations issued by the Office of Chief Counsel of the Internal Revenue Service, which, according to the Agency, "are neither agency nor primary national subdivision regulations, [and] have no probative value in the instant case." Motion to Strike Portions of the Union Response at 3.

Having considered the Agency's arguments, we find no basis on which to grant the motion to strike. Instead, it is appropriate, in our view, to evaluate and weigh the disputed statements and attachments during our discussion of the parties' arguments on the specific provisions. See National Federation of Federal Employees, Bureau of Indian Affairs Council and Department of the Interior, Bureau of Indian Affairs, 31 FLRA 3, 8 n.3 (1988). Consequently, the motion is denied.

C. Applicability of Supreme Court's Internal Revenue Service Decision

In Department of the Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990) (Internal Revenue Service), the question presented was whether the agency was required to bargain on a proposal incorporating disputes over the agency's decision to contract out work within the negotiated grievance procedure. In addressing the question, the Supreme Court examined the relationship between management's rights under section 7106(a) of the Statute and the grievance procedure negotiated under section 7121. The Court held that nothing in the Statute, including the negotiated grievance procedure, could affect the agency's right to make contracting out determinations, a right reserved to management by section 7106(a)(2)(B).

Subsequent to the issuance of Internal Revenue Service, the Agency sought leave to file a supplemental submission analyzing the effect of that decision on the section 7106(b)(3) arguments involved in this dispute. The Agency's request was granted and the Union was invited to submit a response to the Agency's supplemental submission. The Union submitted a timely response in the form of a motion to strike the Agency's supplemental submission.

In its submission, the Agency argued:

Based on the Court's holding in Internal Revenue Service, it is clear that no appropriate arrangement negotiated between the parties in accordance with 5 U.S.C. 7106(b)(3) can interfere at all with the exercise of management's reserved rights under [section] 7106(a). Accordingly, the Department submits that the Authority should re-examine and repudiate its "excessive interference" test.

Supplemental Submission at 4 (emphasis in original).

The Union's "motion to strike" was, more accurately, a rebuttal to the Agency's view of the applicability of Internal Revenue Service. The Union asserted that the Supreme Court's decision does not address the relationship between section 7106(a) and 7106(b)(3). Further, the Union noted that American Federation of Government Employees, AFL-CIO, Local 2782 v. FLRA, 702 F.2d 1183 (D.C. Cir. 1983) (AFGE) provided the basis for the Authority's excessive interference test and that Justice Scalia authored the decisions in both Internal Revenue Service and AFGE. The Union concluded that "if the Justice thought that conflict existed between these two decisions and that [Internal Revenue Service] modified, superseded, or overturned his ruling in AFGE, he would have so stated." Motion to Strike at 3.

We find that the Union's "motion to strike" provides no legal or regulatory basis for rejecting the Agency's supplemental submission concerning the impact of Internal Revenue Service on our construction of section 7106(b)(3). However, in agreement with the Union, we find that Internal Revenue Service does not compel a reevaluation of the excessive interference test enunciated in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).

In Internal Revenue Service, the Court, interpreting section 7106(a)(2), held that:

The [Statute] does not empower unions to enforce all "external limitations" on management rights, but only limitations contained in "applicable laws." Or to put the point differently, there are no "external limitations" on management rights, insofar as union powers under º 7106(a) are concerned, other than the limitations imposed by "applicable laws."

110 S. Ct. at 1628-29 (emphasis in original). The Court's analysis of the relationship between management's rights under section 7106(a) and the grievance procedure negotiated under section 7121 did not address the introductory clause of section 7106(a), however. The introductory clause of section 7106(a) provides that the rights enumerated in section 7106(a) are "[s]ubject to subsection (b)" of section 7106. That is, "management's authority to exercise its rights under section 7106(a)(1) of the Statute is itself subject to subsection (b) of section 7106 of the Statute." American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA No. 89, slip op. at 9 (1990) (citing Overseas Education Association v. FLRA, 876 F.2d 960, 965-66 (D.C. Cir. 1989)) (request for reconsideration pending). Accordingly, the Court's holding that nothing in the Statute could affect management's authority to exercise rights granted by section 7106(a) cannot be read to encompass section 7106(b). Moreover, the plain wording of section 7106(a) reflects the congressional intention that the rights contained in subsection (a) not bar bargaining over the matters covered by subsection (b). Hence, we reject the Agency's suggestion that we "repudiate" the "excessive interference" test of Kansas Army National Guard, and we will apply that test to the disputed provisions in this case as appropriate.

IV. Provision 1

Article 5, Section 1(E)

In reviewing submitted work schedules, under any of the available options, supervisors will make a reasonable attempt to accommodate employee preferences. If any employee schedule must be disapproved, because it is determined that approval of all submitted schedules would render the work unit incapable of efficiently and effectively performing its assigned function, the reasons for the disapproval will be discussed with the affected employees, and the employees will be provided the opportunity to submit new schedules before the finalization of work schedules for that work unit. In the event that the resubmission of schedules does not resolve the problem, the parties agree that disputes will be resolved based upon length of government service (service computation date). [Only the underlined portion is in dispute.]

A. Positions of the Parties

The Agency argues that the disputed portion of Provision 1 violates management's right to assign work under section 7106(a)(2)(B) of the Statute and that it is not an appropriate arrangement under section 7106(b)(3). According to the Agency, the provision "leaves no room to accommodate management's need for the services of particular employees with particular skills or qualifications to work at particular times." Statement of Position at 2.

The Union asserts that the disputed portion of Provision 1 "sets forth a procedure to resolve situations when multiple employees request the same AWS [Alternate Work Schedule] option." Reply Brief at 2. The Union also notes that the Authority has found that "tiebreaking from among qualified employees based on seniority is negotiable." Id. at 3. The Union asserts that the proposal does not limit the Agency's ability to assign a particular employee if there is a need for that employee's particular skills and abilities.

B. Analysis and Conclusions

Based on the parties' submissions before us, we conclude that only the last sentence of Provision 1 is in dispute. That sentence provides for a tie-breaking procedure, based on Government service computation date, to settle conflicts among employees who choose the same AWS work schedules.

The Federal Employees Flexible and Compressed Work Schedules Act (Work Schedules Act) provides that an exclusive representative may negotiate with an agency for the establishment of flexible and compressed work schedules for bargaining unit employees. 5 U.S.C. º 6130(a)(1). As reflected in its legislative history, the Work Schedules Act is intended to include within the collective bargaining process "the institution, implementation, administration and termination of alternative work schedules[.]" S. Rep. No. 365, 97th Cong., 2d Sess. 14-15 (1982), reprinted in 1982 U.S. Code Cong. & Admin. News at 565, 576-77. Because alternate work schedules for bargaining unit employees are "fully negotiable" within the limits set by the Work Schedules Act, there are no issues pertaining to the negotiability of those schedules which the Authority will consider under section 7117 of the Statue, insofar as those issues concern an alleged conflict with the Statute. American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA 872, 873-74 (1986).

The Agency argues that the disputed sentence in Provision 1 is nonnegotiable because it conflicts with management's right to assign work under section 7106(a)(2)(B) of the Statute. We conclude that the Agency's position cannot be sustained. Because the disputed sentence establishes a procedure for resolving AWS scheduling conflicts among employees, it concerns the implementation and administration of alternate work schedules. Consequently, the disputed sentence is "fully negotiable" under the Work Schedules Act, and the Agency's argument must be rejected. See, for example, National Federation of Federal Employees, Local 642 and Bureau of Land Management, Lakeview District Office, Lakeview, Oregon, 27 FLRA 862, 867 (1987), enforced sub nom. Bureau of Land Management v. FLRA, 864 F.2d 89, 91-92 (9th Cir. 1988) (rejecting agency's arguments that establishment of AWS schedules conflicts with management rights under the Statute). Accordingly, because the disputed sentence is not reviewable by the Authority under section 7117 of the Statute and the Agency has raised no other arguments concerning its negotiability, we find that Provision 1 is within the Agency's duty to bargain.

V. Provision 2

Article 5, Section 6(A)

An employee whose personal religious beliefs require the abstention from work during certain periods of time, including a religious observance connected with a death in the immediate family, may elect to engage in compensatory overtime work for time lost, without charge to leave, for meeting those religious requirements. Such requests will be granted unless:

1. an employee's presence on the job at a time in question is deemed absolutely essential and there is no suitable replacement[.]

A. Position of the Parties

The Agency argues that subsection 1 conflicts with a Government-wide regulation, 5 C.F.R. º 550.1002. Statement of Position at 3. Additionally, the Agency asserts that subsection 1 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Union did not address Article 5, Section 6(A) in its reply brief.

B. Analysis and Conclusions

In its reply brief, the Union withdrew "Article 5, Section 6A 2 and E." Reply Brief at 1. However, the Union did not withdraw subsection 1 of Section 6A. Therefore, we conclude that subsection 1 remains in dispute.

5 C.F.R. º 550.1002(a) provides that employees "whose personal religious beliefs require the abstention from work during certain periods of time may elect to engage in overtime work for time lost for meeting those religious requirements." Section (b) requires that agencies shall grant compensatory time off "[t]o the extent that such modifications in work schedules do not interfere with the efficient accomplishment of an agency's mission[.]"

Subsection 1 of Article 5, Section 6(A) would require that the Agency grant compensatory time off unless an employee's presence is "absolutely essential and there is no suitable replacement[.]" The Union offered no clarification of subsection 1. An examination of the plain language of subsection 1 shows that the standard established for denying leave is more stringent than the standard in 5 C.F.R. º 550.1002(b). Accordingly, we conclude that subsection 1 conflicts with 5 C.F.R. º 550.1002(b). 5 C.F.R. º 550.1002(b) constitutes a Government-wide regulation. See, for example, National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1509 (1987), review granted in part and denied in part as to other matters sub nom. Department of Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989). Therefore, Article 5, Section 6(A), subsection 1 is outside the Agency's duty to bargain under section 7117(a) of the Statute. In view of our conclusion, it is unnecessary to address the Agency's additional contention that subsection 1 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

VI. Provision 3

Article 8, Section 1(C)

Whenever it becomes necessary to remove an employee from a work area because of conditions in the work area that pose a threat to the employee's health or physical safety, the Office will make a reasonable effort to find work for that employee elsewhere.

A. Positions of the Parties

The Agency argues that Pr ovision 3 violates management's right to assign work under section 7106(a)(2)(B) because "this right also incorporates the right of management not to assign any work to an employee." Statement of Position at 10. In addition, the Agency asserts that the qualifying language "reasonable effort" does not remove "the limitation imposed on management's exercise of its right to assign or not assign work." Id. at 10-11.

In response to the Union's argument that Provision 3 is an appropriate arrangement, the Agency argues that "the initiating or causal event . . . is not the exercise of a management right, but instead a fortuitous event: the occur[r]ence of unsafe conditions in a work area." Supplemental Statement of Position at 1. The Agency asserts that an employee's removal from a particular worksite would not necessarily have an adverse impact on an employee. To find that Provision 3 is an appropriate arrangement would require, according to the Agency, the "unsupported assumption that removal of an employee from a particular worksite necessarily will lead to dire events such as furlough or removal from the position." Id. at 2. The Agency argues that an employee may be removed from a worksite because an employee "decline[s] to perform duties based on threats to health and safety[]" under Article 8, Section 3 of the parties' collective bargaining agreement. Id. at 2 n.1.

The Union does not dispute the Agency's claim that Provision 3 interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Rather, the Union argues that Provision 3 "constitutes an appropriate arrangement, for employees adversely affected by the exercise of a management right under 5 U.S.C. 7106(b)(3) to be followed in the event the employees work area is restricted due to unsafe or unhealthy conditions." Reply Brief at 7. Initially, the Union notes that the provision "will not go into effect unless the employee's work can only be accomplished in the particular work area." Id. In that event, the Union argues that Provision 3 protects an employee from being furloughed or, if the danger is permanent, from being removed from his or her position. The Union also notes that Provision 3 "directly addresses the exercise of management's right to assign (or not assign) work or the location the employee performs the work." Union's Supplemental Reply Brief at 2. However, the Union asserts that the effect on the Agency's right to assign work is minimal. According to the Union, the Agency is only "obligated to attempt to locate work for the employees, for which they are qualified to perform[.]" Reply Brief at 9. The Union argues that "[i]f no work is available, [the Agency] has met its burden." Id.

