41:0795(72)NG - - Patent Office Professional Association and Commerce, Patent and Trademark Office - - 1991 FLRAdec NG - - v41 p795
[ v41 p795 ]
41:0795(72)NG
The decision of the Authority follows:
41 FLRA No. 72
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
By its Order of January 17, 1990, the United States Court of Appeals for the Fourth Circuit granted the Agency's motion for summary reversal and remand of the Authority's initial decisions in these cases based on the court's decision in Department of Defense, Office of Dependents Schools v. FLRA, 879 F.2d 1220 (4th Cir. 1989) (DODDS). Consequently, the cases are again before us.
These cases concern the negotiability of 18 provisions that were awarded by an interest arbitrator and were disapproved by the Agency head under section 7114(c) of the Federal Service Labor-Management Relations Statute (the Statute).
For the reasons that follow, we conclude, as to certain procedural issues that are raised, that the petitions in these cases are properly before us. We conclude that Provision 1 is nonnegotiable because it directly interferes with management's right to take whatever actions may be necessary to carry out the agency mission during emergencies under section 7106(a)(2)(D). Provisions 2 and 3, which provide for a "retraining" period for certain Union officials who are returning to their regular duties on a full-time basis, are nonnegotiable because they excessively interfere with management's rights to direct employees and assign work.
The first sentence of Provision 4, which concerns the use of evaluation panels in filling vacancies, is not in dispute and is negotiable. The second sentence of Provision 4 is nonnegotiable because it directly interferes with management's right to assign work. Provisions 5, 6, and 7, which concern providing information to employees, are not inconsistent with the Privacy Act and are negotiable. Provision 8, which relates to providing evidence to employees against whom an adverse or disciplinary action is proposed, does not directly interfere with management's right to assign work as claimed by the Agency and is negotiable. Provision 9, which concerns making witnesses, on whom the Agency is relying to support an adverse or disciplinary action, available for questioning by, or on behalf of, the subject of the action, is not inconsistent with section 7102 of the Statute and is negotiable.
Provision 10, which relates to advance notice of proposed adverse actions, excessively interferes with management's rights to take disciplinary action and remove employees and is nonnegotiable. Provision 11, which concerns the assignment of offices to employees who smoke, does not interfere with management's rights to assign and direct employees and is negotiable. Provision 12 concerns workplace security and access. The first sentence is not in dispute and is negotiable. The second and third sentences, which directly interfere with management's right to determine its internal security practices, are, nevertheless, negotiable as appropriate arrangements under section 7106(b)(3). Provision 13, which is merely a statement of existing past practice and does not bind the Agency to continue any practice, is negotiable. Provision 14, which concerns sick leave, is nonnegotiable because it is inconsistent with a Government-wide regulation, 5 C.F.R. § 630.401. Provisions 15 and 16, which relate to reduction-in-force (RIF) actions, are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute. Provision 17, which concerns the effective date of the parties' agreement, is inconsistent with section 7114(c) of the Statute and is nonnegotiable. Provision 18, which relates to the circumstances under which employees must report to their supervisors when leaving their work area, directly interferes with management's rights to direct employees and assign work and is nonnegotiable.
II. Background and Procedural Issues
Two procedural issues are raised in these cases. The first is whether the provisions of the interest arbitrator's award are subject to agency head approval under section 7114(c) of the Statute. For the reasons set forth below, we conclude that they are. This conclusion leads to a second procedural issue that relates to the Union's assertion that the Agency head's disapproval was untimely with respect to many of the provisions that are included in these petitions.
A. Agency Head Review of Interest Arbitration Awards
In the initial decisions in these cases, the Authority dismissed the negotiability appeals, relying on Authority precedent holding that section 7114(c) of the Statute does not empower agency heads to review provisions that are directed to be included in an agreement as a result of an interest arbitration award. 28 FLRA at 4; 28 FLRA at 8. Consequently, the Authority concluded that the agency head disapproval in these cases did not serve as an allegation of nonnegotiability from which the Union could file a petition for review. The Authority's position concerning agency head review of provisions imposed by an interest arbitrator was subsequently rejected by the court in DODDS, 879 F.2d 1220. In U.S. Department of Justice and Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 1346 (1990) (INS), petition for review filed as to other matters sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 90-1613 (D.C. Cir. Dec. 27, 1990), we announced that we would no longer adhere to the previous statutory interpretation. Rather, we announced that we would find that where the Federal Service Impasses Panel (the Panel) directs parties to interest arbitration under section 7119(b)(1) of the Statute, the agency head retains the right under section 7114(c) to review any provisions imposed. INS at 1358.
In U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3 (1991) (Bureau of Reclamation), we held that where parties voluntarily enter into interest arbitration pursuant to section 7119(b)(2) of the Statute, the appropriate mechanism for challenging resulting arbitration awards is through the filing of exceptions under section 7122 of the Statute. 41 FLRA 3 at 8-9. It follows that if both parties agree to arbitration under section 7119(b)(2), the resulting arbitration award is not subject to agency head review under section 7114(c) of the Statute. See Panama Canal Commission v. FLRA, 867 F.2d 905 (5th Cir. 1989).
In reaching our conclusion in Bureau of Reclamation, we stated:
Section 7119(b)(1) and (2) is "decidedly in the disjunctive," however. In particular, although section 7119(b)(2) refers to the parties' agreement to adopt procedures for binding arbitration, interest arbitration resulting from a request for Panel assistance under section 7119(b)(1) is "nonvoluntary[.]" As such, arbitration resulting from requests under section 7119(b)(1) does not constitute "binding arbitration agreed upon by the parties and subject to review under § 7122." [Citations omitted.]
