42:0527(34)NG - - AFGE, Dept. of Education Council of AFGE Locals and Dept. of Education - - 1991 FLRAdec NG - - v42 p527



[ v42 p527 ]
42:0527(34)NG
The decision of the Authority follows:


42 FLRA No. 34

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

DEPARTMENT OF EDUCATION COUNCIL OF AFGE LOCALS

(Union)

and

U.S. DEPARTMENT OF EDUCATION

(Agency)

0-NG-1593

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

September 27, 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 under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) concerning one proposal that requires the Agency to comply with its regulations governing personnel policies and practices. For the following reasons, we find that the proposal is negotiable.

II. Preliminary Matters

A. Procedural Issue

The Agency asserts that the petition for review should be dismissed because the proposal is moot. According to the Agency, the proposal was withdrawn by the Union, "subject to satisfactory agreement on the scope of the grievance procedure which would permit enforcement of personnel policies and regulations through the grievance procedure[.]" Statement of Position at 2.

The Union claims that its offer to withdraw the proposal was conditioned on management's acceptance of alternative proposals. According to the Union, no agreement was reached on the alternative proposals and, as a result, the proposal in this case was not withdrawn.

In light of the Union's position, and in the absence of any evidence supporting the Agency's argument, we conclude that the record before us does not establish that the proposal is moot. Accordingly, as the Agency has declared the proposal nonnegotiable, we conclude that the petition for review is properly before us. See Overseas Education Association and Department of Defense, Dependents Schools, 39 FLRA 153, 178-79 (1991).

B. Supplemental Briefs

During the pendency of this appeal, the United States Supreme Court issued its decision in Department of the Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990) (IRS v. FLRA). Subsequently, at the Authority's request, the parties submitted supplemental briefs addressing the impact of IRS v. FLRA on the issues in this case.

III. Proposal

The employer shall comply with its own regulations governing personnel policies and practices, and general conditions of employment whether such regulations are discretionary or mandatory and whether or not such regulations involve an exercise of a management right. This section shall not be construed to require management to issue, change, or retain a regulation but is intended to effectuate stability and fairness in implementing regulations.

IV. Positions of the Parties

A. The Agency

The Agency asserts first that the proposal is not sufficiently specific for the Authority to determine its negotiability. The Agency claims that the proposal is subject to differing interpretations:

One interpretation is that the proposal's requirement that the agency must comply with its own regulations . . . refers to the application of the regulations. . . . Another interpretation is that the proposal's requirement of compliance with agency regulations . . . refers to the decision to establish the regulation in the first place.

Statement of Position at 2-3 (footnote omitted).

The Agency also argues that the proposal interferes with the exercise of management's rights under section 7106 of the Statute. The Agency claims that the proposal would require the Agency to comply with all provisions of its regulations, including provisions that are discretionary or involve the exercise of management rights. In addition, the Agency argues that, as many of its regulations address the process by which the Agency reaches decisions on matters involving management rights, the proposal would allow the Union to interject itself into the Agency's deliberative processes. The Agency claims that the proposal does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute because it "is not responsive to any identified adverse impact, and its blanket coverage . . . would constitute an excessive interference with management rights." Statement of Position at 4.

The Agency argues further that the proposal is nonnegotiable even if it requires compliance with only the mandatory aspects of Agency regulations. Although the Agency acknowledges its obligation to comply with its regulations, it contends that the proposal would "implicitly confer subject matter jurisdiction to arbitrate matters which have been held by the courts to be non-justiciable." Id. at 5. As examples, the Agency claims that decisions concerning contracting-out and decisions to deny security clearances would be subject to arbitration under the proposal.