B. Analysis and Conclusions

Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine whether duties will be assigned. The Authority has consistently held that proposals which require an agency to assign work to an employee directly interfere with management's right to assign work. See, for example, International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 36-38 (1990) (Portsmouth Naval Shipyard) (provision requiring agency to make every effort to place an employee held to interfere directly with management's rights to assign employees and work).

According to the Union, Provision 3 "directly addresses the exercise of management's right to assign (or not assign) work or the location the employee performs the work." Union's Supplemental Reply Brief at 2. The Union's explanation is consistent with the wording of Provision 3 which would limit the Agency in determining whether to assign work to a displaced employee. Although Provision 3 would only require the Agency to make "a reasonable effort" to find work for an employee, the addition of such qualifying language does not remove the limitation placed on management's exercise of its right to assign work. See, for example, Portsmouth Naval Shipyard, 35 FLRA at 38; Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 755 (1987) (DoDDs), aff'd as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988) (proposal requiring agency to make "every reasonable effort" to obtain necessary equipment, facilities, and supplies held to interfere with the agency's right to determine the technology, methods, and means of performing work). Consequently, by requiring that management make a reasonable effort to find work for an employee who is removed from his work area, Provision 3 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Although Provision 3 directly interferes with management's right to assign work, it is negotiable if it is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. In determining whether a provision is an appropriate arrangement for adversely affected employees, the Authority first determines whether the provision is intended to be an "arrangement" for employees adversely affected by management's exercise of a reserved right. This determination is made 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. West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1012 (1990) (quoting American Federation of State, County and Municipal Employees, Local 3097 and Department of Justice, 24 FLRA 453, 458 (1986) (Chairman Calhoun dissenting)). Once the proposal is determined to be an "arrangement," the Authority determines whether the proposed arrangement is "appropriate," or whether it is inappropriate because it excessively interferes with management's rights. Kansas Army National Guard, 21 FLRA at 31-33.

The Union asserts that it intends Provision 3 to "constitute[] an appropriate arrangement . . . to be followed in the event the employees['] work area is restricted due to unsafe or unhealthy conditions." Reply Brief at 7. The Agency, however, asserts that it would be a "fortuitous" event which would require the removal of an employee from his or her work area rather than the exercise of a management right. Supplemental Statement of Position at 1. We conclude that the decision to remove an employee from a work area would be made by the Agency in exercising its right to assign work under section 7106(a)(2)(B), and that Provision 3 is intended to address the reasonably foreseeable negative effects on the employee as a consequence of exercising that right. Consequently, we find that Provision 3 is an "arrangement" within the meaning of section 7106(b)(3).

Having concluded that Provision 3 is an "arrangement," we now consider whether it is "appropriate" within the meaning of section 7106(b)(3). See 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) (Naval Facilities Engineering Command) ("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."). In Kansas Army National Guard, 21 FLRA at 33, the Authority stated that it would consider whether the negative impact on management's rights is disproportionate to the benefits to be derived from the proposed arrangement. Applying that standard, we must determine whether Provision 3 excessively interferes with management's right to assign work.

According to the Union, if an employee is removed from a work area, the adverse effect on an employee could be "significant." Reply Brief at 7. The Union argues that the Agency "could potentially furlough the employee or even remove the employee." Supplemental Brief at 2. On the other hand, the effect on the Agency is minimal, according to the Union, because Provision 3 requires only that the Agency "attempt to locate work" that a displaced employee is qualified to perform. Reply Brief at 9.

We agree with the Union's argument that the burden placed on the Agency by Provision 3 is minimal. As the Union asserts, nothing in Provision 3 requires the Agency to assign work to an employee unless work is available and the employee is qualified to perform it. Furthermore, Provision 3 provides only that the Agency make "a reasonable effort" to place employees who are removed from their work areas because of unsafe or unhealthy conditions. Thus, the limitation in Provision 3 on management's right to determine whether to assign work is slight.

On the other hand, by requiring that the Agency try to place these employees, Provision 3 offers a significant benefit to employees by making it less likely that these employees will be furloughed or removed. We conclude that, on balance, the benefit to employees from Provision 3 outweighs the burden placed on the Agency. Consequently, we find that Provision 3 does not excessively interfere with management's rights and is an appropriate arrangement negotiable under section 7106(b)(3) of the Statute.

VII. Provision 4

Article 8, Section 7

If an injured employee is sent to a medical facility for treatment, the Office and the affected employee agree[s] to accept the determination made by competent medical authority at the facility as to whether the employee should return to work.

A. Positions of the Parties

The Agency argues that Provision 4 interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. According to the Agency, Provision 4 "provides that a determination made by a medical authority outside the agency is binding on the agency." Statement of Position at 11. The Agency also asserts that Provision 4 is not an appropriate arrangement under section 7106(b)(3) because "it precludes the assignment of any duties on the assumption that if they were assigned, an adverse effect would result." Id.

The Union argues that Provision 4 constitutes a negotiable procedure under section 7106(b)(2) of the Statute. According to the Union, Provision 4 is consistent with the Authority's standard in American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105, 1125 (1988) (NAS, Oceana). The Union asserts that Provision 4 "mandates that the agency and employee agree to abide by the decision of a competent medical authority to which the employee is sent[]" by the Agency. Reply Brief at 10.

B. Analysis and Conclusions

Proposals or provisions which require an agency to observe medical restrictions on work assignments which are imposed by the agency's medical authorities do not directly interfere with the agency's right to assign work under section 7106(a)(2)(B) of the Statute. An agency's medical authorities may include an employee of the agency, or a medical authority designated by the agency, or one with which the agency has contracted. Naval Facilities Engineering Command, 36 FLRA at 838 n.1, reaffirming NAS, Oceana, 30 FLRA at 1125.

The Agency asserts that Provision 4 would bind management to a determination, concerning an employee's ability to return to work, which was "made by a medical authority outside the agency." Statement of Position at 11 (emphasis added). The Union's explanation is that "[s]ince the agency sends the employee to the particular facility the medical authority making the diagnosis would be designated by the agency." Reply Brief at 10.

The Union's explanation is consistent with the wording of Provision 4 which mandates that the provision is applicable when an employee "is sent" to a medical facility. Therefore, for purposes of this decision, we conclude that under Provision 4, if the Agency sends an employee to a medical facility, the decision as to whether the employee may return to work is made by a medical authority designated by the Agency. Because the determination is made by a medical authority designated by the Agency, Provision 4 does not directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See Naval Facilities Engineering Command, 36 FLRA at 838-39. Consequently, Provision 4 is within the Agency's duty to bargain.

VIII. Provision 5

Article 12, Section 5

A. Employees not admitted to any bar or licensed as a CPA within the United States or its possessions will be granted administrative leave four (4) times to the extent necessary to sit for bar or CPA examinations. Such administrative leave grants will be extended to include the time for necessary oral interviews.

B. Additional administrative leave will be granted for this purpose to the above described employees who have shown reasonable progress toward achieving success in passing the applicable examinations.

A. Positions of the Parties

The Agency contends that Provision 5 violates management's right to assign work under section 7106(a)(2)(B) of the Statute because it "divest[s] management of any discretion in determining whether to grant leave to an employee." Statement of Position at 19.

The Union argues that because agencies have the discretion to grant or deny annual leave, Provision 5 is within the duty to bargain. The Union asserts that Part 630, subchapter 11 of the Federal Personnel Manual "sets forth the situations under which the agency is to grant administrative leave (excused absences)." Reply Brief at 10. Additionally, the Union argues that administrative leave approval would be "subject to the needs of the agency for the particular employee on a particular date." Id. at 11. The Union also states that Provision 5 "mandates that if an employee is given leave for the purpose of taking a CPA examination, administrative leave will be granted." Id.

B. Analysis and Conclusions

Provision 5 would require that the Agency grant administrative leave four times to an employee who is not admitted to any bar or licensed as a Certified Public Accountant (CPA) to sit for a bar or a CPA examination. Thus, Provision 5 removes management's right to decide whether to grant administrative leave to employees to take a bar or a CPA examination.

The Authority has held consistently that proposals concerning leave which eliminate management's discretion to determine whether an employee is to remain on duty to perform necessary work are nonnegotiable because they directly interfere with the right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508, 527-30 (1987) (Proposal 23) (Fort Bragg), rev'd and remanded on other grounds sub nom. Fort Bragg Association of Educators, NEA v. FLRA, 870 F.2d 698 (D.C. Cir. 1989). In Fort Bragg, sections of Proposal 23 mandated that the agency approve administrative leave for, among other things, blood donations, adverse weather conditions, emergency care of relatives, and summer school classes which began or ended during the school term. The Authority held that these sections of Proposal 23 did not preserve management's discretion to determine whether an employee's absence would conflict with the accomplishment of necessary work. Consequently, in Fort Bragg the Authority found that these sections of Proposal 23 conflicted with the right to assign work under section 7106(a)(2)(B) of the Statute.

Similarly, Provision 5 fails to preserve management's discretion to decide whether to grant administrative leave. Although the Union argues that Provision 5 grants administrative leave only after an employee's absence to take an examination is approved, the provision's language states that employees "will be granted administrative leave." We do not base negotiability determinations on a union's statement of intent which is inconsistent with the plain wording of the proposal. See, for example, Portsmouth Naval Shipyard, 34 FLRA 1150, 1155. Because the plain wording of Provision 5 mandates that the Agency grant administrative leave to employees who are not admitted to any bar or licensed as a CPA to sit for a bar or a CPA examination, we conclude that it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, as the Union does not assert that Provision 5 constitutes an appropriate arrangement, we find that Provision 5 is outside the Agency's duty to bargain.

Finally, we note that neither party raises any arguments specifically concerning the negotiability of Part B of Provision 5. We find that Part B of Provision 5 would require that under certain conditions the Agency grant administrative leave in addition to the four times permitted by Part A. Inasmuch as the requirement for administrative leave in Part B is not effective until administrative leave is granted four times under Part A and we have concluded that Part A is nonnegotiable, we also find Part B is outside the Agency's duty to bargain.

IX. Provisions 6, 7, 8, and 9

Article 13, Section 1(A)(B)(C) and (D)

A. The Office will approve leaves of absence of any employee elected to a position of national officer of the Union for the purpose to [sic] serving full-time in the elected position.

B. The Office will approve a leave of absence for one elected local chapter officer for the purpose of serving full-time in the elected position.

C. Leaves of absence granted under A and B, above, will be for a period concurrent with the term of office of the elected official and will be automatically renewed by the Office upon notification in writing from the elected official who has been reelected and wishes to continue in a leave of absence status.

D. The Office will approve leaves of absence for two (2) employees, but not more than one employee from any one work unit, for the purpose of serving in full-time appointive positions for the Union. There [sic] term of the leave of absence will be two (2) years. All affected individuals may have their leaves of absence renewed for one additional two (2) year period upon request.

A. Positions of the Parties

1. The Agency

The Agency argues that Sections 1(A), (B), (C), and (D) of Article 13 directly interfere with management's right to assign work under section 7106(a)(2)(B). The Agency asserts that these sections "deprive management of any discretion to deny the leave request." Statement of Position at 22.

Additionally, the Agency argues that Sections 1(A), (B), (C), and (D) do not constitute appropriate arrangements under section 7106(b)(3) of the Statute. According to the Agency, these sections "assume[] that the management right at issue here -- to assign work, . . . will be exercised to deny the leave and, consequently, have an adverse impact upon the employee." Supplemental Statement of Position at 3. The Agency states that "[t]he mere possibility that leave might be denied does not make a provision totally abrogating the management right to make this decision into an arrangement for adversely affected employees." Id. Further, the Agency notes that even if a leave of absence were denied, "nothing precludes the employee from acting as a Union official on his/her own time." Id.