41 FLRA at 7.
Where one or both parties request Panel assistance under section 7119(b)(1), the Panel may recommend to the parties procedures, including arbitration, for the resolution of the impasse. 5 C.F.R. § 2471.6(a)(2). The Panel is also empowered to direct the parties to interest arbitration to resolve their impasse. 5 C.F.R. § 2471.11(a); INS, 37 FLRA at 1356-57.
In our view, insofar as agency head review of the provisions of an interest arbitrator's award is concerned, it makes no difference whether the parties are compelled to refer their dispute to an interest arbitrator pursuant to final action of the Panel under section 2471.11 of the Panel's regulations or enter into interest arbitration pursuant to a recommendation by the Panel under section 2471.6 of the Panel's regulations. Only where it is clear that an agency has agreed voluntarily to binding arbitration does the agency forfeit agency head review under section 7114(c) of the Statute. See DODDS, 879 F.2d at 1224. In electing to have their impasse processed under section 7119(b)(2), the parties clearly and unequivocally volunteer to enter into binding arbitration. Where an agency declines to enter into a joint request under section 7119(b)(2), however, its willingness to submit the dispute to interest arbitration becomes more difficult to ascertain, particularly where it acquiesces to a Panel recommendation that the parties submit their dispute to an interest arbitrator. The question of what such acquiescence signifies in terms of an agency's willingness to enter into binding arbitration of its own free choice and will is highly susceptible to dispute and would necessarily involve issues as to the intent of agency representatives in accepting a Panel recommendation. Thus, a determination of whether interest arbitration entered into pursuant to section 7119(b)(1) was truly voluntary on the part of an agency could be highly problematical.
In view of the availability of a procedure under section 7119(b)(2) where both parties may freely agree to engage in binding arbitration of an impasse, there is no need to interpret section 7119(b)(1) as encompassing voluntary, binding arbitration. See Defense Logistics Agency v. FLRA, 882 F.2d 104, 107 (4th Cir. 1989) (The court found that there was no "agreement 'for binding arbitration'" by virtue of the agency's agreement to a Panel recommendation made in conjunction with an impasse being processed pursuant to section 7119(b)(1). In so finding, the court noted, "If the parties had wanted to engage in binding arbitration they were more than aware of the correct procedure for doing so.") In our view, the only reliable indicator of whether a party's entry into an interest arbitration proceeding to resolve an impasse is voluntary is whether it has utilized the process available under section 7119(b)(2) of the Statute. Consequently, that is the determinative factor that we will use to distinguish voluntary interest arbitration from nonvoluntary interest arbitration.
In sum, where one or both parties elect not to utilize section 7119(b)(2) to resolve a negotiation impasse and the impasse is submitted to the Panel under section 7119(b)(1), any resulting interest arbitrator's award is subject to agency head review under section 7114(c) of the Statute.
We now apply this principle to the present cases. The Union, in a supplemental submission in these cases, suggests that the Agency evidenced an intent to engage in interest arbitration to resolve the parties' negotiation impasse. In support of this claim, the Union submits copies of two forms requesting Panel assistance, which the Agency submitted to the Panel. On the first, dated December 27, 1985, the Agency indicated that it was requesting the Panel to "approve a binding arbitration procedure for resolution of a negotiation impasse." On the second, dated January 23, 1986, which contains the statement "corrected submission of Dec. 27, 1985, as required by FSIP" the Agency indicated that it was requesting the Panel to "consider a negotiation impasse." Clearly, the difference between the two elections is that one invokes procedures governed by section 7119(b)(1) (consider a negotiation impasse) and the other invokes procedures governed by section 7119(b)(2) (approve a binding arbitration procedure). While it may appear that the Agency in its initial request to the Panel indicated that it was seeking to invoke section 7119(b)(2), its subsequent correction changed that designation and sought assistance under section 7119(b)(1) of the Statute. In our view, the existence of the "corrected submission" and the fact that neither the original request nor the "corrected" request indicates that it was a joint labor-management request leads us to conclude that the Agency did not make a binding election to resolve the impasse pursuant to section 7119(b)(2) of the Statute. See 5 C.F.R. § 2471.3(b) (a request for approval of binding arbitration must be jointly filed by the parties).
We conclude that the interest arbitration proceeding that was involved in these cases arose under section 7119(b)(1) and not 7119(b)(2) of the Statute. Based on the precedent set forth above, we conclude that the arbitrator's award was subject to agency head review under section 7114(c) of the Statute.
B. Procedural Issue Relating To Timeliness
To be timely, a petition for review of a negotiability issue filed pursuant to section 7117 of the Statute must meet specified time limits that run from either a written allegation from an agency that the duty to bargain does not extend to the matter proposed or a written request from an exclusive representative to an agency for such an allegation. See section 2424.3 of the Authority's rules and regulations; American Federation of Government Employees, Local 3342 and U.S. Department of Health and Human Services, Social Security Administration, New York Region, 36 FLRA 367, 371-73 (1990). An agency head's disapproval of a collective bargaining agreement pursuant to section 7114(c) of the Statute constitutes an agency allegation of nonnegotiability for the purposes of filing a petition for review. For example, Philadelphia Metal Trades Council and Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 33 FLRA 849 (1989). For an agency head's disapproval to constitute an allegation of nonnegotiability for purposes of review under section 7117, it must meet certain requirements. Specifically, it must be in writing and must be served on the union, by certified mail or by personal delivery to the union's designated representative, within 30 days from the date the agreement is executed. See, for example, International Organization of Masters, Mates and Pilots and Panama Canal Commission, 36 FLRA 555, 559-60 (1990) (Panama Canal Commission).
