42:0938(68)NG - - AFGE Local 53 and Navy Material Transportation Office, Norfolk, Virginia - - 1991 FLRAdec NG - - v42 p938



[ v42 p938 ]
42:0938(68)NG
The decision of the Authority follows:


42 FLRA No. 68

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 53

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVY MATERIAL TRANSPORTATION OFFICE

NORFOLK, VIRGINIA

(Agency)

0-NG-1629

DECISION AND ORDER ON NEGOTIABILITY ISSUES

October 21, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority based upon a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of five provisions of a contract that were agreed to locally by the Union and the Naval Material Transportation Office, Norfolk, Virginia (the Activity) and were disapproved by the Agency under section 7114(c) of the Statute.(1)

 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). In the decision, the Court addressed, among other things, the relationship among the management rights enumerated in section 7106(a) of the Statute, other sections of the Statute, and other provisions of law outside of the Statute. With respect to two provisions in dispute--Provisions 4 and 5--the parties raise questions concerning the interrelationship of certain statutory and regulatory provisions, including those concerning the exercise of management's rights. In light of the Court's decision and the issues in dispute, the Authority, by order dated June 20, 1990, directed the parties to file supplemental briefs addressing the effect, if any, of the Court's decision on the issues raised by Provisions 4 and 5. The Agency and the Union filed supplemental briefs.

Provision 2 would require that employees called back to work outside of their regularly scheduled hours of duty be excused upon completion of the job that they were called in to perform. We find that Provision 2 is nonnegotiable because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Provision 3 would require management to make every effort to keep employees who have no annual leave on duty to perform work during periods of temporary shutdown or reduced operations. We find that Provision 3 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

Provision 4 would require management to keep details to the shortest practicable time limits. We find that: (1) to the extent that Provision 4 concerns regulations having the force and effect of law, the provision does not directly interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute; and (2) to the extent that Provision 4 requires compliance with regulations not having the force and effect of law, the provision is negotiable as an appropriate arrangement.

Provision 5 would require management to select the minimum discipline which can reasonably be expected to achieve the proper disciplinary objective. We find that Provision 5 is nonnegotiable because it excessively interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

Finally, Provision 6 would preclude management from bringing more than one charge against an employee for a single instance of misconduct unless "unrelated" offenses were involved. We find that Provision 6 does not interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and that it is negotiable.

II. Provision 2

Article 10, Section 8

Section 8. Employees called in to work outside of their regular shift hours shall be compensated for a minimum of two hours in accordance with the provisions of this Article regardless of whether the employee is required to work the entire two hours. In addition thereto, any employee called in to work outside his regular shift hours shall be promptly excused upon completion of the job which he was called in to perform. It is understood that any employee that is called in before his scheduled starting time, and works straight on to his scheduled quitting time, is entitled only to that amount which would be payable at the regular overtime rate.

[Only the underlined sentence is in dispute.]

A. Positions of the Parties

The Agency contends that the disputed portion of Provision 2 is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. According to the Agency, Provision 2 is like Provision 3 in American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587 (1987) (Marine Corps Logistics Base), which the Authority held to be nonnegotiable under section 7106(a)(2)(B) of the Statute.

The Agency also states that although the Union contends that any provision found to be nonnegotiable should be considered an appropriate arrangement, the Union "has not addressed any of the factors as required by the Authority in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) [Kansas Army National Guard]." Statement at 7.

The Union contends that the disputed portion of Provision 2 means that "employees who perform unscheduled work will be allowed to leave work after the job they were called in to perform has been completed." Response at 4. According to the Union, under the provision "the definition of 'job' is left to management." Id. The Union states that the effect of Provision 2 is "qualitatively different" from Provision 3 in Marine Corps Logistics Base because: (1) management's determination of what constitutes the "job" the employee was recalled to perform allows it to assign other work to the employee before and after completion of the 2-hour call back period; and (2) the provision in Marine Corps Logistics Base would have prevented management from determining that the "task" an employee had been called in to perform had not been completed. Id. at 4 and 5.