2. The Union

The Union argues that Sections 1(A), (B), (C), and (D) do "nothing more than ensure the right of employees to exercise their [section] 7102 rights." Reply Brief at 11. The Union also asserts that if there is "a conflict between an employee's 7102 rights and management's 7106 rights[,]" then "a balancing must occur . . . ." Id. at 12. The Union argues that the balance "must necessarily sway in the Union's favor when the exercise of the agency's rights precludes the employee from exercising his or her [section] 7102 right to form, join, or assist a labor organization." Id. The Union also notes that it has an "obligation to represent all bargaining unit employees[]" under section 7114(a) of the Statute. Id. at 13. The Union asserts that Sections 1(A), (B), (C), and (D) are "fully consistent with the Civil Service Reform Act and are within the agency's duty to bargain." Id. at 11.

Alternatively, the Union argues that Article 13, Sections 1(A), (B), (C), and (D) are negotiable appropriate arrangements under section 7106(b)(3) of the Statute. If leaves of absence are denied Union officials, the Union asserts that the adverse impact on employees would be "substantial." Id. at 14. The Union asserts that if the Agency "is allowed to prohibit a union official from serving in a Union position," the Agency could "potentially deny an employee his or her right to representation." Id. at 13-14. Further, the Union asserts that employees have "absolutely no control over the circumstances leading to the adverse impact." Id. at 14. The Union also contends that allowing an employee to act as a Union official for an extended period, permits employees and the Union to benefit from the official's "experience, expertise and familiarity with the issues . . . ." Id.

The Union argues that the Agency "has not articulated how its right to assign employees will effect the mission of the Service" or "how the efficient and effective operation of the agency will be affected" by granting leaves of absence. Id. Thus, the Union argues, the requirement that leave be granted would have "no appreciable effect on the agency." Id. Finally, the Union asserts that "[a] statutory right to participate in the union must be upheld absent some showing that a particular employee is the only employee with the skills capable of performing the agency's mission." Id. at 15.

B. Analysis and Conclusions

Article 13, Sections 1(A), (B), (C), and (D) would require the Agency to grant leaves of absence, without pay, to employees who wish to serve the Union in elected or appointed positions. Sections A and B require the Agency to approve leaves of absence for any employees elected to Union positions as national officers and for one elected local chapter officer to enable these employees to serve full-time in the elected positions. Section C requires that the leaves granted to employees under Sections A and B be concurrent with the officers' terms of office and be automatically renewed by the Agency upon notification in writing if the employees are reelected. Section D requires that the Agency approve 2-year leaves of absence for two employees, with not more than one employee from any one work unit, to permit these employees to serve the Union full-time in appointed positions. Additionally, Section D would require the Agency to grant one 2-year extension to individuals who serve in appointed positions.

Sections 1(A), (B), (C), and (D) grant employees an absolute right to leaves of absence if the specified conditions are met. Proposals which leave management no discretion to deny requests for leaves of absence regardless of the necessity for employees' services directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. American Federation of Government Employees, AFL-CIO, Local 2263 and Department of the Air Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580, 583 (1984) (Proposal 4) (proposal requiring management to grant leaves of absence to employees to handle responsibilities for themselves and dependents because of illnesses held to violate management's right to assign work). Inasmuch as Sections 1(A), (B), (C), and (D) leave the Agency no discretion to deny requests for leaves of absence when the conditions described in the sections are met, we conclude that these provisions directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Union argues that Article 13, Sections 1(A), (B), (C), and (D) are intended to be appropriate arrangements under section 7106(b)(3) of the Statute. The Union asserts that these sections are intended to mitigate the adverse effects of management's exercise of its right to deny leaves of absence. For the following reasons, we conclude that these sections constitute negotiable appropriate arrangements under the standards set forth in Kansas Army National Guard, 21 FLRA at 31-33.

Initially, we find that Sections 1(A), (B), (C), and (D) are arrangements for adversely affected employees under section 7106(b)(3). The Union asserts that the exercise of management's right to deny leaves of absence to employees who wish to serve in full-time positions with the Union would adversely affect employees by "den[ying] their rights under [section] 7102 to form, join and assist a labor organization." Reply Brief at 14. Additionally, the Union argues that "employees can be effectively denied their right to be represented should the agency not release the available union official." Id. In response, the Agency argues that "[t]he mere possibility that leave might be denied does not make a provision totally abrogating the management right to make this decision into an arrangement for adversely affected employees." Supplemental Brief at 3.

Further, we note that it is reasonably foreseeable that bargaining unit employees would be adversely affected by the exercise of management's right to deny leaves of absence if part-time Union representatives are unavailable to assist employees in protecting their section 7102 rights. Moreover, in our view it is reasonably foreseeable that employees wishing to serve the Union would be adversely affected by management's exercise of the right to deny leaves of absence. Naval Facilities Engineering Command, 36 FLRA at 841. An Agency denial of a leave of absence to an employee who wishes to serve the Union in a full-time capacity would adversely affect the employee's ability to exercise the right to assist a labor organization which is granted by section 7102 of the Statute. Although official time is available under the conditions described in Article 39, Section 2 of the parties' collective bargaining agreement (Provision 19), under the agreement an employee could not serve the Union in a full-time capacity unless a leave of absence was approved or the employee resigned from Federal service. Consequently, we will consider Article 13, Sections 1(A), (B), (C), and (D) as "arrangements" under section 7106(b)(3).

In order to determine whether the proposed arrangements are "appropriate," within the meaning of section 7106(b)(3), we must examine whether the negative impact on management's right to assign work is disproportionate to the benefits the arrangements confer on employees. See Kansas Army National Guard, 21 FLRA at 33. That is, we must decide whether Sections A, B, C, and D excessively interfere with the right to assign work.

Sections A, B, C, and D would require that the Agency grant leaves of absence, without pay, to employees who meet specified conditions to enable these employees to serve the Union full-time. The Agency does not argue that implementation of these sections would negatively affect its operations. However, it is obvious that the Agency would be obligated to reassign the work of a departing employee and to assign work to the returning employee when the leave expires. Furthermore, if an employee who desires a leave of absence has skills which are not readily available elsewhere within the organization, management's operations might be less efficient until a substitute is found.

On the other hand, an employee's right to assist the Union is protected by section 7102 of the Statute. Section 7102 provides, in relevant part, that:

Each employee shall have the right to form, join, or assist any labor organization, . . . such right includes the right--

(1) to act for a labor organization in the capacity of a representative . . . , and

(2) to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter.

We agree with the Union that Sections A, B, C, and D would facilitate employees' exercise of their right under section 7102 to assist a labor organization. Of course, employees may assist the Union part-time on official time or on their personal time. However, if an employee, who wishes to work for the Union full-time, is denied a leave of absence, the employee must choose between foregoing his or her section 7102 rights or resigning employment in the Federal service.

The need for time to perform union representational functions is recognized in section 7131(d) of the Statute, which provides that a union may negotiate for official time. AFGE, Council of Locals No. 214 v. FLRA, 798 F.2d 1525, 1530 (D.C. Cir. 1986) (finding negotiable a proposal that certain employees be allowed to spend 100 percent of their time handling union representational functions). An employee performing representational functions on official time is in a pay status. In contrast, an employee on a leave of absence granted under Sections 1(A), (B), (C), and (D) would be in a nonpay status when performing Union representational functions. As the Union notes, "[i]t would be absurd to have a situation where the Union could bargain that the employee could serve the position with pay, but not on leave." Reply Brief at 13.

In our view, there are substantial benefits in providing employees with the opportunity for leaves of absence to serve the Union full-time. Under section 7114(a)(1) of the Statute, the Union is "responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." Full-time Union representatives will assist the Union in meeting this statutory obligation. Furthermore, employees who seek representation will benefit from the availability of Union representation and from having full-time Union representatives who have had the opportunity to develop expertise and familiarity with issues confronting unit employees.

The Agency also benefits from full-time representation because Union representatives will be available for such matters as collective bargaining and grievance adjustment. See 5 U.S.C. º 7101(a)(1) (providing, among other things, that collective bargaining contributes to the effective conduct of public business and facilitates the amicable settlement of disputes). Additionally, the Agency benefits from leaves of absence to the extent that a Union representative on leave without pay may perform functions which would otherwise be performed on official (paid) time.

We also note that the Office of Personnel Management recognizes that assistance to a union is an appropriate reason for extended leave without pay (LWOP). The Federal Personnel Manual (FPM) states that one of the "instances in which approval of extended LWOP would be proper[]" includes LWOP "[t]o serve as an officer or employee of a union representing Federal employees . . . ." FPM chapter 630, subchapter 12-2.b.(3)(h) (July 24, 1986).

On balance, we find that any negative effect of Sections 1(A), (B), (C), and (D) on Agency operations is outweighed by the benefit employees receive from the exercise of their section 7102 rights. Consequently, we conclude that Article 13, Sections 1(A), (B), (C), and (D) constitute negotiable appropriate arrangements under section 7106(b)(3) of the Statute.

X. Provision 10

Article 13, Section 3(B)

The Office, to the extent practical, will attempt to place an employee returning from a leave of absence in the position held at the time that the leave of absence began. Failing the foregoing, the Office will place the employee in a similar position elsewhere in the Office.

A. Positions of the Parties

The Agency asserts that Provision 10 violates management's right to assign employees under section 7106(a)(2)(A) of the Statute. Further, the Agency asserts that "the language 'to the extent practical' . . . does not remove the limitation imposed on management's exercise of its right . . . ." Statement of Position at 24.

The Union asserts that Provision 10 "does not mandate placement in a specific position or to be assigned specific duties." Reply Brief at 16. Additionally, the Union argues that the language "a similar position" in the second sentence of Provision 10 "envisions placing an employee in a position which utilizes his or her knowledges, skills and abilities." Id.

B. Analysis

1. The First Sentence Interferes With Management's Right to Assign Employees

We find that the first sentence of Provision 10 would require that the Agency attempt to place an employee returning from a leave of absence in the position he or she previously held in the Office of Chief Counsel. Although Provision 10 only requires the Agency to "attempt" to place an employee in the employee's original position "to the extent practical," the Authority has consistently held that phrases which qualify the limitations placed on a management right do not remove restrictions on management's exercise of that right. See, for example, American Federation of Government Employees, AFL-CIO, Local 1738 and Veterans Administration Medical Center, Salisbury, North Carolina, 27 FLRA 52, 60-61 (1987) (Proposal 8) (finding that the language "to the extent practicable" did not change the Authority's analysis that the proposal interfered with management's right under section 7106(b)(1) to determine the number of employees assigned to any work project or tour of duty); Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 308 (1987) (Proposal 1) (Authority found proposal directly interfered with the agency's right to layoff employees where "to the extent that it is practicable" did not alter proposal's requirement that the agency exhaust other methods of cutting costs prior to conducting a reduction-in-force).

Management's right to assign employees under section 7106(a)(2)(A) of the Statute includes the discretion to determine which employee will be assigned to a particular position. See, for example, Fort Knox Teachers Association and Fort Knox Dependent Schools, 26 FLRA 934, 939 (1987) (proposal requiring employee's reinstatement to original position after sabbatical leave held to violate management's right to assign). Because the first sentence of Provision 10 restricts the Agency's discretion to decide which employee to assign to a position, we are constrained to find, consistent with the above-cited cases, that it directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. Consequently, in the absence of an argument by the Union that Provision 10 is intended as an appropriate arrangement under section 7106(b)(3) of the Statute, the first sentence of Provision 10 is nonnegotiable.

2. The Second Sentence Is Negotiable

The Agency did not specifically dispute the negotiability of the second sentence of Provision 10, which requires that an employee returning from a leave of absence be placed in a similar position if the employee is not placed in his or her original position. The Union asserts that the phrase "a similar position" requires only that management place an employee in a position "which utilizes his or her knowledges, skills and abilities." Id. at 16. This interpretation of the second sentence is consistent with its wording. Read in this manner, the second sentence does not require the Agency to make specific assignments to employees returning from leaves of absence. Rather, management is free to determine where the employee's skills, knowledges, and abilities can best be utilized. Accordingly, we find that the second sentence in Provision 10 does not interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute and, consequently, is negotiable.