In its supplemental brief, the Agency argues that, consistent with IRS v. FLRA, management rights under section 7106(a) of the Statute are limited only by applicable law outside the Statute. The Agency asserts that "internally published [A]gency policies or 'regulations' may not be enforced by the Union any more than external constraints which fall short of applicable laws." Agency Supplemental Brief at 3. The Agency maintains that "no reasonable construction of the Statute could yield an interpretation that would include internal [A]gency policies" within the scope of applicable laws. Id. at 4. The Agency states, in this regard, that:

[w]hether or not the Court would read the Statute as allowing a grievance alleging that a management right was not exercised in accordance with applicable law, a fair reading of its IRS decision could not yield the conclusion that a grievance procedure could entertain an allegation that a management right was exercised in accordance with anything less than an applicable law.

Id.

Finally, the Agency asserts that the proposal does not "pertain[] only to procedures which may have been negotiated in accordance with [s]ection 7106(b)(2)." Id. (emphasis in original). According to the Agency, because the proposal would apply both to substantive and procedural Agency regulations, the proposal does not constitute a negotiable procedure under section 7106(b)(2) of the Statute.

B. The Union

The Union argues that the proposal would require only that the Agency maintain "an evenness and stability in applying its regulations." Reply Brief at 10 (emphasis in original). The Union states that:

[w]ith respect to the term "discretionary," meant in the sense of adjective modifying "regulations," it would mean that if the [A]gency modified or promulgated a regulation which included a discretionary provision, it would comply with the procedures for applying that discretionary provision. It would not necessarily mean that it would have to implement a discretionary provision in every case.

Id. The Union also states that "once the [A]gency determined to apply the discretionary provision, it would then be bound by those discretionary provisions." Id. (emphasis in original). The Union cites, in this regard, Service v. Dulles, 354 U.S. 363 (1957), where the Supreme Court held that although the Secretary of State had authority summarily to terminate an employee on certain grounds, his failure to follow agency regulations affording procedural and substantive protections invalidated the termination.

The Union also claims that the proposal merely restates unit employees' rights to rely on published Agency regulations. The Union contends that the proposal "is similar to the standards imposed by Congress in section 706(c) of the Administrative Procedures Act, which empowers reviewing courts to hold unlawful and set aside agency actions found to be 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Reply Brief at 3 (footnote omitted).

The Union denies that the proposal interferes with any management rights. The Union states that the proposal neither requires the Agency to issue any regulations, nor prohibits the Agency from revising or rescinding any existing regulations. The Union points out that the proposal applies only after management has issued a regulation. The Union argues that as the proposal does not require the issuance, revision, or retention of any Agency regulation, including any regulation involving a management right, the proposal "cannot be said to cause an unwilling exercise of that right." Id. at 12.

The Union asserts, in its supplemental brief, that the Supreme Court's decision in IRS v. FLRA is not "germane" in this case because the proposal is intended to apply in accordance with any applicable legal limitations. Union Supplemental Brief at 6. Moreover, the Union states that as the proposal applies to Agency personnel regulations, its coverage "would tend to exclude contracting-out decisions." Id. at 5. In the Union's view

[i]t is unlikely . . . that [Office of Management and Budget] Circular A-76 could be described as a "personnel" regulation investing employees of the bargaining unit with vested rights. Nothing in A-76 provides for rights or appeals concerning the conditions of employment of bargaining unit employees. Employees have a "right" or are "entitled" to have a regulation enforced, when that regulation is meant to promote their own interests. Such does not appear to be the case with OMB Circular A-76.

Id. at 5-6 (footnotes omitted).

V. Analysis and Conclusions

A. The Proposal Is Sufficiently Specific

The proposal applies, by its terms, to existing Agency regulations governing personnel policies and practices and general conditions of employment. Consistent with the plain wording of the proposal, the Union asserts that the proposal does not require the issuance, modification, or retention of any Agency regulations. The Union also states that, where an Agency regulation gives management options as to how it may proceed, management is free to choose any of the available options provided that after an option is chosen, management follows the regulatory requirements pertaining to that option. As the latter Union statement is consistent with the proposal's wording, we adopt it for purposes of this decision. We also note the Agency's uncontradicted statement that it:

issues few regulations, in the technical sense (i.e., published in the Federal Register and codified in the Code of Federal Regulations). Most of the "regulations" to which the Union refers are written Agency policies issued as Personnel Manual Instructions (PMI's) or as Administrative Communications System (ACS) Directives. These extensive systems of Agency policies are designed to supplement law and Government-wide regulation, and to provide for Agency-specific situations not covered by higher authorities.