The Union also contends that the disputed portion of Provision 2 is an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

We conclude that Provision 2 is nonnegotiable because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Provision 2 would require that employees called back to work outside of their regularly scheduled hours of duty be excused upon completion of the job that they were called in to perform. Even assuming as the Union states, that Provision 2 would allow management to define the content of the "job" the employee is recalled to perform, the provision interferes with management's right to assign work. If management calls an employee in to perform a particular job, it is axiomatic that management must define the job at the time the employee is called. The provision does not provide for an employee to be excused after the completion of "any" job. Rather, the provision requires that an employee be excused after completing "the job which he was called in to perform." (Emphasis added.) The wording of the provision indicates that after employees finish the tasks they were called back to perform, they would be allowed to leave and management would be precluded from assigning them any work other than the tasks they were called in to perform. The provision is not worded so as to permit management to assign additional duties to an employee whom it has recalled to work.

Interpreted in this manner, the disputed portion of Provision 2 has the same effect as the portion of Provision 3 that was found nonnegotiable in Marine Corps Logistics Base. That provision limited the agency's right to assign work on "call back" to those duties that were related to the task for which the employee was called back to work. The Authority held that the provision directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute. Consistent with Marine Corps Logistics Base, we find that the disputed portion of Provision 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) because it precludes management from assigning additional duties to employees who have been recalled to work.

We next address the Union's contention that the provision constitutes a negotiable appropriate arrangement. In Marine Corps Logistics Base, the Authority found that while Provision 3, which limited the agency's right to assign work in circumstances where the agency called employees who were off duty back to perform work, constituted an arrangement, the provision was not appropriate because it excessively interfered with management's right to assign work. The Authority found that the provision would absolutely prohibit the agency from requiring employees to perform additional tasks--other than the specific one(s) for which they had been called back--without regard to the agency's need. The Authority found that the burden imposed by the provision on the agency's right to assign work was disproportionate to the benefit which the provision would afford employees by requiring their release upon completion of the task for which they were called back.

Balancing the burden on the agency's ability to exercise its right to assign work and to perform its mission effectively against the extent to which employees would be benefited by the provision, the Authority found that the provision excessively interfered with management's right to assign work. Therefore, the Authority concluded that the provision did not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

In this case, the Union offers nothing to support a conclusion that a disposition different than that reached in Marine Corps Logistics Base is warranted. It is well established that the parties bear the burden of creating a record upon which the Authority can make a decision. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), affirming 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. See, for example, National Association of Government Employees and U.S. Department of Veterans Affairs, Medical Center, Brockton and West Roxbury, Massachusetts, 41 FLRA 529, 534 (1991). Consequently, we find no basis in the record for concluding that the provision is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

Accordingly, we conclude that the disputed portion of Provision 2 is nonnegotiable.

III. Provision 3

Article 11, Section 3

Section 3. During any period of shutdown of activities or reduced operations for vacation purposes, every effort will be made to provide work for employees not having annual leave to their credit. If work cannot be provided for such employees, the Activity agrees to advance annual leave or grant leave without pay to the legal limit to such eligible employees to cover the period of shutdown.

[Only the underlined sentence is in dispute.]

A. Positions of the Parties

Relying on Federal Employees Metal Trades Council of Charleston, AFL-CIO and Charleston Naval Shipyard, Charleston, South Carolina, 33 FLRA 618 (1988) (Charleston Naval Shipyard), the Agency claims that the disputed portion of Provision 3 is nonnegotiable because it violates management's rights to assign employees, lay off employees, and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency contends that the disputed portion of the provision would require it to keep employees who have no annual leave on duty during periods of temporary shutdown or reduced operations, regardless of management's decision as to whether work should be performed and regardless of whether there is a need for the employees' services. The Agency also asserts that the provision would require management to assign work to employees who may not possess the qualifications needed to perform the work.

The Union contends that Provision 3 "merely requires the Agency to attempt to continue to utilize, for work identified by the Agency, those employees who would otherwise be unpaid due to lack of annual leave." Response at 6. The Union argues that Provision 3 does not preclude management from determining "that there is no alternative work it wants performed during a shutdown or reduction of activities" or "that it does not need the services of employees." Id.

The Union contends that the Agency misinterprets the provision "as not allowing the Agency to determine which employees possess the qualifications needed to perform certain work the Agency determines necessary." Id. According to the Union, because Provision 3 does not contain specific terms regarding qualifications, the provision "leaves unaffected . . . management['s] right to determine which employees are qualified to perform work." Id.