C. Conclusions

Absent an assertion by the Union that Provision 10 is intended as an appropriate arrangement under section 7106(b)(3) of the Statute, we find that the first sentence is nonnegotiable because it directly interferes with management's right to assign employees under section 7106(a)(2)(A). The second sentence is within the Agency's duty to bargain because it does not interfere with management's right to assign employees.

XI. Provision 11

Article 18, Section 1

The Office will notify the Union of any reduction in force as far in advance of notification to affected employees as is possible. The information to be furnished the Union will be the competitive levels initially affected, the number of employees involved, the proposed effected [sic] date, the reasons for the action, as well as all avenues considered, adopted or rejected (and the reasons therefore [sic]) before the decision to effect a reduction in force.

A. Positions of the Parties

The Agency notes that the Authority has consistently held that management rights under section 7106, "which include the rights to layoff, remove, or reduce in grade or pay," incorporate the right to discuss and deliberate concerning the factors upon which the decision to exercise a management right in a particular manner will be based. Statement of Position at 25-26. The Agency argues that the provision, "by permitting the Union to acquire knowledge of internal management discussions and deliberations would be to interject the Union into management's internal decision-making process." Id. at 26. Consequently, in the Agency's view, the provision is inconsistent with the management rights enumerated under section 7106(a) of the Statute.

The Union contends that it is entitled to advance notice of an impending reduction-in-force (RIF) under section 7116(a)(5) of the Statute and that it has a right to information concerning the RIF under section 7114(b)(4)(B). The Union contends that the cases used by the Agency to support its position involve union observation during the deliberative process. The Union asserts that the disputed provision "only requires the [A]gency to explain what other options it considered prior to finalizing the plan to conduct a RIF and what was its rationale in adopting or rejecting alternatives." Reply Brief at 17. Accordingly, the Union argues, the provision "is no different than [sic] the numerous cases that require an agency to provide a written explanation for its actions." Id.

B. Analysis and Conclusions

It appears from the Agency's statement of position that the Agency objects to the requirement that the Union receive information concerning the reasons for the decision to conduct a RIF as well as an accounting of "all avenues considered, adopted or rejected" and the reasons for adopting or rejecting the approaches considered prior to deciding to conduct the RIF. Accordingly, our analysis and conclusions will address that requirement.

The Agency reasons that "by permitting the Union to acquire knowledge of internal management discussions and deliberations," the provision would "interject the Union into management's internal decision-making process." Statement of Position at 26. The Agency relies on 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 (1981) (Proposal 1), aff'd sub nom. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), where the Authority found that an "internal management recommendation" is an integral part of management's deliberative process in making a determination on how, or whether, to exercise a management right and, consequently, cannot be disclosed; and on National Treasury Employees Union and Department of Health and Human Services, Region V, Chicago, Illinois, 28 FLRA 647 (1987), where the Authority stated that "proposals which require union participation in . . . discussions and deliberations pertaining to the exercise of management's right are not procedures, but concern management's substantive decision-making process. These types of proposals directly interfere with management's statutory right to make the decisions involved." 28 FLRA at 649.

The Authority decisions cited by the Agency, and others, have held proposals nonnegotiable that required union participation in, or observation of, the deliberations leading to decision and action on the exercise of a management right. See, for example, American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870 (1986) (proposal required notification of employees whenever higher level management inquires about their work assignments), and American Federation of Government Employees, AFL-CIO, Local 2302 and U.S. Army Armor Center, Ft. Knox, Kentucky, 15 FLRA 17 (1984) (proposal required presence of union observer during development of measures of performance).

Nothing in the plain wording of Provision 11 indicates that the Union seeks to participate in any of the managerial deliberations leading to the implementation of a RIF. Rather, the provision only seeks the specified information concerning the Agency's decision to conduct a RIF. Put simply, the Union's receipt of, and consideration of, information relating to the Agency's decision to conduct a RIF does not constitute Union participation in the deliberative process itself. Compare 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, 926 (1990) (union presence at meeting where agency provided employee with opportunity to improve performance letter did not constitute union participation in agency deliberations concerning the performance appraisal process). Therefore, we find that Provision 11 does not authorize the Union to participate in the deliberative processes leading to the exercise of a management right. Accordingly, as the provision does not interfere with the Agency's authority to decide and act on any right reserved to it by section 7106 of the Statute, it is negotiable.

XII. Provision 12

Article 21, Section 7(A)

An evaluative recordation will be furnished to an employee within forty-five (45) days of its development or receipt by a supervisor. If not furnished to the employee within forty-five (45) days, it may not be used by the supervisor or by a ranking panel or official. Any material that may have an adverse effect on an employee's appraisal or rating by a ranking panel or official, the maintenance of which is not required by the IRM or CCDM and that is not shared with the employee, will be removed and destroyed.

A. Positions of the Parties

The Agency asserts that Provision 12 "would place a substantive contractual limitation on the [A]gency's discretion to evaluate an employee's performance." Statement of Position at 28-29. The Agency contends that the provision is not procedural because "it would preclude consideration of any performance which was the subject of the evaluative recordation if the recordation was not provided to the employee within the time frame stipulated." Id. at 29. Accordingly, the Agency argues that the provision directly interferes with its rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Additionally, the Agency contends that Provision 12 interferes with the right to discipline employees under section 7106(a)(2)(A) because it establishes a contractual statute of limitations on the furnishing of documentation which could be the basis for disciplinary action.

The Agency contends that Provision 12 does not constitute an appropriate arrangement for adversely affected employees within the meaning of section 7106(b)(3). The Agency argues that the provision "can be an arrangement for adversely affected employees only if the assumption is made that . . . the absence of the management actions required by the provision would have an adverse impact on the employee, and that the actions prohibited by the provision would also have an adverse impact." Supplemental Statement of Position at 4. The Agency asserts that such an assumption is unsupportable because a judgment as to adverse impact "can be made with any certainty only upon completion of that event." Id.

The Union asserts that Provision 12 constitutes a negotiable procedure under section 7106(b)(2) of the Statute, in that it obligates the Agency to inform employees of perceived deficiencies before holding them responsible for the errors. Alternatively, the Union argues that the provision is an appropriate arrangement under section 7106(b)(3). The Union states:

The impact on employees is great. An employee's annual appraisal determines increase in salary or potential adverse actions up to and including removal. The employee[']s continued employment and pay depends on the annual appraisal and an employee should be given an opportunity to respond to allegations prior to its use against them [sic]. The circumstances here are totally out of the control of the employee. The [provision] deals with an evaluative recordation created, or to be used, by the [A]gency.

Reply Brief at 18. The Union further contends that the provision "has a minor effect on employer rights verses [sic] the significant impact it presents to an employee's ability to respond to [A]gency allegations of performance problems." Id. In that regard, the Union points out that management is neither precluded from acting to create a record, nor prevented from using any document it deems relevant to the evaluation process. The Union also argues that it is not necessary to establish that all employees will be harmed by the exercise of a management right as a precursor to determining that a provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

1. Provision 12 Is Not a Negotiable Procedure

Contrary to the Union's position, we find that Provision 12 does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. Management's rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work include the authority to determine the quantity, quality, and timeliness of employees' work. Management's authority to evaluate employee performance also encompasses the right to determine the aspects of employees' work to be evaluated in preparing employee performance appraisals. See, for example, American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 28 FLRA 714, 717 (1987) (OPM).

Provision 12 precludes the use of an "evaluative recordation" by "the supervisor or by a ranking panel or official" unless such document is furnished to the concerned employee within 45 days of its development or receipt by a supervisor. Proposals preventing management from using particular information in evaluating employee performance also preclude management from accurately evaluating an employee's work. Therefore, such proposals directly interfere with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. American Federation of Government Employees, Local 3272 and Department of Health and Human Services, Social Security Administration, Chicago Regional Office, 34 FLRA 675, 679 (1990) (third sentence of proposal, barring use in rating employee performance of statistics available too late for effective review and rebuttal by employee, held to violate agency's rights to direct employees and to assign work).

Provision 12 prevents management from using certain information it has decided is necessary in evaluating employee performance. That is, the provision bars a supervisor or ranking panel or official from using any evaluation record not furnished to the affected employee within 45 days of the document's development or receipt by a supervisor. Thus, the provision prevents management, in certain circumstances, from using information affecting employee performance evaluations and, hence, directly interferes with the Agency's rights to direct employees and to assign work. As the provision directly interferes with the Agency's rights to direct employees and to assign work, it is not a negotiable procedure under section 7106(b)(2). National Treasury Employees Union and Department of Health and Human Services, Office of Hearings and Appeals, 34 FLRA 1022, 1030 (1990).

2. Provision 12 Is an Appropriate Arrangement

The Union also asserts that Provision 12 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Union contends that the "impact on employees is great[,]" pointing out that employees' "continued employment and pay depends on the annual appraisal and an employee should be given an opportunity to respond to allegations prior to [their] use against [him or her]." Reply Brief at 18. The Union reasons that the provision benefits employees by assuring that affected employees become aware of, and have the opportunity to respond to, adverse evaluation documents. For the following reasons, we conclude that Provision 12 constitutes a negotiable appropriate arrangement.

Initially, we find that Provision 12 is an arrangement for adversely affected employees under section 7106(b)(3). We agree with the Union that the provision provides employees with the opportunity to review and respond to documents affecting their performance ratings. In some circumstances, employee responses may, through clarification or explanation, change the weight assigned to documents critical of their level of performance, thereby avoiding subsequent adverse effects resulting from the use of those documents in rating performance. At a minimum, the provision makes employees aware of documents critical of their work so that they have the opportunity to improve their performance.

Next we must examine whether the negative impact on management's rights to direct employees and to assign work is disproportionate to the provision's benefits in order to decide whether the proposed arrangement is "appropriate." See Kansas Army National Guard, 21 FLRA at 33. In other words, we must determine whether Provision 12 excessively interferes with management's rights.

On balance, we find that the benefit afforded to employees by Provision 12 outweighs the limitations imposed on the Agency's exercise of its rights to direct employees and to assign work. It is clear that the disclosure to employees of adverse evaluation documents confers a benefit. Prohibiting the use of such documents in evaluations unless they are disclosed to the employee within 45 days ensures that the employees will be afforded the opportunity to see and comment on, if they so elect, any document to be used in their performance evaluations.

On the other hand, it is clear also that the provision has a negative impact on the Agency's rights to direct employees and assign work. The provision would, in this regard, restrict the Agency's ability to appraise, or support appraisals of, employees. See American Federation of Government Employees, Local 3272 and Department of Health and Human Services, Social Security Administration, Chicago Regional Office, 34 FLRA 675, 679 (1990) ("proposals which prevent management from using particular information in evaluating employee performance also preclude management from accurately evaluating an employee's work."). Where the Agency failed to show a document to the concerned employee within the provision's time limit, the provision would preclude the use of that document "by the supervisor or by a ranking panel or official."

In finding that the provision constitutes an appropriate arrangement, we note particularly that the proposed time limit begins to run only after the evaluation documents have been created or come into the hands of "a supervisor." Thus, the provision requires only that employees be provided with documents that management has already decided will be considered in assessing the employees' performance. In our view, the requirement that such existing documents be furnished to employees within a 45-day time frame, if the documents are to be used at all in evaluating employee performance, does not excessively interfere with the Agency's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) and to select under section 7106(a)(2)(C). That is, although management's failure to comply with the provision would bar subsequent use of a document, that limitation on management's rights does not outweigh the benefit to the affected employee in having the opportunity to respond to the evaluation. Moreover, timely disclosure of documents to employees affords benefits to management, in our view, by facilitating employee responses to such documents and, in some circumstances, by encouraging employees to alter their performance or behavior before more serious problems arise. In reaching this conclusion, we note particularly that applicable regulations state:

. . . communication and counseling during the work planning and the appraisal period will help ensure that work activity will be consistent with organizational goals. Such communication together with written standards may also reduce the likelihood of disagreements when the appraisal is made at the end of the period.