Here, the Union contends that the Agency head's disapproval was untimely as to many of the provisions at issue. The facts underlying this question are as follows. Pursuant to the direction of the Panel, the parties engaged in interest arbitration to resolve the impasse they had reached in negotiation over a new basic agreement. The arbitrator elected to serve his award in several installments, a few articles at a time, over a period extending from April 29, 1986, to June 9, 1986. On April 29, 1986, the arbitrator prevailed upon the parties to implement on May 1, 1986, all of the provisions that he had awarded up to that point. Over the following weeks, the arbitrator continued to issue awards as to further provisions; the last was served by hand on the parties on June 9, 1986.
On June 25, 1986, the Agency filed exceptions to that portion of the award that was served on April 29, 1986. Those exceptions, which were designated Case No. 0-AR-1176, were dismissed as untimely in U.S. Department of Commerce, Patent and Trademark Office (PTO) and Patent Office Professional Association (POPA), 24 FLRA 835 (1986). By memorandum dated May 30, 1986, the Agency notified the Union that pursuant to section 7114(c) of the Statute the Agency head had disapproved certain of the provisions contained in that portion of the arbitrator's award. The Union filed the negotiability petition in Case No. 0-NG-1287 in response to the Agency's May 30, 1986, memorandum.
By memorandum dated and served on the Union on June 26, 1986, the Agency notified the Union that certain of the provisions awarded by the arbitrator during the period extending between May 1 and June 9 had been disapproved. The Union filed the negotiability petition in Case No. 0-NG-1296 in response to the Agency's June 26 memorandum.
The Union contends that the Agency head disapproval that is the subject of Case No. 0-NG-1287 is untimely in whole and that the disapproval that is the subject of Case No. 0-NG-1296 is untimely with respect to all but provisions in articles 12 and 35. In support of this contention, the Union argues that the 30-day time limit for disapproval of a particular provision ran from the date on which that provision was awarded. The Agency, on the other hand, argues that June 9, 1986, the date on which the last installment of the arbitrator's award was issued, should constitute the date of execution for purposes of section 7114(c) agency head review.
Under section 7114(c) of the Statute, an agreement between any agency and an exclusive representative "shall be subject" to approval by the head of the agency. The agency head is required to act within 30 days from the date that the agreement is executed. If the agency head does not approve or disapprove the agreement within the 30-day period, the agreement takes effect automatically on the thirty-first day. See, for example, Federal Employees Metal Trades Council of Charleston and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 35 FLRA 1091, 1093 (1990).
The Authority has held that it is "the agreement," not a portion thereof, that is subject to agency head approval under section 7114(c). For example, U.S. Department of the Army, Watervliet Arsenal, Watervliet, New York, 34 FLRA 98, 105 (1989) (Watervliet Arsenal); Department of the Interior, National Park Service, Colonial National Historical Park, Yorktown, Virginia, 20 FLRA 537, 541 (1985) (Colonial National Historical Park, Yorktown), aff'd sub nom. National Association of Government Employees, Local R4-68 v. FLRA, 802 F.2d 1484 (4th Cir. 1986). Where an agency head timely disapproves an agreement under section 7114(c) of the Statute, the agreement does not take effect and is not binding on the parties. Watervliet Arsenal, 34 FLRA at 105. Of course, parties may agree to implement all portions of the local agreement not specifically disapproved by the agency head. Id.
For the purposes of the agency head review process, we believe that section 7114(c) contemplates that an agreement generally will be treated as an integrated and complete document rather than as a collection of articles and sections. This principle is consistent with the Authority's precedent that "the agreement, not a portion thereof," is subject to agency head approval under section 7114(c). Watervliet Arsenal; Colonial National Historical Park, Yorktown. To hold otherwise would produce chaotic results. That is, if we were to hold that each individual provision was subject separately to the approval process a situation could result where some portions of the same agreement were approved, some were disapproved, and some went into effect automatically based on an agency's failure to act within the 30-day time limit. Additionally, given the nature of negotiations, it could be very difficult to reliably ascertain the execution date of a particular provision. In this regard, we note that give and take is one of the cornerstones of collective bargaining. Thus, it would not be unusual for parties having reached tentative agreement on a particular provision to reconsider that agreement in efforts to come to an agreement on another provision. Moreover, one segment of an agreement may affect the meaning of another segment. For example, in this case, one of the last articles awarded by the arbitrator related to "definitions." Agency statement of position at 2, Case No. 0-NG-1287. It is not unreasonable to assume that the definitions could affect the meaning of previously awarded articles.
For these reasons we hold that the date of execution that triggers the time limits for agency head review under section 7114(c)(2) relates to the date on which no further action is necessary to finalize a complete agreement, not the dates on which agreement is reached as to individual pieces of that agreement.(1) See Panama Canal Commission, 36 FLRA at 559-62 (in circumstances where an interest arbitrator's decision encompassed the parties' entire agreement, the date of the arbitrator's award constituted the date of execution for purposes of section 7114(c) review); see also American Federation of Government Employees, National Veterans Affairs Council and U.S. Department of Veterans Affairs, Veterans Health Services and Research Administration, Washington, D.C., 40 FLRA 195, 201 (1991) (where the agency did not assert, and there was no other basis in the record on which to conclude, that any further actions were necessary after issuance of a Panel decision for the parties to "execute" the Panel decision, that decision became final and subject to agency head review as of the date it was issued); compare National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois, 39 FLRA 848, 848-49 (1991), petition for review filed as to other matters sub nom. Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois, v. FLRA, No. 91-1194 (D.C. Cir. Apr. 26, 1991) (where the parties engaged in substantive negotiations subsequent to the issuance of an interest arbitrator's award, the issuance of the award did not trigger the 30-day time limit for agency head review under section 7114(c) of the Statute).