Statement of Position at 3 n.1.

Based on the proposal's plain wording, the Union's statements of intent, and the undisputed Agency assertion regarding the meaning of the term "regulations," we find that the proposal is sufficiently specific for us to determine its negotiability.

B. Compliance with Law

The Agency asserts that as the proposal encompasses an Agency directive concerning "procedures for classifying positions as 'sensitive' for national security purposes; and for granting or denying security clearances[,]" the proposal would "implicitly confer subject matter jurisdiction to arbitrate matters which have been held by the courts to be non-justiciable." Id. at 5. The Agency cites, in this regard, Department of the Navy v. Egan, 484 U.S. 518 (1988) (Egan). The Agency also cites, without elaboration, Department of Health and Human Services v. FLRA, 844 F.2d 1087 (4th Cir. 1988) (HHS v. FLRA).

We construe the Agency's assertion as an argument that the proposal is inconsistent with law and, so construed, we reject it.

In Egan, the Supreme Court held that agencies have exclusive discretion, under 5 U.S.C. § 7532, to grant or deny security clearances. Such discretion, the Court held, is not subject to review by the Merit Systems Protection Board (MSPB). The limitations imposed in Egan apply also to arbitration under negotiated grievance procedures. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 39 FLRA 1197, 1205 (1991).

However, the Court in Egan did not foreclose all arbitral review of matters involved in, or resulting from, decisions regarding security clearances. The Authority has held that:

Consistent with the Court's decision in Egan, [an] [a]rbitrator may not review the merits of [an] [a]gency's security-clearance determination. [An] [a]rbitrator may, however, determine other issues . . . which do not necessitate a review of the security-clearance determination. Like the MSPB in Egan, [an] [a]rbitrator may confirm that a security clearance is required . . . and may review whether any required procedural protections were provided. In addition, [an] [a]rbitrator may decide any other issues which do not depend on a review of the merits of the security-clearance determination.

United States Information Agency and American Federation of Government Employees, Local 1812, 32 FLRA 739, 745 (1988).

The record before us does not demonstrate that the disputed proposal would permit a scope of arbitral review exceeding the limitations imposed under Egan. The proposal only requires the Agency to adhere to its existing regulations and, as such, would permit an arbitrator to determine whether regulations addressing security clearances were followed. As noted previously, the Agency retains exclusive authority under the proposal to determine the scope of those regulations. Also, as noted previously, the Court's decision in Egan does not foreclose all arbitral review of matters relating to security clearances.

As nothing in the record indicates that the Union intends the proposal to apply so as to render arbitrable security-clearance matters that otherwise are not arbitrable under law, we find no basis on which to conclude that the proposal would subject the merits of Agency determinations regarding security clearances to arbitral review. We note, however, that the proposal would not affect the Agency's right to file exceptions alleging that an arbitration award, which was within the Authority's jurisdiction under section 7122 of the Statute, was deficient as contrary to law.

The Agency also cites, without elaboration, HHS v. FLRA in support of its assertion that the proposal would make arbitrable matters that are not arbitrable under law. In that case, the U.S. Court of Appeals for the Fourth Circuit held, en banc, that a proposal requiring the agency to make contracting-out decisions in accordance with Office of Management and Budget (OMB) Circular A-76 was nonnegotiable because it "would encroach on prerogatives reserved by law to agency management [under section 7106 of the Statute] and because it would create an inconsistency with a government-wide directive . . . ." 844 F.2d at 1088.