Federal Personnel Manual Chapter 430, subchapter 2-3f.

Based on the foregoing, we conclude that Proposal 12 is negotiable as an appropriate arrangement under section 7106(b)(3).

XIII. Provision 13

Article 22, Section 5(F)

The ranking panel or official will establish in each action a cut-off score for "highly qualified." The four applicants who rank at the top will be designated as "best qualified." The selecting official will receive the top four applicants on the "best qualified" list, plus one additional applicant for each additional vacancy. In the event of tied scores, the selecting official will receive all applicants with the top four scores on the "best qualified" list.

A. Positions of the Parties

The Agency contends that Provision 13 conflicts with Federal Personnel Manual (FPM) Supplement 335-1, Appendix B-11.b(3), which the Agency asserts is a Government-wide regulation. The Agency identifies the following part of the regulation as applicable to the provision:

. . . it is improper to reduce the number in the best qualified group on the basis of minute score differences, or arbitrary or artificial factors, which are unlikely to have real meaning in terms of likelihood of success on the job.

Statement of Position at 32. The Agency argues that the provision arbitrarily limits the best qualified group to four candidates in violation of the applicable regulation.

The Union contends that Provision 13 constitutes a negotiable procedure under section 7106(b)(2) of the Statute. The Union denies that the provision conflicts with the regulation cited by the Agency. The Union notes that the applicable regulations requiring establishment of promotion programs afford agencies wide discretion in creating their programs. The Union states:

An element of a program is the ranking of candidates and the referral of candidates to the [selecting] official. Some means must be devised to distinguish one applicant from another. This [provision] sets forth a procedure to determine which applicants are referred to the selecting official.

Reply Brief at 19.

B. Analysis and Conclusions

The regulation identified by the Agency as a bar to negotiation on Provision 13 "is intended to be of assistance to agencies in ensuring validity and job relatedness of the promotion and placement process and is not intended to be prescriptive or restrictive." FPM Supplement 335-1, Appendix B-2. Therefore, FPM Supplement 335-1, Appendix B-2, by its own terms, does not mandate procedures governing the referral of candidates for vacancies and, consequently, does not purport to bind agencies to particular courses of action. The guidance contained in the FPM is not binding on agencies and therefore does not constitute a Government-wide regulation within the meaning of section 7117(a)(1). Consequently, the provision does not conflict with a Government-wide regulation. Moreover, the applicable regulation recognizes that the selecting official "normally should not be confronted with so many employees that he or she cannot reasonably review every case and make comparisons among all the employees in the best qualified category." Id. at Appendix B-11.b(3). In our view, Provision 13 establishes a procedure whereby a selecting official is given a reasonable number of candidates to consider for a particular vacancy, as recommended by the regulation. Consequently, we find that FPM Supplement 335-1, Appendix B does not preclude bargaining over Provision 13. As the Agency has advanced no other grounds for finding the provision to be nonnegotiable, we conclude that Provision 13 is negotiable.

XIV. Provision 14

Article 22, Section 6

A. Employees in career ladder positions will be promoted on the first pay period after:

1. the employee becomes eligible to be promoted (after one (1) year, or whatever lesser period satisfies regulatory requirements); and

2. the employee is capable of satisfactorily performing at the next higher level.

B. 1. For employees whose elements and standards are no different from those of the next higher grade level in the career ladder, an overall annual rating of "Fully Successful" at the current grade will satisfy the performance requirements for a career promotion, unless it is determined that, based on performance related criteria, the employee is unable to perform at the next higher grade.

2. Employees may not receive career ladder promotions if they have a rating below "Fully Successful" on a critical element that is also critical to performance at the next higher grade of the career ladder.

A. Positions of the Parties

1. The Agency

The Agency argues that Provision 14 is nonnegotiable for five reasons.

The Agency first asserts that excepted service positions, including those of attorneys who comprise most of the bargaining unit, cannot be covered by career ladder promotion plans under applicable Government-wide regulations.

Second, the Agency contends that, even assuming a career ladder could be applicable to excepted service positions, the governing regulations require that the intent to maintain a career ladder must be made a matter of record. This requirement, according to the Agency, has not been met. In fact, the Agency points out, its regulations governing the promotion of attorneys specifically state that such promotions are discretionary. The Agency states that its regulations provide that supervisors will recommend individual promotions based on such factors as potential for future promotion, and, in some cases, ability to perform work at a level above that of the recommended promotion. The Agency further states that, before a promotion recommendation is approved, a determination must be made that there is sufficient work at the higher level to support the promotion.

Third, the Agency contends that the provision interferes with the Agency's right to determine its organizational structure under section 7106(a)(1) of the Statute. In the Agency's view, the provision totally abrogates the right to determine organizational structure and, consequently, is not an appropriate arrangement within the meaning of section 7106(b)(3).

Fourth, the Agency argues that the provision would require promotions without regard to whether work is available to be performed at the higher grade level.

Finally, the Agency asserts that promotion upon satisfaction of certain criteria is not a mere ministerial act. In the absence of an established career ladder for excepted service attorneys, management must consider each candidate for promotion individually. Therefore, the Agency argues that the requirement that management promote attorneys when they satisfy the provision's criteria and are eligible interferes with the right to make selections to fill positions from any appropriate source under section 7106(a)(2)(C) of the Statute.

2. The Union

The Union contends that Provision 14 "is not creating any promotion system that was not previously in existence." Reply Brief at 20. The Union asserts that use of the term "career ladder" in referring to advancements from grade to grade "is of little significance." Id. Rather, the Union states, "[b]oth parties recognized the actions for what they are, the movement of attorneys from one grade to the next. . . . The key is not what the action is titled, but what the parties understand the process to be." Id. at 20-21. The Union points out that "[i]t is clear that the [A]gency negotiated over a reduction of time-in-grade requirements rather than a 'career ladder.'" Id. at 21.

B. Analysis and Conclusions

We reject the Union's assertion that the use of the term "career ladder" in Provision 14 has little significance. Within the Federal sector, that term has a specialized meaning. A career ladder involves periodic promotions, upon meeting established time-in-grade and performance level requirements, to a target grade level in a particular occupation. More specifically, Federal Personnel Manual (FPM) chapter 335, subchapter 1-5.c(1)(a) defines a career ladder advancement as a promotion "without current competition when at an earlier stage an employee was selected from a civil service register or under competitive promotion procedures for an assignment intended to prepare the employee for the position being filled (the intent must be made a matter of record and career ladders must be documented in the promotion plan)[.]" The Authority has held that the merit promotion requirements in FPM chapter 335, subchapter 1-4 constitute Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 14 FLRA 801, 805-06 (1984) (Decision and Order on Remand). It follows, therefore, that subchapter 1-5, which prescribes what actions are covered by, or excepted from, the requirements of subchapter 1-4 is also a Government-wide regulation.

The parties agree that Provision 14 addresses the promotion process for attorney positions which are in the excepted service. Because they are in the excepted service, attorneys are not selected for Federal employment from civil service registers, as required by FPM chapter 335, subchapter 1-5.c(1)(a). See 5 C.F.R. part 302. Further, the Agency expressly states, without contradiction by the Union, that no career ladder plan has been formally documented for attorneys in the manner prescribed by FPM chapter 335. See Statement of Position at 34. Accordingly, Proposal 14, which concerns "career ladder" promotions for attorneys, is inconsistent with the applicable Government-wide regulation and is nonnegotiable.

As noted, the Union contends that use of the term "career ladder" is "of little significance." Reply Brief at 20. The Union denies that the provision is intended to create, or even concerns, an attorney career ladder, stating that the wording of the provision refers to the Agency's de facto career ladder program for attorneys. Even if we were to accept the Union's construction of Provision 14, the provision, nonetheless, would be nonnegotiable.

The provision is stated in mandatory terms, requiring that attorneys be promoted upon satisfying the stated time-in-grade and performance requirements. The provision does not condition such promotions on the availability of higher-graded positions to which the attorneys could be promoted. Rather, the provision would require the Agency to create higher-graded positions to which an attorney could be promoted. Therefore, the provision requires the Agency to modify its organizational grade structure to assure that attorneys have promotional opportunities. Such a requirement directly interferes with the Agency's authority to determine its organizational structure under section 7106(a)(1) of the Statute. See National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 409-10 (1990) (noting that an agency's right under section 7106(a)(1) to determine its organization includes authority to determine "how an agency's organizational grade level structure will be designed"). See also National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 368-69 (1990) (stating that decision as to "how positions will be structured in terms of grade levels" is an element of the right to determine organization). As the provision directly interferes with the Agency's right to determine its organization under section 7106(a)(1) of the Statute, and in the absence of any assertion that the provision constitutes an appropriate arrangement under section 7106(b)(3), we find that Provision 14 is nonnegotiable, even under the construction urged by the Union.

XV. Provision 15

Article 24, Section 2(C)

Supervisors will refrain from rotating or scheduling assignments of employees to avoid compensation of a particular employee at the higher level.

A. Positions of the Parties

The Agency contends that Provision 15 interferes with its right under section 7106(a)(2)(A) of the Statute to assign employees because it "substantively restricts management's right to rotate employee assignments." Statement of Position at 37. Further, according to the Agency, the provision excessively interferes with the right to assign employees and, therefore, does not constitute an appropriate arrangement within the meaning of section 7106(b)(3).

The Union contends that Provision 15 is an appropriate arrangement for employees adversely affected by the exercise of a management right. The Union points out that the "undisputed portion of the [provision] calls for compensation at a higher grade if the detail is for a duration of one pay period or longer."(1) Reply Brief at 23. The Union contends that the provision would apply only if the Agency were deliberately trying to avoid the compensation requirement. The Union states that, if the Agency is acting in good faith, "no action can be taken[,]" and that the Agency "retains its [r]ight to implement legitimate short duration assignments." Id. at 24.

B. Analysis and Conclusions

The Union's sole argument is that Provision 15 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by the exercise of management's right to assign employees. Consistent with Authority precedent, therefore, we will assume that the provision directly interferes with the right to assign employees. See National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422, 424-25 (1987) (holding that a similar proposal violated agency's right to assign employees under section 7106(a)(2)(A)).

The question in this dispute, therefore, is whether Provision 15 is an appropriate arrangement under section 7106(b)(3). Applying the principles set out in Kansas Army National Guard, we must first decide whether the provision is an "arrangement" for employees adversely affected by the exercise of a management right.

Our review of the wording of Provision 15 and the record as a whole leads us to conclude that the provision is an arrangement. The provision's objective is to mitigate the adverse economic effect on employees when management curtails details to avoid paying increased compensation. Clearly, the provision would allow management to employ details shorter than one pay period for any reason other than avoidance of increased compensation. Thus, the interference with management's right to assign employees is minimal. Further, the Authority has previously observed that "paying employees at levels commensurate with the work that they are required to perform is good management practice." American Federation of Government Employees, AFL-CIO, Local 2024 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 30 FLRA 845, 848 (1987) (Department of the Navy).

Provision 15 would allow management to use short-duration details for any sound managerial reason. It would only prevent management from curtailing details if the motive is to avoid the contractual requirement that employees be compensated at a higher level. Balancing the respective interests of management in assigning employees to details and of the employees in receiving compensation consistent with the level of work performed, we find that the benefit to employees outweighs the minimal impact on management's rights. Therefore, Provision 15 does not excessively interfere with management's right to assign employees and is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Department of the Navy, 30 FLRA at 848-49.

XVI. Provisions 16 and 17

The texts of Provisions 16 and 17, concerning disciplinary and adverse actions, are set forth in the Appendix to this Decision and Order.

A. Positions of the Parties

The Agency contends that Provisions 16 and 17 are nonnegotiable only to the extent that they would provide excepted service employees with the right to grieve disciplinary and adverse actions. Including such employees under the negotiated grievance procedure, the Agency argues, is inconsistent with Congressional intent and applicable court decisions.