Based on the foregoing and the facts of this case, we conclude that the parties' agreement was not executed and ripe for agency head review until June 9, 1986, when the last portion of the interest arbitrator's award was issued.(2)
We further conclude that the Agency head timely disapproved the agreement in these cases. The Authority has previously stated that section 7114(c) of the Statute contemplates that approval or disapproval will occur only after the agreement has been executed. American Federation of Government Employees, AFL-CIO, National Immigration & Naturalization Service Council and U.S. Department of Justice, Immigration & Naturalization Service, 8 FLRA 347, 380-81 (1982), reversed as to other matters sub nom. United States Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983). "Execution" for purposes of section 7114(c) review does not occur until negotiations relating to the agreement being executed are completed. Consequently, based on the circumstances of this case, the Agency head's May 30, 1986, disapproval memorandum, which was based on review of a partially completed agreement, was premature. Based on the June 9 execution date, however, the Agency head's disapproval memorandum that was served on June 26, 1986, was timely and served to disapprove the entire agreement. See Colonial National Historical Park, Yorktown.
As a logical extension of our previous discussion, the Union's petition in Case No. 0-NG-1287, which was based on the May 30 memorandum and predated the June 26 memorandum, would not be properly before us. Under section 7117(c)(2) of the Statute, a petition for review must be filed on or before the 15th day after the date on which the agency involved makes its allegation of nonnegotiability. However, in the circumstances of this case and particularly in view of the unsettled nature of precedent concerning agency head review of provisions contained in an interest arbitrator's award, it would not promote the purposes and policies of the Statute to dismiss the Union's petition in Case No. 0-NG-1287. Consequently, we will treat the Agency's May 30 memorandum as tantamount to an unsolicited allegation of nonnegotiability for purposes of filing a petition for review of a negotiability issue. If treated as such, the Union's petition in Case No. 0-NG-1287, which was filed on June 16, 1986, is properly before us. See, for example, National Federation of Federal Employees, Local 422 and U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency, 34 FLRA 721, 723-24 (1990) (where an agency provides an unsolicited allegation of nonnegotiability, the union has the option of filing an appeal based on that allegation; however, any appeal must meet the time limits established in section 2424.3 of the Authority's regulations). In this regard, the Agency head's May 30, 1986, memorandum appears to have been hand-delivered to the Union. The fifteenth day following delivery was June 14, 1986, which was a Saturday. Consequently, under section 2429.21 of the Authority's rules and regulations, the Union had until close of business on June 16 in which to file an appeal.
C. Summary
The interest arbitration proceeding that was involved in these two cases arose under section 7119(b)(1) of the Statute. Consequently, the provisions of the agreement imposed by the arbitrator were subject to agency head review under section 7114(c) of the Statute.
The agreement was not ripe for agency head review until the arbitrator's entire award had been issued. Therefore, although the agency head's May 30 memorandum was premature for purposes of serving as a disapproval under section 7114(c) of the Statute, the June 26 memorandum served as a timely disapproval of the agreement. We will, however, treat the May 30 memorandum as tantamount to an unsolicited allegation of nonnegotiability for purposes of determining whether the Union's petition in Case No. 0-NG-1287 is properly before us. Treating it as such, the Union's petition is properly before us. We will now proceed to rule on the negotiability of the provisions that are at issue in the Union's petitions in Cases Nos. 0-NG-1287 and 0-NG-1296.(3)
III. Provision 1
Nothing in this Article shall affect the authority of the Office to take actions that are absolutely necessary for the functioning of [the] [A]gency.
A. Positions of the Parties
The Agency contends that Provision 1 is defective because neither the plain language of the provision nor the Union's statement of intent "mention[s] the FLRA standard of 'overriding exigency.'" Agency statement of position in Case No. 0-NG-1287 at 6. In support of its contention that the provision must recognize an "overriding exigency" standard, the Agency cites the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004 (1982) (Proposal 8) (U.S. Marshals Service).
The Union describes Provision 1 as intended to implement section 7106(a)(2)(D) of the Statute in the context of the contractual article on mid-term bargaining. The Union asserts that the case upon which the Agency relies supports a conclusion that the Authority sanctions "varying formulations of the test to be used in a maintenance of standards clause." Union reply brief in Case No. 0-NG-1287 at 7. The Union asserts that the correct test for determining whether Provision 1 is nonnegotiable is whether it would prevent the Agency from acting at all.
B. Analysis and Conclusions
At the outset, we note that Proposal 8 in U.S. Marshals Service did not rely on the application or interpretation of section 7106(a)(2)(D) for its disposition. Rather, it concerned the circumstances under which the agency would be obligated to maintain the status quo pending completion of the negotiation process. Section 7106(a)(2)(D) concerns the right of an agency to take actions in the event of an emergency. Therefore, Proposal 8 in U.S. Marshals Service is inapposite to the issue raised by Provision 1.