The Union also contends that the disputed portion of Provision 3 is an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

For the following reasons, we find that Provision 3 directly interferes with management's rights to assign employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B). However, we further find that the provision constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. In reaching these results, we find it unnecessary to determine whether the provision also directly interferes with management's right to lay off employees. Even if it does, the provision nevertheless would constitute an appropriate arrangement under section 7106(b)(3) of the Statute. See Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 42 FLRA No. 57, slip op. at 9 (1991) (Norfolk Naval Shipyard).

1. Provision 3 Directly Interferes with Management's Right to Assign Work under Section 7106(a)(2)(B) of the Statute

The disputed portion of Provision 3 requires that, during periods of a shutdown or reduced operations, management will make "every effort" to provide work to employees who have no annual leave. The Union explains that Provision 3 merely requires the Agency "to attempt" to use employees who have no annual leave to perform work that the Agency determines could be done. Response at 6. We find that Provision 3, as worded and explained by the Union, directly interferes with management's rights to assign employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the Statute.

Although Provision 3 would only require management to make "every effort" to provide work for employees who have no annual leave, the addition of such qualifying language does not remove the substantive limitation placed by the provision on the exercise of management's rights to assign employees and assign work. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 38 (1991), decision on reconsideration, 40 FLRA 849 (1991) (Internal Revenue Service), petition for review filed sub nom. U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, No. 91-1139 (D.C. Cir. Mar. 25, 1991) (provision requiring agency to make "a reasonable effort" to find work for an employee held to directly interfere with management's right under section 7106(a) of the Statute). Compare 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 2) (proposal requiring agency to "make every effort" to promote bargaining unit employees did not directly interfere with management's right under section 7106(a) because the proposal itself expressly limited the meaning of the phrase "every effort" to those efforts consistent with statutes, Executive Orders, or other superior authority).

Provision 3 obligates management to make "every effort" to provide work for employees who have no annual leave. The Union's explanation, that the proposal merely requires the Agency to attempt to use employees who have no annual leave to perform work that the Agency determines could be done, is consistent with the wording of the proposal and we adopt that interpretation for purposes of this decision. Nevertheless, interpreted in this manner, the proposal directly interferes with management's right to assign work. Under the provision, where management determines, in good faith, that there is work that could be done, the provision would obligate management to assign that work and, therefore, would directly interfere with management's right to assign work under section 7106(a)(2)(B). See, for example, Federal Employees Metal Trades Council and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 36 FLRA 401, 405 (1990) (proposal requiring management in specific circumstances to assign available work to an employee who chose to work during the Christmas curtailment period directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute).

We further find that Provision 3 would not require the Agency, should management determine that there is work that could be performed, to assign the work to employees without leave if those employees are not qualified to perform that work. As worded, the provision contains no such requirement. Further, the Union explains that Provision 3 "leaves unaffected . . . management['s] right to determine which employees are qualified to perform work." Response at 6. Because the Agency has provided no reason, other than a bare claim, to contradict the Union's explanation of the provision, we adopt the Union's interpretation for purposes of this decision. Consequently, we conclude that Provision 3 would not require the Agency to assign work to unit employees without annual leave who are not qualified to perform the work. See Norfolk Naval Shipyard, 42 FLRA No. 57, slip op. at 11.

2. Provision 3 Directly Interferes with Management's Right to Assign Employees under Section 7106(a)(2)(A) of the Statute

The Agency claims that Provision 3 conflicts with management's right to assign employees. The right to assign employees under section 7106(a)(2)(A) encompasses the right to make assignments of employees to positions in the Agency. See American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Base, Georgia, 35 FLRA 265, 269 (1990). Provision 3 would require management to make every effort to provide work for employees who do not have annual leave. The Agency claims that the provision would require management to assign employees to positions. The wording of the provision is consistent with an interpretation that management would be required to make every effort to provide work to employees by reassigning or detailing them to positions where there is work that could be done. Moreover, the Union does not claim that the proposal would not have that effect.

Consequently, in the absence of an assertion or any evidence demonstrating that Provision 3 does not contemplate the assignment of employees without leave to positions where there is work that could be performed, we will adopt that interpretation for purposes of this decision. Because Provision 3 would obligate management to make every effort to provide work to employees by detailing them to positions where there is work that could be performed, we find that the provision directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. See Norfolk Naval Shipyard, 42 FLRA No. 57, slip op. at 10.