To the extent that the Agency intends its citation of HHS v. FLRA to constitute an argument that the proposal violates law, we reject it. First, nothing in the disputed proposal refers to or reasonably can be read as encompassing OMB Circular A-76. Second, there is no assertion before us that the proposal violates Government-wide regulations. Accordingly, we will not address the Agency's argument further. We will, however, discuss the effect of the disputed proposal on management's rights under section 7106 of the Statute.

B. Management Rights under Section 7106 of the Statute

1. Analytical Framework

The proposal encompasses all existing Agency regulations concerning personnel policies and practices and general conditions of employment. As is discussed in more detail below, it is clear and undisputed that the proposal would require compliance with existing Agency regulations affecting or constituting the exercise of management's rights under section 7106 of the Statute.(1) We note, however, that the proposal would not incorporate the terms of the Agency's regulations into the parties' agreement and, therefore, to the extent the regulations affected or constituted the exercise of a management right, the proposal would not impose an independent contractual restriction on such right. Compare National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422, 426-27 (1987) (provision restating portions of Government-wide regulation concerning performance appraisal held to constitute independent contractual limitation on, and interfere with, management's rights to assign work and direct employees).

Previously, the Authority held that proposals requiring an agency to exercise its management rights in accordance with existing regulations were negotiable. For example, National Federation of Federal Employees, Local 1497 and Department of the Air Force, Lowry Air Force Base, Colorado, 9 FLRA 151, 156 (1982). The Authority held that such proposals did not interfere with the exercise of management's rights because they merely required the agency to comply with existing limitations on those rights. Id.

Recently, the Authority reexamined its previous approach to this issue in light of the Supreme Court's holding in IRS v. FLRA that the Statute "does not empower unions to enforce all 'external limitations' on management rights, but only limitations contained in 'applicable laws.'" 110 S. Ct. at 1628. More particularly, as discussed below, the Authority has drawn a distinction between management rights under section 7106(a)(1) of the Statute and those rights encompassed by section 7106(a)(2).

With respect to management's rights under section 7106(a)(1), the Authority has held that as the "literal wording of section 7106(a)(1) . . . does not contain a requirement that management exercise its rights enumerated in that section 'in accordance with applicable laws[,]'" a proposal requiring management to do so directly interferes with such rights. American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1076 (1990) (Member Talkin dissenting as to other matters) (Department of Education), request for reconsideration denied, 39 FLRA 1241 (1991), petition for review filed sub nom. United States Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991). The Authority also held, however, that the exercise of management's rights under section 7106(a)(1) of the Statute is subject to section 7106(b). Id. Accordingly, a proposal requiring management to exercise its section 7106(a)(1) rights in accordance with applicable laws may be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Id. at 1077.

Management's rights under section 7106(a)(2) of the Statute are expressly subject to applicable laws. In National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA No. 31 (1991) (IRS), we held that insofar as section 7106(a)(2) rights are concerned, proposals that require compliance with applicable laws do not interfere with the exercise of such rights. We also held, for reasons discussed fully in IRS, that the term "applicable laws" in section 7106(a)(2) includes, among other things, rules and regulations having "the force and effect of law." Id., slip op. at 15.

In IRS we held that agency regulations must have certain substantive and procedural characteristics in order to constitute regulations having the force and effect of law. Specifically, agency regulations have the force and effect of law, so as to constitute applicable laws, if they: (1) are promulgated pursuant to an explicit or implicit delegation of legislative authority by Congress; (2) affect individual rights and obligations; and (3) are promulgated in accordance with applicable procedural requirements. Id., slip op. at 15-17. Like rights under section 7106(a)(1) of the Statute, management's rights under section 7106(a)(2) are subject to section 7106(b). Accordingly, proposals that directly interfere with the exercise of management's rights under section 7106(a)(2) may be negotiable as appropriate arrangements under section 7106(b)(3).