In our view, the question to be resolved in determining whether Provision 1 directly interferes with the Agency's management right under section 7106(a)(2)(D) is whether Provision 1 imposes a more stringent standard on the Agency's ability to act than section 7106(a)(2)(D) does. The latter vests an agency with the authority "to take whatever actions may be necessary to carry out the agency mission during emergencies." Provision 1 would define the Agency's authority as encompassing actions "that are absolutely necessary for the functioning of the [A]gency." While qualifying "necessary" with "absolutely" arguably is superfluous, it nevertheless adds a nuance to the statutory standard. As a result, a higher degree of necessity would be required in order for an action to be authorized than would be required under a standard of "necessary" standing alone. Consequently, we conclude that Provision 1 directly interferes with management's right to take whatever action may be necessary to carry out the Agency mission during emergencies because it substitutes a stricter standard than that set forth in section 7106(a)(2)(D). Compare American Federation of Government Employees, AFL-CIO, National EPA Council and Environmental Protection Agency, 35 FLRA 139 (1990) (proposal was negotiable because it was not more restrictive than applicable legal requirements).
The Union makes no claim that this provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and no basis for considering the applicability of that section to this provision is otherwise apparent to us. Therefore, we do not consider whether this provision is negotiable under section 7106(b)(3) notwithstanding its direct interference with management's right under section 7106(a)(2)(D). Based on the foregoing, we conclude that Provision 1 is not within the duty to bargain.
IV. Provisions 2 and 3
B. Whenever an Association official spends, over a two[-]year period, less than 40% of his/her duty hours per bi-week on examining related activities, the official, upon returning to substantially full[-]time examining duties, will be given a reasonable retraining period (without loss of grade or status) of at least 120 days.
C. During the retraining period, there shall be no formal evaluations with respect to quality and quantity that could result in adverse consequences to the Association official. However, supervisors are encouraged to informally evaluate and counsel officials during the retraining period. After the retraining period, no record shall be kept regarding any informal evaluation. If during that 120 day period there is a reassignment (e.g., a docket change), the retraining period shall be restarted from the date of the reassignment. After the retraining period, the official shall only be formally evaluated by, and in accordance with, regular evaluations and regular evaluation procedures that apply to full time examiners; there shall be no special evaluations for former Association officials.
A. Positions of the Parties
1. The Agency
The Agency asserts that Provision 2 interferes with its management right to assign work because it would dictate that certain employees be given training. The Agency contends that the right to assign work encompasses the right to establish the timing, duration and nature of training. Moreover, the Agency asserts that under Provision 2 the circumstances that give rise to the requirement for the training are the result of factors that are not within the control of management but are a consequence of the employee's personal choice to engage in, and to cease engaging in, union activities or are due to internal union affairs, such as where a union representative is voted out of office.
The Agency contends that Provision 3 is similar to proposals that have been found to be contrary to management's rights because they required that formal training be given or placed conditions on management's right to evaluate employees. The Agency, relying on Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324 (4th Cir. 1986) (SSA v. FLRA), asserts that Provision 3 is not negotiable as an appropriate arrangement. The Agency asserts that Provision 3 also is inconsistent with law and Government-wide regulations concerning within-grade increases; specifically, 5 U.S.C. § 5335 and 5 C.F.R. §§ 531.509(e), 531.404(a), 531.509(b), 531.404(a)(1). The Agency contends that Provision 3 is nonnegotiable on the additional ground that it is inconsistent with Government-wide regulations that govern performance appraisal systems, specifically, 5 C.F.R. §§ 330.204(b) [sic], 430.205(a); 430.204(j) and 432.203.
Finally, the Agency asserts that both Provisions 2 and 3 are nonnegotiable because they discriminate between Union officials and other employees. The Agency argues that such discrimination is contrary to section 7116(a)(2) and (b)(2) of the Statute and cites private sector precedent concerning grants of "superseniority" to Union officials in support of its position.(4)
2. The Union
The Union describes Provisions 2 and 3 as having been generated in response to the Agency's demand, made in the context of negotiations over the official time provisions of the agreement, that any Union official who had spent less than 40 percent of his/her time on examining duties in a 2-year period be required to "requalify" for his/her position. Opposition in Case No. 0-AR-1176 at 4, submitted as an attachment to and incorporated into Union reply brief in Case No. 0-NG-1287. The Union asserts that such a requirement would virtually guarantee removal or demotion of some Union representatives. According to the Union, such would result because the productivity standards applicable to employees are based on the assumption that each examiner has a "full docket" of partially processed cases and because the standards for initially qualifying for signatory authority are higher than the standard for retaining that authority.(5) Opposition in Case No. 0-AR-1176 at 4.
The Union describes Provisions 2 and 3 as intended to provide Union officials who have been away from their "regular jobs" for an extended period with an opportunity to rebuild a docket and learn changes that have occurred in technology and patent procedures before being required to meet the quantity and quality standards of their performance appraisal plans. Id. at 5. The Union describes Provision 2 as establishing the prerequisites for eligibility for the retraining period and defining the extent of that retraining period and Provision 3 as defining what happens during the retraining period; i.e., that no evaluations that would result in adverse consequences to the Union official would occur. As to the latter provision the Union contends that it would foreclose evaluation of only the work done during the retraining period and would allow evaluations during that period as long as they are based on work done prior to the period.