The Union contends that inclusion of excepted service employees under the negotiated grievance procedure is consistent with the Statute. The Union points out that negotiated grievance procedures are intended to be broad in scope and that the Statute does not expressly exclude from coverage challenges to disciplinary actions taken against excepted service unit employees. The Union asserts that the court decisions excluding probationary employees from coverage under negotiated grievance procedures are not dispositive. Further, the Union contends that coverage of excepted service employees complies with the Constitution's Fifth Amendment due process requirement. Finally, the Union contends that affording excepted service employees access to the negotiated procedure would not contravene court decisions holding that the Civil Service Reform Act (CSRA) forbids judicial review of agency personnel actions affecting nonpreference eligible excepted service employees. The Union points out in that regard that the provisions only seek to allow non-judicial hearings.

B. Analysis and Conclusions

The question of whether nonpreference eligible excepted service employees should be given the procedural protection of negotiated grievance procedures has been examined by several courts. These courts noted that Congress denied nonpreference eligible excepted service employees the administrative notice and appeal procedures available to preference eligibles and competitive service employees in adverse actions. Consequently, the courts found that affording nonpreference eligible excepted service employees access to negotiated grievance procedures to contest adverse actions was inconsistent with applicable law. For example, in U.S. Department of Health and Human Services v. FLRA, 858 F.2d 1278, 1284 (7th Cir. 1988), the court stated that permitting nonpreference eligible excepted service employees to challenge adverse actions before an arbitrator "would upset the balance that Congress struck [between the needs of efficient agency administration and employment protection in the CSRA] . . . ." In Department of the Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467, 1472 (D.C. Cir. 1989), the court stated that the CSRA "establishes a comprehensive remedial framework governing the civil service. Congress carefully constructed a scheme that would ensure uniformity in personnel decisions and promote efficiency of administration." By authorizing access to the negotiated grievance procedures for nonpreference eligible excepted service employees to challenge adverse actions, the court found that "the FLRA's position would undermine the structure of the CSRA." See also Department of Health and Human Services, Region IX, San Francisco, California v. FLRA, 894 F.2d 333 (9th Cir. 1990) (per curiam) (adopting the decisions cited above).

Since the cited court decisions, the Civil Service Due Process Amendments, Pub. L. No. 101-376, 104 Stat. 461 (1990) have been enacted into law. The Civil Service Due Process Amendments "extend to certain employees in the excepted service who are not preference eligibles the same administrative notice and appeal procedure currently provided employees in the competitive service and preference eligible employees in the excepted service." H.R. Rep. No. 328, 101st Cong., 2d Sess. 1 (1990). In passing these amendments, Congress determined that certain nonpreference eligible excepted service employees, including those covered by Provisions 16 and 17, should be treated similarly to preference eligible excepted service employees and their coworkers in the competitive service with respect to adverse action appeal rights. Therefore, the disparate treatment of nonpreference eligible excepted service employees by the CSRA, which was the basis for the cited court decisions, no longer exists, and those decisions are no longer dispositive of this dispute. In light of the amendments to the CSRA extending to certain nonpreference eligible excepted service employees the same appeal rights provided to other civil service personnel, we are aware of no basis, and the Agency has not presented any, for mandating the exclusion of such employees from coverage under negotiated grievance procedures. Accordingly, Provisions 16 and 17 are negotiable. In finding those provisions to be negotiable, we note no conflict between their wording and the Amendments' requirement that covered nonpreference eligible excepted service employees must have "completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less" before they are eligible to appeal adverse actions. See 5 U.S.C. º 7511(a)(1)(C), as amended.

XVII. Provision 18

Article 36, Section 1

Reasonable attorney fees will be provided to employees (the Union) who suffer unwarranted and unjust personnel actions if the employee (the Union) is the prevailing party and the arbitrator determines the payment of attorney fees is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the Office or any case in which the Office's action was clearly without merit, and attorney fees are otherwise consistent with applicable law.

A. Positions of the Parties

The Agency contends that the provision's wording requires that attorney fees be awarded to the Union if an arbitrator finds that the Union is the victim of an unwarranted and unjust personnel action. Such a requirement, the Agency argues, conflicts with the Back Pay Act (the Act), which authorizes attorney fees only where an employee has suffered an unwarranted or unjustified personnel action.

The Union asserts that the Agency "has completely misinterpreted" the provision. Reply Brief at 41. The Union contends that the "inclusion of '(the Union)' in the [provision] only incorporates the principle that a Union can be reimbursed for attorneys fees." Id. The Union argues that reference to the Union in the provision "does nothing to alter the [A]ct." Id.

B. Analysis and Conclusions

We find that the Union's explanation of the meaning of Provision 18 is consistent with its plain wording. That is, the inclusion of the parenthetical phrase, "the Union," is intended to indicate that the Union is entitled to attorney fees in the described circumstances when the Union has represented the prevailing employee in a grievance proceeding. Additionally, consistent with the provision's requirement that the award of attorney fees be in accordance with applicable law, we read Provision 18 as authorizing fees when the prevailing party has established that the unjustified or unwarranted personnel action resulted in the withdrawal or reduction of all or part of pay, allowances or differentials. Consequently, we reject the Agency's assertion that the provision is inconsistent with the Act. As the Agency has not established any conflict between Provision 18 and the Back Pay Act, and we are aware of none, Provision 18 is negotiable.

XVIII.Provision 19

Provision 19, concerning stewards and official time, is set forth in the Appendix to this Decision and Order.

A. Positions of the Parties

1. The Agency

The Agency asserts that Provision 19 would permit the designation of an Agency attorney to represent an employee in a formal hearing before the Equal Employment Opportunity Commission, the Merit Systems Protection Board, "or any other administrative forum in which an [Agency] employee is formally charging [the Agency] with a violation of law or regulation." Statement of Position at 56-57. The Agency contends that the provision, as a whole, is nonnegotiable because it conflicts with Treasury General Counsel Directive No. 6, for which a compelling need exists. GC-6 provides, in relevant part:

Representation of individual Treasury Department employees in disciplinary or grievance proceedings in any hearing of any nature is determined to be prohibited employment regardless of whether any form of compensation is received.

Id. at 58. The Agency asserts that GC-6 meets the criterion for determining compelling need contained in section 2424.11(a) of the Authority's Rules and Regulations, in that the regulation "'is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the . . . [Legal Division] in a manner which is consistent with the requirements of an effective and efficient government.'" Statement of Position at 57.

The Agency also contends that Section 2(I) of Provision 19 is nonnegotiable because it would require grants of official time and reimbursement and/or per diem for travel to and from administrative proceedings for all witnesses called by the Union or an employee, in violation of 28 C.F.R. º 21.2(b)(2), a Government-wide regulation. That regulation limits reimbursement to witnesses who testify in their official capacities, as Government employees. Moreover, the Agency argues, the provision makes no reference to a determination by the factfinder that the witnesses' testimony is necessary.

The Agency also contends that Section 2(K) of Provision 19 is nonnegotiable to the extent that it would provide a reasonable amount of official time for preparing responses to various proposed actions only when the Union is designated as an employee's representative. The Agency argues that applicable regulations obligate it to afford employees a reasonable amount of official time regardless of whether they have Union representation.

2. The Union

The Union argues that the attorneys in the bargaining unit are not subject to Department-wide conflict of interest regulations because such employees are employed by the Internal Revenue Service, do not exchange work assignments, and do not regularly communicate or interact with attorneys in other bureaus of the Treasury Department. The Union also contends that the Agency has made no convincing distinction between grievance processing and arbitration, in which bargaining unit attorneys may participate, and proceedings before the Merit Systems Protection Board (MSPB) or Equal Employment Opportunity Commission (EEOC). The Union points out that prior to the latest negotiations, attorneys in the bargaining unit were not barred from participation in MSPB and EEOC proceedings. In addition, the Union argues, Authority precedent has established a union's right to select its own representatives to attend formal discussions. Any interference with that right, according to the Union, constitutes illegal participation in the management of a labor organization. The Union also notes that the Agency did not object to representation by non-attorney employees at MSPB and EEOC proceedings.

The Union maintains that Section 2(I) of Provision 19 is consistent with applicable regulations because the Agency "would be free to withhold official time, reimbursement and/or per diem if a showing could be made that payment would be contrary to any applicable government-wide rule or regulation." Reply Brief at 44. The Union contends that the intent of Section 2(K) is to ensure that an employee is granted official time to prepare a response when represented by the Union. The Union states that the provision responds to a prior Agency position that either the employee or the representative was entitled to official time to prepare a reply, but not both. According to the Union, the objective of Section 2(K) is to assure that both employees and their representative are granted official time. Finally, the Union contends that Section 2(K) should be read to harmonize with all statutes and Government-wide regulations.

B. Analysis and Conclusions

1. Compelling Need Issue

The Agency points out that GC-6 authorizes Agency attorneys appointed by the Union to represent unit employees to participate in the negotiated grievance procedure, including arbitration hearings. The Agency further states:

This exception is due to the fact that grievance/arbitration proceedings are by their very nature internal agency proceedings. Grievances under the collective bargaining agreement, including those involving discrimination, are premised on an allegation that the agency breached a contractual obligation. The parties to the collective bargaining agreement have agreed beforehand to resolve their disputes over the interpretation of the agreement through the grievance/arbitration mechanism.

Statement of Position at 60 n.8.

The Agency argues that in appeals before administrative bodies, "any representative of the aggrieved employee goes from defender to prosecutor." Statement of Position at 59-60. Therefore, the Agency asserts, GC-6, in barring its attorneys from representing the Agency's employees before administrative bodies, is essential to the accomplishment of its mission or functions because the regulation prevents real or apparent conflicts of interest.

In this connection, we note that the Statute provides, in certain situations, for the negotiated grievance procedure to culminate in review by the MSPB or the EEOC. See section 7121(d). In these circumstances we find that the Agency regulation draws a distinction without a difference. Whether appearing before an arbitrator or an administrative law judge in an unfair labor practice proceeding to vindicate rights under a negotiated agreement or appearing before a hearing officer of the EEOC, the attorney representative is in an adversarial posture with regard to the enforcement of employee rights under either the contract or applicable law or regulation. To contend that one situation has conflict of interest implications while the other does not is unconvincing. Moreover, to assert that one adversarial situation adversely affects accomplishment of the Agency's mission or functions, while the other adversarial situation does not, is equally unpersuasive.

In addition, the Statute expressly finds that the right of employees to "participate through labor organizations of their own choosing in decisions which affect them" both "safeguards the public interest" and "contributes to effective conduct of public business[.]" 5 U.S.C. º 7101(a)(1)(A) and (B). Furthermore, section 7102 of the Statute gives employees the right "to form, join or assist any labor organization," including the right "to act for a labor organization in the capacity of a representative[.]" Therefore, Congress has found that the Federal labor-management relations program is in the public interest and enhances conduct of public business. To implement that program, Congress has authorized employees to participate by, among other things, acting as union representatives.

The congressional finding, that employee participation in union activities safeguards the public interest, contradicts the Agency position that participation of an Agency attorney as a designated Union representative in administrative proceedings impairs the public's confidence in the integrity of the Government and damages the attorney's ability to properly carry out the functions which he or she is employed to execute.

We find that the portion of GC-6 which the Agency asserts as a bar to negotiation over Provision 19 does not meet the compelling need criterion set out in section 2424.11(a) of our Rules and Regulations. The cited portion of GC-6 is not "essential" to accomplishment of the Agency's mission in a manner consistent with the requirements of an effective and efficient Government. Therefore, Provision 19 is negotiable as it applies to a bargaining unit attorney's representation of an employee in administrative proceedings when designated by the Union.

2. Section 2(I) of the Provision

With regard to Section 2(I) of Provision 19, the Union asserts that the Agency "would be free to withhold official time, reimbursement and/or per diem if a showing could be made that payment would be contrary to any applicable government-wide rule or regulation." Reply Brief at 44. The Union's explanation is consistent with the section's plain wording. We find that the word "witness," as it appears in Section 2(I), means any employee who has qualified as a witness under applicable regulations and, consequently, is eligible to be on official time and to receive reimbursement and per diem. Applying that interpretation of "witness," we conclude that Section 2(I) is negotiable.