In sum, proposals that require an agency to exercise its rights under section 7106(a)(2) of the Statute in accordance with applicable laws, as defined in IRS, do not directly interfere with those rights. However, proposals that require compliance with applicable laws in the exercise of rights under section 7106(a)(1) of the Statute do directly interfere with those rights. Nevertheless, proposals that directly interfere with rights under section 7106(a)(1) or (2) may be negotiable as appropriate arrangements under section 7106(b)(3) of the Statute.

2. Application of the Analytical Framework to this Case

a. Direct Interference

As noted previously, the proposal applies to all existing Agency regulations governing personnel policies and practices and general conditions of employment. Consistent with the plain wording of the proposal, and the Agency's undisputed assertions, we find that the proposal encompasses regulations affecting the exercise of management's rights under section 7106(a)(1) and (2) of the Statute.(2)

To the extent that the proposal encompasses Agency regulations affecting the exercise of management's rights under section 7106(a)(1) of the Statute, it would require the Agency to exercise such rights in accordance with whatever limitations exist in the regulations. That is, the proposal would require compliance with existing "external limitations" on the exercise of such rights. Department of Education, 38 FLRA at 1076. As such, the proposal directly interferes with the exercise of the Agency's rights under section 7106(a)(1). See id. See also, for example, U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690, 712-13 (1991) (Transportation), petition for review filed sub nom. Professional Airways Systems Specialists Division, District No. 1-MEBA/NMU, AFL-CIO v. FLRA, No. 91-1310 (D.C. Cir. June 28, 1991) (portion of disputed proposal requiring the agency to comply with Government-wide regulations held to directly interfere with the agency's right to determine its internal security practices under section 7106(a)(1) of the Statute).

The proposal also would require compliance with Agency regulations affecting the exercise of management's rights under section 7106(a)(2) of the Statute.(3) Insofar as these regulations constitute applicable laws, as defined in IRS, the proposal would not directly interfere with the Agency's section 7106(a)(2) rights.

The record before us does not provide a basis on which to determine whether the Agency's regulations constitute applicable laws. However, consistent with the Agency's undisputed assertions that it "issues few regulations, in the technical sense[,]" Statement of Position at 3, and that most of the regulations encompassed by the proposal are written Agency policies or directives, it is reasonable to assume that the proposal would encompass at least some regulations which do not constitute applicable laws. It also is reasonable to assume, and there is no assertion to the contrary, that at least some of the disputed regulations contain substantive restrictions on the Agency's section 7106(a)(2) rights. Accordingly, without addressing whether requiring compliance with existing regulations which do not contain such substantive limitations would directly interfere with such rights, we find that to the extent the proposal requires compliance with Agency regulations containing substantive restrictions on the exercise of management's rights, the proposal directly interferes with the exercise of the Agency's rights under section 7106(a)(2) of the Statute.

b. Deliberative Process

Although we conclude that the proposal directly interferes with the exercise of the Agency's rights under section 7106(a)(1) and (2) of the Statute, we reject, as unsupported, the Agency's argument that the proposal would enable the Union improperly to interject itself into the Agency's deliberative processes.

The Agency cites, with respect to this argument, American Federation of Government Employees, Local 2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987) (AFGE Local 2094). In that case, the proposal, held nonnegotiable, allowed the union to observe the proceedings of the agency's Position Management Committee. Nothing in the wording of the proposal before us now, however, would obligate the Agency to allow a Union representative to observe or participate in managerial deliberations. Moreover, nothing in the Union's statement of intent indicates that the Union interprets the proposal as providing for such observation or participation. Accordingly, the Agency's reliance on AFGE Local 2094 is misplaced.