The Union describes Provisions 2 and 3 as intended to constitute an appropriate arrangement for employees adversely affected by the exercise of management rights. Specifically, it contends that an employee who has been performing examining duties for minimal amounts of time over a substantial period of time would be disadvantaged by being subjected to qualitative and quantitative standards that assume a full docket of partially processed cases and constant contact with current technology and procedures. It contends that the provisions reflect the Agency's past practice of allowing employees returning from details and the like a reasonable amount of time to learn about changes in technology and procedure.
The Union disputes the Agency's contentions that these provisions are inconsistent with statutory and regulatory provisions relating to within-grade increases and performance appraisal systems. In response to the Agency's arguments to the effect that these provisions would amount to discrimination between Union officials and other employees, the Union presents an alternative theory as to why the provisions are negotiable. Specifically, the Union argues that the provisions should be treated as an "additional grant of official time under Section 7131(d)" of the Statute. Id. at 9.
B. Analysis and Conclusions
1. Management's Rights
The language of Provision 2 is couched in terms of requiring a "retraining" period for Union officials who are returning to "substantially full[-]time examining duties." However, when read in context with Provision 3 and the Union's statement of intent, we conclude that a more accurate description of Provisions 2 and 3 is that they establish a transition period in which such officials are afforded an opportunity to brush up on their job-related knowledge and skills and rebuild their case docket without being subjected to strict application of performance standards. Provisions 2 and 3 do not prescribe a specific training program that must be afforded such officials during this "retraining," or transition, period. Consequently, we find that the Agency's arguments to the effect that Provision 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) because it would prescribe a training program are misplaced. Rather, Provisions 2 and 3 concern management rights only insofar as they relate to performance appraisal systems.
Provisions 2 and 3 require that accommodations be made for Union officials who are returning to substantially full-time examining duties insofar as they concern the productivity standards that they will be expected to meet. Provision 2 establishes the circumstances under which the accommodations must be made and Provision 3 specifies the accommodations that will be made; namely, that no work done during the retraining period will be subject to formal evaluation.
It is well established that management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute include the right to identify critical elements of performance and establish performance standards. For example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 39 FLRA 731 (1991) (Provision 1) (IRS).
Proposals that absolve employees of accountability for meeting specific levels of performance directly interfere with management's rights to direct employees and assign work because they preclude management from establishing performance standards to evaluate employees in all circumstances. See National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 63-65 (1988). Similarly, proposals that make adjustments or changes in production expectations directly interfere with management's rights to direct employees and assign work because they interfere with management's discretion to determine the standards of work production to be required of employees. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Mid-America Program Service Center, Kansas City, Missouri, 33 FLRA 454, 461-62 (1988); Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1398 (1987), affirmed as to other matters sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989).
As written and explained by the Union, Provisions 2 and 3 would have the effect of requiring that production expectations be altered for Union officials during the prescribed retraining period. Consequently, they directly interfere with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. See IRS, 39 FLRA at 733-34 (provision that would exempt union officials from measured evaluation directly interferes with the rights to direct employees and to assign work).
A provision that directly interferes with a management right under section 7106 of the Statute is, nevertheless, negotiable if it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. In determining whether a proposal is an appropriate arrangement, the Authority first determines whether the proposal 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." National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG).
In earlier cases the Authority, relying on the case cited by the Agency, SSA v. FLRA, 791 F.2d 324, held, as a matter of course, that the "establishment of job requirements . . . does not by itself adversely affect employees." For example Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA 700, 703 (1987) (OEA). That approach was subsequently rejected by the U.S. Court of Appeals for the District of Columbia in Overseas Education Association, Inc. v. FLRA, 876 F.2d 960 (D.C. Cir. 1989), reversing OEA. The court held that the Authority should consider the facts bearing on the issue in determining whether job requirements adversely affect employees. The Authority adopted the court's fact-based analytical approach in West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1011-14 (1990) (West Point Elementary School). If a 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. KANG, 21 FLRA at 31-33. This is accomplished by weighing the competing practical needs of employees and management. Id.
As a threshold matter, we find that Provisions 2 and 3 establish an arrangement for Union officials adversely affected by the exercise of management's rights to direct employees and assign work. The intent of the provisions is to ameliorate the effects of the Agency's established performance standards on Union officials who have spent substantial amounts of time for a substantial period on Union activities rather than on their regular duties. It is reasonable to conclude that absence from regular duties for 60 percent, or more, of the time over a 2-year, or more, period would result in an inability to meet, or at least considerable difficulty in meeting, productivity standards that are premised on full time spent on regular duties. Thus, it is reasonable to conclude that requiring those Union officials to meet immediately the productivity standards that are established for their positions would adversely affect them. Consequently, we find that the provisions are intended as an arrangement for employees adversely affected by the exercise of management rights.
Having concluded that Provisions 2 and 3 constitute an arrangement, we now consider whether that arrangement is appropriate within the meaning of section 7106(b)(3) of the Statute. For the reasons that follow, we conclude that Provisions 2 and 3 excessively interfere with management's rights to direct employees and assign work.
The nature and extent of the adverse effect suffered by employees would be those associated with having to meet performance standards that, under the circumstances, would be impossible or, at best, extremely difficult to meet. That is, as noted, an employee who had been spending a large portion of time on non-examining, but nevertheless legitimate, activities for a substantial period of time would be required to produce at a level expected of an employee who had been devoting full time to examining activities. A negative performance evaluation can result in personnel actions adverse to an employee, which could include denial of a within-grade increase, demotion, and termination. Thus, the nature and extent of the forseeable adverse effects that could flow from productivity standards that do not make any accommodation for time spent on union activities are considerable.