3. Section 2(K) of the Provision

Section 2(K) provides reasonable amounts of official time to employees who have designated the Union as their representative to prepare replies to proposed Agency actions. The Union contends that the section is intended to address an Agency policy granting official time either to employees or their representatives, but not to both. We find that the Union's explanation is not inconsistent with the section's wording. Further, we find nothing in the wording which would deny official time to employees electing to prosecute grievances or appeals without representation. Consequently, we conclude that section 2(K) is negotiable.

C. Summary

We find that the Agency's position that negotiation over Provision 19, as a whole, is barred by an Agency regulation for which a compelling need exists is without merit. We also find that section 2(I) and (K) of the provision are consistent with applicable law and regulation. Accordingly, Provision 19 is negotiable.

XIX. Provision 20

Article 42, Section 3(B)

The Office will select EEO counselors from a list of nominees who have been selected by a majority vote of the EEO Advisory Committee. The Committee will nominate twice as many persons for the counselor positions to be filled than is necessary. Counselors may not be Union stewards, Union officers, supervisors or management officials.

A. Positions of the Parties

The Agency contends that the required selection from a list of candidates prepared by the EEO Advisory Committee interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Union contends that the provision constitutes a negotiable procedure under section 7106(b)(2) of the Statute. The Union states:

The [provision] here does not mandate selection, it creates a procedure (majority vote of the committee) to nominate persons for selection to the counselor position. There is no mandate that the selecting official choose the nominees. It is possible that all names submitted by the committee would be rejected by the selecting official. Certainly, the right to do so is protected.

Reply Brief at 45.

B. Analysis and Conclusions

In support of its position, the Union cites National Federation of Federal Employees, Local 1256 and K. I. Sawyer Air Force Base, Michigan, 29 FLRA 171 (1987) (Provision 1) (K. I. Sawyer AFB). However, the provision in K. I. Sawyer AFB is distinguishable from the one in dispute here. The provision in K. I. Sawyer AFB prescribed the method for selecting the union representative to serve on the agency's EEO Committee. Accordingly, the Authority held that the provision "authorizes a procedure for Union participation in the administration of a program directly concerning conditions of employment of unit employees." Id. at 173. In finding the provision to be negotiable, the Authority distinguished it from Proposal XI in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 622-23 (1980) (Wright-Patterson), enforced as to other matters 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). The Authority characterized the proposal in Wright-Patterson as "requiring the assignment of the duties of the Equal Employment Opportunity Counselor to the union nominee as part of his job function." K. I. Sawyer AFB, 29 FLRA at 172.

Provision 20 is similar to the one found to violate the agency's right to assign work under section 7106(a)(2)(B) in Wright-Patterson. Provision 20 dictates that certain work, the EEO counselling function, will be assigned to employees from a particular group, EEO Advisory Committee nominees. Although the Union argues that the Agency is not required to select counselors from the Committee's list of nominees, it is nonetheless apparent, under the provision's terms, that EEO counselor functions can only be assigned to EEO committee nominees. That is, if management declines to select from a particular committee list, its only recourse is to ask the committee to prepare a new list from which to make a selection. Consequently, we conclude, as was held in Wright-Patterson, that "since the . . . proposal directly prescribes the assignment of certain duties to particular employees, and, in effect, precludes the assignment of those duties to other employees, it conflicts with section 7106(a)(2)(B) of the Statute." 2 FLRA at 623. Accordingly, we find that Provision 20 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) and is nonnegotiable, in the absence of a claim by the Union that the provision constitutes an appropriate arrangement under section 7106(b)(3).

XX. Order

The Agency must rescind its disapproval of the following provisions which were bargained over and agreed to by the parties at the local level: Provisions 1, 3, 4, 6 through 9, the second sentence of Provision 10, Provisions 11, 12, 13, 15, 16, 17, 18, and 19.(2) The petition for review is dismissed as it pertains to the following provisions: Provisions 2 and 5, the first sentence of Provision 10, and Provisions 14 and 20.

APPENDIX

Provision 16

Article 31: Disciplinary Actions

Section 1

A. A disciplinary action for the purpose of this article is defined as an oral admonishment; a written reprimand; or a suspension of fourteen (14) days or less.

B. This article applies only to bargaining unit employees who have completed their probationary or trial period.

C. No bargaining unit employee will be the subject of a disciplinary action except for such cause as will promote the efficiency of the service.

D. The Union will be given the opportunity to be represented at an examination of an employee in the unit by a representative of the [A]gency in connection with an investigation if:

1. the employee reasonably believes that the examination may result in disciplinary action against the employee; and

2. the employee requests representation (the employee is responsible for informing the Union).

E. A meeting between an employee and the supervisor or other line management official during which the principal topic of discussion is discipline or potential discipline will entitle the employee involved to request to be accompanied by the Union steward during such meeting. If such a request is made, the supervisor or other line management official will honor the request.

F. In deciding what action may be appropriate, the Office will give due consideration to the relevance of any mitigating and/or aggravating circumstances. The following factors, included herein for purposes of illustration, are neither meant to be exhaustive nor intended to be applied mechanically, but rather to outline the tolerable limits of reasonableness:

1. the nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical and inadvertent, or was committed maliciously or for gain, or was frequently repeated;

2. the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;

3. the employee's past disciplinary record;

4. the employee's past work record; including length of service, performance on the job, ability to get along with fellow workers, and dependability;

5. the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisor's confidence in the employee's ability to perform assigned duties;

6. consistency of the penalty with those imposed upon other employees for the same or similar offenses;

7. the notoriety of the offense or its impact upon the reputation of the office;

8. the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;

9. potential for the employee's rehabilitation;

10. mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation o[n] the part of other[s] involved in the matter; and

11. the adequacy and effectiveness of alternative sanctions to defer [sic] such conduct in the future by the employee or others.

G. Discipline will be administered as timely as possible.

Section 2

A. An employee will, in any disciplinary action and upon request, be furnished a copy of that portion of all written documents that contain material relied on by the Office which form the basis for the reasons and specifications.

B. If the discipline is based on an investigative report, portions of all written documents from the investigative report that directly relate to the specifications and are favorable to the employee will be furnished to the employee upon request.

C. If probable cause exists and is demonstrated to the arbitrator by the Union on appeal that favorable information provided for in subsection B, above, has not been furnished by the Office, upon request of the arbitrator the report will be furnished for an "in camera" inspection to be made in conformity with the Privacy Action [sic]. Material determined by the arbitrator to be favorable under the criteria of subsection B, above, and not previously furnished to the Union will be furnished to the Union.

Section 3

Matters which may otherwise be appealable to arbitration may not be processed under this article if the matter is pending before a Federal court or the employee is under arrest, indictment or information.

Section 4

A. When the Office proposes to suspend an employee for fourteen (14) days or fewer, the following procedures will apply:

1. the office will provide the employee with at least fifteen (15) days advance written notification of the proposed suspension;

2. an employee has the right, but is not obliged, to make an oral and/or written reply provided that (a) if the employee wishes to make an oral reply, he or she requests to do so within seven (7) days of the employee's receipt of the letter of proposed action, and (b) the oral and/or written reply must be received by the Office within a reasonable period of time after the employee's receipt of the letter of proposed action; and

3. the Office will issue a final decision after receipt of the oral and/or written reply, or the termination of the fifteen (15) days notice period. This letter will state which reasons and specifications are sustained and will address factual disputes, if any, raised by the employee's reply by stating the reasons why each factual dispute [was] rejected.

B. At the conclusion of the oral reply, the employee will provide a written statement of all factual disputes to be addressed in the decision letter.

Section 5

A. In cases where a suspension is proposed for reasons of off-duty misconduct, the Office's written notification will contain a statement of the nexus between the off-duty misconduct and the efficiency of the service.

B. 1. The Office may amend or change its nexus statement at any time before the issuance of a decision letter. If the Office elects to change or modify its nexus statement, the employee will be informed of such changes or modifications in writing.

2. The employee will have a reasonable period of time to respond to the new statement of nexus. Such response may be in writing or orally. Where an oral response is submitted, the Office will make a written summary of the response and serve a copy on the employee's representative. The employee's representative will have a representative. The employee's representative will have a reasonable period of time to respond to the summary.

C. After issuance of the decision letter, the Office may amend or change its nexus statement under the following circumstances:

1. newly discovered evidence that was not discoverable earlier with the exercise of due diligence (under this circumstance, the Office will expeditiously notify the employee's representative (or the employee, if unrepresented) of its intention to rely on a new nexus theory because of the newly discovered evidence - if it becomes necessary to delay or cancel the arbitration hearing because of the Union's need to respond at hearing to this new nexus theory, and if the Office's notification to the Union of the new nexus theory occurs within seven (7) days of a scheduled hearing, the Office and the Union will equally share the expenses of a cancellation fee); or

2. a change occurs in applicable case law or statute.

D. Nothing in this section will preclude the Office from responding to or rebutting any evidence, arguments, or defenses raised by or on behalf of the employee.

E. Letters of official reprimand that are based on reasons of off-duty misconduct will also state a nexus between such misconduct and the efficiency of the service.

Section 6

A. If the Office's final decision is that an employee will be suspended for a period of not more than fourteen (14) days, the suspension will take effect as soon as possible after the receipt by the employee of the final decision, but not sooner than five (5) days after receipt by the employee of the final decision.

B. Suspensions of employees of between four (4) and fourteen (14) days will be stayed pending an arbitration decision provided that arbitration is invoked within five (5) days after receipt by the employee of the final decision.

C. 1. Suspensions of three (3) days or less may be grieved at the last step of the employee grievance procedure.

2. Suspensions of four (4) to fourteen (14) days may be appealed directly to arbitration within five (5) days if a stay is requested or twenty-one (21) days if a stay is not requested.

D. The notice of appeal must be given by certified mail or by hand delivery to the appropriate deciding official. Notice of appeal by certified mail will be effective when mailed and notice of appeal by hand delivery will be effective when received.

E. 1. If a timely grievance or notice of appeal to arbitration is not received by the appropriate deciding official, the decision of the Office may not be appealed in any other manner under the terms of this Agreement.

2. The burden of proof in any arbitration over a suspension will be substantial evidence.

Provision 17

Article 32: Adverse Actions

Section 1

A. An adverse action, for the purpose of this article is defined as a removal; a suspension for more than fourteen (14) days; a reduction in grade; a reduction in pay, and a furlough of thirty (30) days or less of a full-time employee. This article does not apply to a reduction in grade or a removal based on unacceptable performance as defined in 5 USC 4303.

B. This article applies only to bargaining unit employees who have completed their probationary or trial period.

C. No bargaining unit employee will be the subject of a disciplinary action except for such cause as will promote the efficiency of the service.

D. The Union will be given the opportunity to be represented at any examination of an employee in the unit by a representative of the [A]gency in connection with an investigation if:

1. the employee reasonably believes that the examination may result in disciplinary action against the employee; and

2. the employee requests representation (the employee is responsible for informing the Union).

E. A meeting between an employee and the supervisor or other line management official during which the principal topic of discussion is discipline or potential discipline will entitle the employee involved to request to be accomplished [sic] by the Union steward during such meeting. If such a request is made, the supervisor or other line management official will honor the request.

F. In deciding what action may be appropriate, the Office will give due consideration to the relevance of any mitigating and/or aggravating circumstances. The following factors, included herein for purposes of illustration, are neither meant to be exhaustive nor intended to be applied mechanically, but rather to outline the tolerable limits of reasonableness:

1. the nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical and inadvertent, or was committed maliciously or for gain, or was frequently repeated;

2. the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;

3. the employee's past disciplinary record;

4. the employee's past work record; including length of service, performance on the job, ability to get along with fellow workers, and dependability;

5. the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisor's confidence in the employee's ability to perform assigned duties;

6. consistency of the penalty with those imposed upon other employees for the same or similar offenses;

7. the notoriety of the offence [sic] or its impact upon the reputation of the office;

8. the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;

9. potential for the employee's rehabilitation;

10. mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and

11. the adequacy and effectiveness of alternative sanctions to defer [sic] such conduct in the future by the employee or others.