3. Provision 3 Constitutes an Appropriate Arrangement under Section 7106(b)(3) of the Statute

Because Provision 3 directly interferes with management's rights to assign employees and to assign work, it is negotiable only if it is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. To determine whether Provision 3 constitutes an appropriate arrangement, we must decide whether the provision is: (1) intended to be an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's rights. Kansas Army National Guard.

The Union asserts that Provision 3 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union asserts that Provision 3 "merely requires the Agency to attempt to utilize . . . employees who would otherwise be unpaid due to lack of annual leave." Response at 6. We conclude that Provision 3 is intended by the Union as an arrangement for employees adversely affected by the Agency's exercise of its right to reduce or shutdown its operations.

Having concluded that Provision 3 is an arrangement, we now consider whether it is appropriate within the meaning of section 7106(b)(3) of the Statute. To determine whether a proposal is an appropriate arrangement because it does not excessively interfere with the exercise of a management right, we weigh "the competing practical needs of employees and managers" to determine whether the benefit to employees afforded by the proposal outweighs the burden placed by the proposal on the exercise of the management right or rights involved. Kansas Army National Guard, 21 FLRA at 31-32. The question, therefore, is whether the burden imposed on the exercise of management's rights by Provision 3 is excessive when weighed against the benefit the provision affords employees.

We find that the burden placed on the Agency by Provision 3 is not significant. While Provision 3 would obligate management to provide work for employees if it determines that there is work that could be performed, the judgment as to the availability of work that could be performed and the qualifications of employees needed to perform the work is reserved to management. Similarly, although the provision would require the Agency to make "every effort" to provide work for employees not having annual leave during reduced operations or a shutdown, the provision does not impose an absolute requirement that employees without leave be assigned work. Thus, the burden imposed by Provision 3 on management's rights is not significant.

On the other hand, by requiring that the Agency make every effort to provide work for employees lacking annual leave during reduced operations or a shutdown, Provision 3 affords a benefit to employees. As noted above, the Union asserts that employees would be adversely affected if the Agency decides to require employees to take leave during a reduction or shutdown of its operations. If the Agency decides to reduce or shut down its operations, employees who lack annual leave would be adversely affected because they would not receive compensation. The provision ensures employees that management will at least make efforts to provide them with work before requiring them to take leave without pay and, thus, preserves the possibility that some employee or employees would not need to take leave without pay.

We conclude that, on balance, the benefit to employees outweighs the burden placed on the Agency. Consequently, we find that Provision 3 does not excessively interfere with management's rights and is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. See Norfolk Naval Shipyard, 42 FLRA No. 57, slip op. at 10-11. See also Internal Revenue Service, 39 FLRA at 40 (provision requiring an agency to make "a reasonable effort" to find work for an employee found to constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute). Compare American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 23 FLRA 193, 196 (1986) (Authority interpreted a proposal requiring an agency to "make every conceivable attempt to assign employees to available work" if they declined to take annual leave or leave without pay during a partial closing as totally eliminating the agency's discretion to exercise its rights under section 7106(a)(2) and concluded that the proposal excessively interfered with those rights).

Accordingly, we conclude that Provision 3 directly interferes with management's right to assign employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B), but constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

IV. Provision 4

Article 11, Section 1

Section 1. The Activity agrees that details of employees will be kept within the shortest practicable time limits as required by this Agreement, applicable regulations and the latest Office of Personnel Management Instructions.

A. Positions of the Parties

1. Agency

The Agency claims that Provision 4 is nonnegotiable because it interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. The Agency argues that the provision would interfere with management's right to decide when a detail "should begin and end, that is, its duration[.]" Statement at 3.

In its supplemental brief, the Agency asserts that the Supreme Court's decision in IRS v. FLRA "should have no effect" on Provision 4. Agency's Supplemental Brief (Agency Brief) at 2. The Agency contends that in IRS v. FLRA, the Court held that "some, but not all, rules and regulations may be considered 'laws' and, consequently, may be enforced in grievance and arbitration procedures." Id. at 3. The Agency states that Provision 4 does not raise this issue.