The Agency suggests that the choice to engage in union activities rests with the employee and is not within the Agency's control and, thus, any resulting consequences are the product of factors outside of management's control. Under section 7102 of the Statute, employees have a statutory right to engage in such activities.(6) This is consistent with one of the underlying policies of the Statute that labor organizations and collective bargaining in the civil service are in the public interest. 5 U.S.C. § 7101. In furtherance of this right and policy, section 7131 of the Statute specifically authorizes negotiation of official time to accommodate employees who engage in activity on behalf of a union. Clearly, the Statute seeks to minimize any adverse effects on employees that might result from union activity. See also 5 U.S.C. § 7116. Thus, we reject a view that an employee's choice to engage in union activities on official time makes the employee culpable, in whole or in part, for any adverse effects on his or her career that result. Rather, we believe that the adverse effects should be viewed as a product of performance standards that make no allowance for time legitimately spent on non-examining activities. As management retains the right to establish performance standards, employees have little, if any, control over the productivity expectations placed on them.
Clearly, an allowance regarding expected production levels made for time spent in union activities offers a significant benefit to affected employees in that it ensures that employees engaged in representational activities will not be penalized because of such activity. However, the Agency has a significant interest in being able to hold employees accountable for their performance by establishing and enforcing performance standards.
While offering significant benefits to employees, Provisions 2 and 3 place severe restrictions on management's rights to direct employees and assign work. Specifically, Provisions 2 and 3 effectively prohibit any formal evaluation of work performed during the retraining period.(7) For example, these provisions would prevent the Agency even from holding an employee accountable for work defects that are not attributable to circumstances caused by the employee having spent a significant amount of time on protected activity. Thus, these provisions would severely hamper the Agency's ability to hold employees accountable for their work performance during that period. Consequently, we conclude that the interference with management's rights is excessive and outweighs the benefit to employees and that Provisions 2 and 3 do not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See IRS, 39 FLRA at 735-36. Provisions 2 and 3, therefore, are nonnegotiable.
In reaching this conclusion we note that the restrictions that these two provisions would place on management's rights are more stringent than those posed by sections B through E of Proposal 1 in National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., 40 FLRA 570 (1991). In that case, sections B through E essentially required that time spent by an employee on union representational functions would not be considered as a negative factor in evaluating the employee and that consideration be given to, and reasonable accommodations be made for, time spent on representational functions in the performance appraisal process. In contrast to Provisions 2 and 3, those sections did not foreclose evaluation of work performed be employees during a given period.
2. The Applicability of 5 U.S.C. § 7131(d)
The Union argues that these provisions could be viewed as involving an additional grant of official time under section 7131(d) of the Statute. Under that section, parties to a collective bargaining relationship may negotiate over grants of amounts of official time. Although Provisions 2 and 3 address the consequences of use of official time on an employee's ability to meet production expectations, they do not, by their terms, seek an amount of official time. Therefore, we conclude that section 7131(d) is inapplicable to Provisions 2 and 3 and reject the Union's claims in that regard.
3. Summary
Provisions 2 and 3 excessively interfere with management's rights to direct employees and assign work. In view of this conclusion, it is unnecessary to, and we do not, address the Agency's arguments that these provisions are nonnegotiable for the additional reasons that they are inconsistent with 5 U.S.C. § 7116(a)(2) and (b)(2) and that Provision 3 is inconsistent with various laws and Government-wide regulations that relate to within-grade increases and performance appraisal systems.
V. Provision 4
Prior to the announcement of a vacancy, the Office shall appoint an evaluation panel to evaluate and rank the candidates for the vacancy. The panel will consist of persons who are at least one grade higher than the highest grade assignable to the vacancy and, where possible, shall include no more than one person under the jurisdiction of the second line supervisor.
A. Positions of the Parties
The Agency argues that the second sentence of this provision "sets parameters" within which management may appoint members of evaluation panels that rate and rank candidates for vacancies. Agency statement of position in Case No. 0-NG-1296 at 4. The Agency asserts that by establishing such parameters, the provision "attempts to compel the selection of certain employees within a single supervisory category" and subject such selections to arbitral review. Id. The Agency contends that, therefore, this provision is inconsistent with management's right under section 7106(a)(2)(B) to determine the personnel by which agency operations shall be conducted and is nonnegotiable.
The Union describes this provision as providing a procedure by which an "impartial and equitable" evaluation panel will be chosen to rate and rank candidates for promotion. Union reply brief in Case No. 0-NG-1296 at 7. The Union states that the provision only precludes a class of employees from being on panels rather than specifying that particular persons be appointed to those panels. The Union contends that it is contrary to "general merit principles" enunciated in 5 U.S.C. § 2301(b)(1) and (2) to appoint persons with obvious conflicts of interest to promotion evaluation panels. Id. The Union argues that this provision does not directly interfere with management's rights and does not prevent the Agency from acting at all. Finally, the Union asserts that this provision refers to an Agency practice that has been in effect for 20 years.
B. Analysis and Conclusions
In arguing that Provision 4 is nonnegotiable, the Agency refers only to the second sentence. Therefore, we conclude that sentence 1 is not in dispute. See National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362 (1990) (Naval Plant Representative Office, St. Louis) (provision requiring only that a ranking panel be used where three or more qualified applicants are identified held negotiable). Accordingly, we will address only the second sentence.