Moreover, insofar as the Agency is arguing that the proposal improperly would allow the substitution of an arbitrator's judgment for that of the Agency in the exercise of management rights, that argument was addressed and rejected in Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 635-37 (1987) ("[t]he question of any impermissible arbitral interference with management's rights must be directed to the merits, including remedy, of an arbitration decision"). Stated simply, an agency's "concern that an arbitrator's judgment may be substituted for its own is not a basis for finding [a proposal] nonnegotiable." National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA 346, 350 (1991).

c. Appropriate Arrangement

To determine whether a proposal constitutes an appropriate arrangement, we address whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right, and whether the proposal is appropriate because it does not excessively interfere with the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG).

The Union states that it advanced the proposal "to protect bargaining unit employees who have an interest in a regulation affecting their employment." Reply Brief at 14. The Union asserts that the proposal "seeks to establish an evenness in the [A]gency's application of personnel regulations" and that "aspects of the proposal include an equitable right to rely on a personnel regulation, both in its direct application in a consistent manner, and its fair application among several employees." Id. at 11 (footnote omitted). It is clear that employees have an "interest in maintaining the protections afforded them under . . . applicable . . . regulations . . . ." Department of Education, 38 FLRA at 1078. It also is clear that employees may be "adversely affected," within the meaning of section 7106(b)(3) of the Statute, by Agency actions taken in disregard of existing regulatory requirements. We conclude, therefore, that the proposal is intended as and constitutes an arrangement for employees who are adversely affected by the exercise of a management right in a manner inconsistent with existing Agency regulations.

Next, we must determine whether the proposed arrangement is appropriate because it does not excessively interfere with the exercise of management rights. To do so, we weigh "the competing practical needs of employees and managers." KANG, 21 FLRA at 31-32. In this case, we conclude that the benefits afforded employees by the proposal outweigh the impact on management's rights resulting from it.

First, the benefit afforded employees by the proposal is significant. The proposal would provide employees with clear assurance that the Agency intended to comply with its regulatory requirements. Moreover, the proposal would enable employees to challenge alleged noncompliance through the negotiated grievance and arbitration procedure. Providing access to negotiated grievance and arbitration procedures to challenge an agency's compliance with its regulations constitutes a significant benefit. See National Federation of Federal Employees, Council of GSA Locals and General Services Administration, 41 FLRA 728, 748 (1991) (GSA).

On the other hand, the impact of the proposal on management's rights is minimal. We note that the Agency "does not take issue with the proposition that it is obliged to follow its own regulations." Statement of Position at 5. Indeed, "[i]t is a familiar rule of administrative law that an agency must abide by its own regulations." Fort Stewart Schools v. FLRA, 110 S. Ct. 2043, 2051 (1990). Moreover, as noted previously, the proposal applies only to existing Agency regulations. The proposal neither precludes the Agency from revising or rescinding any issued regulation nor obligates the Agency to issue any regulations.

The benefit conferred by the proposal on unit employees is significant. With respect to the impact of the proposal on management's rights, however, the Agency has not "asserted an interest in acting without regard to its regulation[s] and no such interest is apparent to us." GSA, 41 FLRA at 750. Accordingly, we conclude that the benefit afforded employees by the proposal outweighs the impact of the proposal on management's rights. Therefore, the proposal does not excessively interfere with the exercise of the Agency's rights under section 7106 of the Statute and constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

VI. Order

The Agency shall upon request, or as otherwise agreed to by the parties, bargain concerning the disputed proposal.(4)




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

1. Pertinent parts of section 7106 of the Statute are set forth in an appendix to this decision.

2. With respect to management's rights under section 7106(a)(1) of the Statute, it is undisputed that the proposal would encompass an existing Agency directive entitled "Personnel Security." Attachment 6 to Statement of Position at 1. The directive addresses, among other things, the "procedures and requirements" applicable to security clearance determinations regarding sensitive positions. Id. at 5. As an agency's right to determine its internal security practices under section 7106(a)(1) encompasses the right to determine the policies and take actions which are part of its plan to secure or safeguard its personnel, physical property, and operations, and as there is no assertion to the contrary, we find that this regulation affects the Agency's exercise of its right to determine its internal