The Agency contends that Provision 4 "would incorporate into a collective bargaining agreement requirements contained in '[a] regulation[],'" that is, Federal Personnel Manual (FPM) Chapter 300-20, Subchapter 8-5. Id. The Agency contends that the provision contains "limitations on the . . . exercise of management's rights which are . . . contained in th[is] regulation[]." Id. at 4. Thus, according to the Agency, "the issue here is not arbitral enforcement of external limitations on the exercise of . . . management['s] rights as was the case in [IRS v. FLRA], but rather whether such limitations may be made contractual[ly]." Id. (emphasis in original). Citing National Federation of Federal Employee, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981), (Homestead Air Force Base) affirmed sub nom. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), the Agency states that the Authority has held that regulatory provisions which limit the exercise of a management right may not be incorporated into parties' agreements. In the Agency's view, the Authority's holding in this regard "should not be affected" by the Court's decision in IRS v. FLRA because the Court's decision pertains to whether external rules and regulations limiting management's rights may be enforced as "laws" in arbitration proceedings and not whether the existence of such regulations renders proposals that otherwise directly interfere with management's rights negotiable. Agency Brief at 4-5.

The Agency further asserts that even if the Authority should find that the Court's decision affects Provision 4, the regulation at issue is not a "law within the meaning of section 7106(a) of the Statute." Id. at 7. Citing Homestead Air Force Base, 6 FLRA 574 and National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422 (1987) (Provision 4) (Financial Management Service), the Agency contends that the Authority has taken a "narrow view of which rules and regulations may be considered laws pursuant to section 7106(a)." Agency Brief at 8. The Agency contends that in "Homestead Air Force Base and Financial Management Service, . . . the Authority did not find either Office of Management and Budget Circular A-76 . . . or Office of Personnel Management [OPM] Regulations concerning performance appraisal[s] . . . to be laws for the purposes of section 7106(a)." Id. (emphasis in original). The Agency states that the Authority "was correct to take a restrictive view of what may be considered a law for the purposes of section 7106(a)." Id. In the Agency's view, "Congress intended for the word law in section 7106(a) to have a limited meaning." Id. at 9. The Agency further states that "[i]t is unnecessary to establish the outer limits of Congressional intent in this case . . . because it should be clear that . . . the [regulation] in issue here could [not] have been within the contemplation of the drafters of section 7106(a)." Id.

The Agency further contends that the FPM is issued by OPM for the information of other Federal agencies. The Agency states that the FPM is not issued pursuant to OPM's statutory regulatory authority or published in the Federal Register. According to the Agency, "[r]egulations issued pursuant to OPM's statutory regulatory [a]uthority are published in the Federal Register and codified at title 5 of the Code of Federal Regulations." Id.

2. Union

The Union claims that Provision 4 only requires management to "follow applicable authorities in conducting details of employees without limiting the Agency's ability to decide when or for how long to detail[.]" Response at 7. The Union contends that the provision requires management to comply with "regulations and instructions as the Agency would otherwise be required to follow, absent a contractual obligation." Id. at 9.

The Union also contends that the disputed portion of Provision 4 is an appropriate arrangement under section 7106(b)(3) of the Statute.

In its supplemental brief, the Union asserts that Provision 4 "would require keeping details' duration to 'the shortest practical time limits as required by this Agreement, applicable regulations, and the latest [OPM] Instructions." Union's Supplemental Brief (Union's Brief) at 1 (emphasis in original). The Union states that the provision "contains no other contractual specifications relating to details and none in other parts of the executed agreement were disapproved." Id. The Union contends that under these circumstances, "the record supports its argument that Provision 4 requires only such specific actions as are extrinsically required of the Agency, and is, therefore, negotiable under Authority precedent." Id.

According to the Union, "[a] first distinction between Provision 4 and the proposal involved in [IRS v. FLRA] is that the instant dispute does not involve a specific external authority," and "[s]econdly, the external authorities to which the [p]rovision refers are outside [the Statute]." Id. (emphasis in original). Thus, according to the Union, "the Court's analysis distinguishing 'applicable laws' from 'any law, rule, or regulation' . . . supports a conclusion of negotiability" with respect to Provision 4. Id. The Union states that the "'applicable laws' limiting the [Agency's] § 7106(a) rights as to details are not contained in [the Statute], so there is no basis or need to consider whether one section of [the Statute] 'trumps,' or is superfluous in relation to another section." Id.