The Authority has previously held that proposals that prohibit agencies from selecting specified employees or types of employees to serve on rating and ranking panels directly interfere with management's right to assign work. For example, American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Navy Resale Activity/Navy Exchange, Naval Weapons Station, Charleston, South Carolina, 35 FLRA 1128 (1990) (Proposal 4) (Naval Weapons Station, Charleston); National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422, 423-24 (1987) (Financial Management Service). In considering those proposals, the Authority noted that employees appointed to ranking panels are performing work for an agency and that their selection involves a work assignment by an agency to the selected individuals. The Authority has consistently held that the right to assign work under section 7106(a)(2)(B) of the Statute includes the discretion to determine "the particular employees to whom or positions to which [work] will be assigned." National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980) (Public Debt), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).
A proposal that prohibits an agency from selecting particular employees, such as those at a particular grade level, as members of a ranking panel prevents management from assigning duties to those particular employees and directly interferes with management's right to assign work under section 7106(a)(2)(B). Naval Weapons Station, Charleston and Financial Management Service. Like the proposals found nonnegotiable in Naval Weapons Station, Charleston and Financial Management Service, the second sentence of Provision 4 would restrict the Agency from assigning the duty of participating on ranking panels to particular employees. Therefore, for the reasons expressed in those decisions, it directly interferes with management's right to assign work.
It is not clear how the Union's arguments concerning "general merit principles" relate to the issue of the negotiability of the provision. If the Union intends by this argument to claim that this provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, we reject the claim as unsupported. In our view, the Union's statement that "[o]bviously, there would be a conflict of interest when panel members are at the same grade as the candidate and might compete with the candidates for the next promotion" is speculative. Union reply brief in Case No. 0-NG-1296 at 7. Provisions addressing "purely speculative or hypothetical concerns" do not constitute arrangements under the Authority's appropriate arrangements analysis. See, for example, West Point Elementary School, 34 FLRA at 1012. Thus, we find that the Union's arguments concerning Provision 4 do not raise a valid claim that the provision constitutes an appropriate arrangement under section 7106(b)(3).
Nor does the Union's assertion that the provision reflects a long-standing Agency practice overcome the fact that it directly interferes with a management right. Proposals that are nonnegotiable under section 7106(a) do not become negotiable based on management actions. For example, Philadelphia Metal Trades Council and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 38 FLRA 59, 62 (1990). For the foregoing reasons, we conclude that the disputed portion of Provision 4 nonnegotiable.
Finally, in view of our determination that the disputed portion of the provision is nonnegotiable based on its direct interference with management's right to assign work, we do not address the Agency's assertion that it directly interferes with management's right to determine the personnel by which Agency operations shall be conducted.
VI. Provisions 5, 6, and 7
The selecting official will personally discuss with candidates any questions they may have about their non-selection.
When requested by a competing applicant, the Office shall furnish the following information after the action has been completed:
4. Any other relevant information the applicant may require to prosecute a grievance or other challenge.
A copy of the written grievance shall be furnished to the next higher management official with authority to resolve the matter causing dissatisfaction or the next higher Association official in the case of an Office grievance. The official shall answer the merits of the grievance, provide any pertinent information relevant to the grievance, and present any allegations of procedural deficiencies within ten (10) calendar days of filing the formal grievance. The official's answer shall clearly indicate the reason(s) for his/her position and shall address the points raised by the grievant in the formal grievance. The grievant may file exceptions within ten (10) calendar days of receipt of the official's answer. The grievant's exceptions (if any) shall become a part of the grievance file.
A. Positions of the Parties
The Agency raises a common objection to the negotiability of all three of these provisions. That is, the Agency asserts that the provisions do not acknowledge restrictions on the release of information that exist under the Privacy Act, 5 U.S.C. § 552a, or "other applicable law or regulation," and the provisions are, therefore, inconsistent with law. Agency statement of position in Case No. 0-NG-1296 at 6.
The Union specifically states that all three provisions are intended to be read in conjunction with Article 2, section 1, of the parties' agreement, which states that administration of the agreement is governed by existing or future laws. The Union asserts that where the Privacy Act prohibits providing information, these provisions are not intended to require disclosure. Where, however, there is a dispute as to whether disclosure of information is prohibited by the Privacy Act, the Union states that the issue may be resolved on a case-by-case basis through appropriate means such as the negotiated grievance procedure, court action, or an unfair labor practice proceeding. Union reply brief in Case No. 0-NG-1296 at 7-9.
B. Analysis and Conclusions
Although the Agency refers generally to applicable laws and regulations in arguing that these three provisions are nonnegotiable, the only specific law or regulation cited is the Privacy Act. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. For example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 711-12 (1990) (EPA I); National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982) (NFFE, L. 1167 v. FLRA), aff'g 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). A party failing to meet this burden acts at its peril. For example, National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990).
It is not apparent to us what, if any, laws and regulations relating to the disclosure of information, other than the Privacy Act, might apply to these provisions. Consequently, we will limit our consideration to the Privacy Act.
Here, the Union specifically states that these provisions are not intended to require the release of information where such is inconsistent with the Privacy Act. In this regard, the Union states that the parties have agreed in Article 2, Section 1, a provision not in dispute, that the contract will be governed by existing and future statutes. Provisions 5, 6, and 7 make generalized references to "any" information; however, there is nothing in their plain language that specifically requires the disclosure of information notwithstanding the Privacy Act. Compare National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, Department of Military Affairs, Springfield, Illinois, 39 FLRA 1087 (1991) (Proposal 1), appealed as to other matters sub nom. U.S. Department of Defense, Department of Military Affairs v