Section 2

A. In all cases of proposed adverse action, the employee will be given written notice stating the specific reasons for the proposed action thirty (30) days in advance of the action, except as provided in C, below.

B. In all cases of proposed adverse action, except as provided in C, below, the employee will be given the opportunity but will not be obliged to respond orally and/or in writing to the charges before a decision on the changes [sic], provided the employee requests an oral reply within seven (7) days of receipt by the employee of the letter of proposed action and provided that the Office will receive an employee's oral and/or written reply within a reasonable time after receipt by the employee of the letter of proposed action.

C. In cases of proposed removal or indefinite suspension where the Office has reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, the employee will be given written notice stating the specific reason(s) for the proposed action seven (7) days in advance of the action. The employee will be given the opportunity but will not be obliged to respond orally and/or in writing to the proposed action before a decision provided; however, that the employee's oral and/orwritten reply must be received by the Office within seven (7) days of receipt by the employee of the advance written notice.

D. If the employee elects to make an oral reply, the Office will prepare a verbatim transcript of the oral reply and will provide a copy to the employee or designated Union representative, upon request.

[Section 3]

A. In cases where an adverse action is proposed for reasons of off-duty misconduct, the Office's written notification will contain a statement of the nexus between the off-duty misconduct and the efficiency of the service[.]

B. 1. The Office may amend or change its nexus statement at any time before the issuance of a decision letter. If the Office elects to change or modify its nexus statement, the employee will be informed of such changes or modifications in writing.

2. The employee will have a reasonable period of time to respond to the new statement of nexus. Such response may be in writing or orally. Where an oral response is submitted, the Office will make a written summary of the response and serve a copy on the employee's representative. The employee's representative will have a representative [sic]. The employee's representative will have a reasonable period of time to respond to the summary.

C. After issuance of the decision letter, the Office may amend or change its nexus statement under the following circumstances:

1. newly discovered evidence that was not discoverable earlier with the exercise of due diligence (under this circumstance, the Office will expeditiously notify the employee's representative (or the employee, if unrepresented) of its intention to rely on a new nexus theory because of the newly discovered evidence - if it becomes necessary to delay or cancel the arbitration hearing because of the Union's need to respond at hearing to this new nexus theory, and if the Office's notification to the Union of the new nexus theory occurs within seven (7) days of a scheduled hearing, the Office and the Union will equally share the expenses of a cancellation fee); or

2. a change occurs in applicable case law or statute.

D. Nothing in this section will preclude the Office from responding to or rebutting any evidence, arguments, or defenses raised by or on behalf of the employee.

Section 4

A. An employee will, in any adverse action and upon request, be furnished a copy of that portion of all written documents that contain material relied on by the Office which [sic] the basis for the reasons [sic] specifications.

B. If the adverse action is based on an investigative report, portions of all written documents from the investigative report that directly relate to the specifications and are favorable to the employee will be furnished to the employee upon request.

C. If probable cause exists and is demonstrated to the arbitrator by the Union on appeal that favorable information provided for in subsection B, above, has not been furnished by the Office, upon request of the arbitrator the report will been [sic] furnished for an "in camera" inspection to be made in conformity with the Privacy Act. Material determined by the arbitrator to be favorable under the criteria of subsection B, above, and not previously furnished to the Union will be furnished to the Union.

Section 5

A. An official who sustains the proposed reasons against an employee in an adverse action will set forth findings with respect to each reason and specification against the employee in the notice of decision. Such notice will also address factual disputes, if any, raised by the employee's reply by stating the reasons why each factual dispute was rejected.

B. At the conclusion of the oral reply, the employee [sic] provide a written statement of all factual disputes to be addressed in the decision letter.

Section 6

A. If the Office's final decision is to effect an adverse action against a [competitive service or preference eligible] * bargaining unit employee, the employee may appeal the decision to the Merit Systems Protection Board (MSPB) in accordance with applicable law, or, with the consent of the Union, to binding arbitration. Under no condition may an employee appeal an adverse action to both MSPB and arbitration.

B. If the Union consents to appeal an adverse action to arbitration, the Union must give the Office notice of its decision within twenty-one (21) days of the employee's receipt of the Office's final decision. If timely notice of appeal is not received by the appropriate deciding official, the action may not be grieved or appealed to arbitration.

[D.]The notice of appeal must be given by certified mail or by hand delivery to the appropriate deciding official. Notice of appeal by certified mail will be effective when mailed and notice of appeal by hand delivery will be effective when received.

[2.] The burden of proof in any arbitration over a suspension will be substantialevidence.

* Coverage under this article and entitlement to MSPB or arbitrable review for excepted service employees is subject to a negotiability dispute between the parties.

Provision 19

Article 39: Stewards and Official Time

Section 1 - Designation

A. Unless otherwise expressly stated, wherever in this article the term "steward" is used, it will include chapter president, chief steward, steward-at-large, and any other individuals authorized by the Union in advance to act on its behalf.

B. The Union may designate stewards to act on its behalf in accordance with the following:

1. there will be no more than eleven (11) stewards (not including the Chapter President);

2. there will be no more than five (5) stewards from any one division (or equivalent);

3. there will be no more than two (2) stewards from any one work unit;

4. individuals duly designated under this article will not be displaced due to a consolidation of their work units;

5. no work unit will be represented by more than one steward;

6. organizational segments, for representational purposes, must be separate, non-overlapping, and drawn so as not to divide employees of a work unit;

7. the Union will provide the Office with a roster of the names of stewards appointed pursuant to the terms of this section, and any change in areas of representation will be effective no sooner than forty eight (48) hours after receipt by the Office of written notice of such change unless to delay would deny employees representation. The roster will be posted on the Union portion of all official bulletin boards;

8. one (1) steward may be designated as a chief steward;

9. one (1) steward may be designated as a steward-at-large who may represent employees in all organizational segments of the Office when there is a need for specific expertise (for example, EEO).

C. Employees in the above-mentioned organizational segments will, when seeking assistance as provided for in this Agreement, receive such assistance from the steward designated or authorized to represent the segment.

Section 2 - Official Time

A. The Office fully recognizes that whatever reasonable time is spent in the conduct of Union/Office business is spent as much in the interest of the Office as that of the employees.

B. Stewards will be provided official time, as determined by the Federal Labor Relations Authority (Authority), for participation for, or on behalf of, the Union in any phase of proceedings before the Authority during the time the steward would otherwise be in a duty status.

C. Stewards will be granted official time for participation for, or on behalf of, the Union in the meetings with the Office (including time to travel to and from such meetings) described in subsection D, below. Except where otherwise specifically provided, for each of these meetings one (1) steward only is entitled to time.

D. The meetings referred to in subsection C, above, are:

1. meetings with the Office concerning personnel policies, practices or other general conditions of employment, or any other matter covered by 5 USC 7114(a)(2)(A);

2. meetings to discuss or present unfair labor practice charges or unit clarification petitions;

3. oral replies to notices of proposed disciplinary, adverse or unacceptable performance actions;

4. meetings to present appeals in connection with statutory or regulatory appeal procedures in which the Union is designated as the representative;

5. meetings for the purpose of presenting reconsideration replies in connection with the denial of within-grade increases;

6. examinations of employees in the unit by a representative of the Office in connection with an investigation if:

a) the employee reasonably believes that the examination may result in disciplinary action against the employee; and

b) the employee requests representation;

7. tax audits of unit employees that are conditions of employment when the employees request representation;

8. grievance meetings and arbitration hearings;

9. meetings of committees on which Union representatives are authorized membership pursuant to this Agreement; and

10. meetings for the purpose of presenting replies in connection with the termination of probationers.

E. For other activities associated with the maintenance of an effective labor-management relationship as described in subsection F, below, stewards will be provided official time, hereinafter referred to as "bank time", in amounts determined in accordance with the provisions of subsection H, below.

F. The activities referred to in subsection E, above, are those:

1. to confer with employees with respect to any matters for which remedial relief may be sought pursuant to the terms of this Agreement;

2. to prepare grievances;

3. to prepare witnesses;

4. to review documents that are not available during non-duty hours;

5. to prepare a reply to a notice of proposed disciplinary, adverse or unacceptable performance action;

6. to prepare for arbitration;

7. to prepare a reconsideration statement in connection with the denial of a within-grade increase;

8. to meet with national staff representatives of the Union in connection with a grievance, arbitration or unfair labor practice charge;

9. to participate in an Authority investigation or hearing preparation as a representative of the Union;

10. to travel to and from meetings for which the steward receives bank time;

11. to prepare for negotiations;

12. to prepare minutes of meetings respecting elements and standards described in section 5 of article 19, Performance Appraisal;

13. to prepare for LMRC meetings;

14. to participate in training designed primarily to further the interest of the Government by bettering the labor-management relationship;

15. to prepare and maintain records and reports required of the Union by Federal agencies, including the IRS;

16. to contact members of Congress and their staffs to discuss personnel matters affecting the Office and its employees; and

17. to maintain office hours.

G. Notwithstanding any other provision in this Agreement, the parties agree that any activities performed by stewards relating to the internal business of the Union (including the solicitation of membership, election of officials, and collection of dues) will be performed during the time the stewards are in non-duty status.

H. Bank time referred to in subsection F, above, will be made available as follows:

1. upon the effective date of this Agreement, and in each succeeding year, the Union will be credited with thirteen hundred (1300) hours of bank time;

2. the Union may carry any unused bank time to the next year.

I. A grievant, appellant, or a witness (other than a steward) or an employee who is the subject of an examination in connection with an investigation will receive official time and reimbursement and/or per diem for travel to and from attendance at the following:

1. grievance meetings;

2. arbitration hearings;

3. oral reply meetings for a notice of proposed adverse, disciplinary or unacceptable performance action;

4. an adverse action hearing, if the employee is still on the rolls;

5. other statutory or regulatory appeal hearings, if the employee is still on the rolls;

6. meetings for the purpose of presenting reconsideration replies in connection with the denial of a within-grade increases; [sic]

7. an examination by a representative of the Office in connection with an investigation which may lead to disciplinary action; and

8. to present oral replies in connection with the termination of a probationer if such employee is still on the rolls.

J. Employees will receive a reasonable amount of official time when being interviewed during regular duty hours by:

1. a steward who is using time pursuant to this article; and

2. a national representative of the Union, in connection with a matter for which remedial relief may be sought pursuant to this Agreement.

K. employees will receive a reasonable amount of official time to prepare responses to actions proposed by the Office, when the Union is the designated representative of the employees.

L. Stewards and employees within-grade [sic] to use time under his [sic] article will check with their supervisors and will be released provided their work requirements or work schedules do not prohibit release. Stewards and affected employees will inform their supervisors as to where they will be, the approximate time they will be away from their work areas, and the activity for which they are entitled to time.

M. Stewards who enter other work areas pursuant to this article will check in with the supervisors in those areas.

N. When stewards or affected employees have completed use of time under this article, they will report to their supervisors and inform the supervisors of the amount of time used.

Section 3 - Workload Conflicts

The parties recognize that the performance of representational duties by stewards means that stewards will have less time to perform regular work assignments. Stewards and their supervisors are accordingly encouraged to discuss regularly the stewards' workload to minimize the potential conflicts between regular work assignments and representational duties and to ensure fair performance appraisals and accomplishment of the work unit's production requirements. If the parties are unable to resolve a conflict that may arise, the steward may request the supervisor's reasons, in writing, for refusing to reassign the work.




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

1. Although the Union failed to furnish a copy of the "undisputed portion" of Provision 15, the Agency does not dispute that the parties agreed to additional compensation for employees detailed to perform work of a higher grade level for one pay period or longer.

2. In finding these provisions and parts of provisions to be negotiable, we make no judgment as to their me