B. Analysis and Conclusions

For the reasons discussed below, we find that Provision 4 is negotiable.

Provision 4 would require management to restrict details to "the shortest practicable time limits" as required by the parties' contract, applicable regulations and the latest OPM Instructions. The Union explains that Provision 4 requires management to follow the latest OPM instructions and other applicable regulations when detailing employees to positions. The Union further explains that the provision requires "only such specific actions as are extrinsically required of the Agency." Union Brief at 1. In our view, the Union's explanation is consistent with the wording of the provision and we find, therefore, that the effect of the proposal is to require management to limit the length of details as prescribed by the latest applicable regulations and OPM instructions. The provision would not require management to comply with regulations or instructions that are eliminated during the term of the agreement.

Proposals that limit the duration of a detail or temporary assignment directly interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute. See International Association of Machinists and Aerospace Workers Union and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 732-33 (1988); American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA 493, 510-14 (1987). Prior to the Court's decision in IRS v. FLRA, proposals requiring management to exercise its rights under section 7106(a)(2) of the Statute in accordance with applicable regulations were found to be within the duty to bargain because such proposals only contractually recognized external limitations on management's rights. See, for example, American Federation of Government Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia, 31 FLRA 529, 533 (1988) (Department of Justice, Bureau of Prisons), and the cases cited therein, rev'd as to other matters sub nom. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia v. FLRA, No. 88-3997 (4th Cir. July 5, 1988).

Recently, however, in National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA No. 31 (1991) (IRS), the Authority reexamined its position on external limitations on management rights in light of the holding of the U.S. Supreme Court in IRS v. FLRA. With respect to management's rights under the Statute, the Court held that the Statute "does not empower unions to enforce all 'external limitations' on management rights, but only limitations contained in 'applicable laws.'" IRS v. FLRA, 110 S. Ct. at 1628. In IRS, we held that, insofar as management rights under section 7106(a)(2) are concerned, proposals that require compliance with applicable laws do not interfere with the exercise of such rights. Compare American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and U.S. Department of Education, 38 FLRA 1068, 1075-76 (1990) (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) (proposals requiring management to exercise its rights under section 7106(a)(1) of the Statute in accordance with applicable laws directly 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, provisions in the United States Code as well as rules and regulations having "the force and effect of law." IRS, 42 FLRA No. 31, slip op. at 14-15. As relevant here, 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 issued 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 16-17.

Provision 4 would require management to contractually recognize external limitations on its exercise of a management right. Because the provision concerns contractual recognition of external limitations on management's right, we find that the Court's decision in IRS v. FLRA and our decision in IRS are applicable.

The Union contends that Provision 4 would restrict details to the "shortest practicable time limits" as required by the parties' contract, applicable regulations and the latest OPM instructions. According to the Union, "Provision 4 . . . does not involve a specific external authority." Union's Brief at 1. The Agency, on the other hand, contends that the provision concerns requirements contained in FPM Chapter 300-20, subchapter 8-5. The wording of the provision refers to "Agreement, applicable regulations" and "[OPM] Instructions." Because the wording of the provision does not specifically identify the OPM instructions involved and because the Union has not provided information as to which OPM instructions are intended, we are unable to determine the extent to which the provision limits the Agency's exercise of its management's rights under section 7106(a)(2). That is, we are unable to determine whether, consistent with IRS, Provision 4 requires compliance only with regulations having the force and effect of law.

However, based on IRS, to the extent that the term "OPM instructions" refers to properly promulgated agency regulations that are issued pursuant to statutory authority and affect individual rights and obligations, such instructions have the "force and effect of law" and, thus, constitute applicable laws under section 7106(a)(2) of the Statute. Such instructions constitute enforceable external limitations on the Agency's exercise of its rights under section 7106(a)(2). Therefore, to the extent that it concerns such instructions, Provision 4 is negotiable because it would only require the Agency to comply with enforceable external limitations.

Further, to the extent that Provision 4 requires details in compliance with Government-wide regulations not having the force and effect of law, we find, for the reasons discussed below, that it is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. Provision 4 has the same effect as Provision 6 in National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657 (1991) (Veterans Administration). In Veterans Administration, we were presented with the question of whether Provision 6, which required management to exercise its right to assign work under section 7106(a)(2)(B) of the Statute in accordance with applicable Government-wide regulations, was negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

Noting Department of Education, we concluded in Veterans Administration that proposals requiring "management to exercise its rights under section 7106(a)(2) in accordance with Government-wide regulations are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute even if Government-wide regulations do not constitute 'applicable law' within the meaning of section 7106(a)(2) of the Statute." 40 FLRA at 681. Relying on the reasoning in Department of Education, we found that the provision in Veterans Administration, which concerned applicable Government-wide regulations pertaining to sick leave, constituted a negotiable appropriate arrangement under section 7106(b)(3) of the Statute even if the regulations did not constitute "applicable law" under 7106(a)(2) of the Statute.

We find that the reasoning of Department of Education and Veterans Administration is applicable to Provision 4 because the issues involved are similar to those presented in those cases. To ignore those cases in our consideration of Provision 4 would lead to conflicting and anomalous results on similar provisions. See, for example, American Federation of Government Employees, AFL-CIO, Local 3457 and U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana, 39 FLRA 1276, 1278 (1991), petition for review filed sub nom. U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana, No. 91-1218 (D.C. Cir. May 10, 1991).

We find that Provision 4 is intended as an arrangement for employees who are adversely affected by management's decision to assign employees. The provision provides a mechanism to ensure Agency compliance with applicable regulations when assigning employees, that is, detailing employees to positions. The provision mitigates the adverse effects on employees of being deprived of the protections afforded by applicable regulations.

We also find that the provision is an appropriate arrangement because it does not excessively interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute. Provision 4 would require the Agency to comply with the latest applicable regulations and OPM instructions limiting the duration of a detail. The provision would benefit employees by providing them with some assurance that the duration of an assignment to a detail would be consistent with regulations. Employees would have assurance that they would not be deprived of rights and protections afforded to them by Government-wide regulations concerning details. On the other hand, the provision, as mentioned, would merely require the Agency to comply with applicable regulations when assigning employees to details.

"[T]he existence of applicable laws, rules and regulations already serves to limit agency action and indicates that an agency's interest in being able to act without regard to those provisions and without challenge to the legality of its actions, such as in arbitration procedures, is negligible." Department of Education, 38 FLRA at 1078. We find, therefore, that the provision does not excessively interfere with management's right to assign employees. See Veterans Administration, 40 FLRA at 681-682; Department of Education, 38 FLRA at 1078. Accordingly, we conclude that Provision 4, to the extent that it concerns Government-wide regulations not having the force and effect of law, constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

Based on the above, we find that Provision 4 is negotiable.

V. Provision 5

Article 23, Section 1

Section 1. The Activity agrees that it is the policy of the Navy to impose the minimum penalty that can reasonably be expected to correct the offending employees and maintain discipline and morale among other employees. Any such disciplinary action must be for just cause and shall be subject to the grievance and arbitration procedures as provided in this Agreement. Such disciplinary action is defined as letters of reprimand or more serious penalty.

{Only the underlined sentence is in dispute.}

A. Positions of the Parties

1. Agency

The Agency contends that the disputed portion of Provision 5 is outside the duty to bargain because it directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. The Agency argues that the disputed portion of the provision would interfere with management's discretion to determine what discipline should be imposed for a particular offense by restricting its action to the minimum penalty.

The Agency claims that the disputed portion of the provision is "not DON [Department of the Navy] policy, but is described as 'guidance' in a DON instruction." Agency's Statement at 5. The Agency asserts that this "instruction is being cancelled in a few weeks and being replaced with an instruction that does not contain any similar language." Id. The Agency further argues that even if management established a limitation on management's right to discipline by issuing the instruction, that fact would not make the matter negotiable under the Statute.

In its supplemental brief, the Agency's position as to the applicability of the Court's decision in IRS v. FLRA is the same as discussed in Section IV.A.1, except that the Agency contends that Provision 5 concerns a regulation of the Department of the Navy rather than the FPM. Additionally, the Agency asserts that even if IRS v. FLRA is applicable to this case, the Navy regulation involved, Office of Civilian Instruction (OCPM) 12752.1, does not constitute law within the meaning of section 7106(a) of the Statute. The Agency contends that OCPM 1252.1 is "issued for the internal direction of Department of Navy personnel." Agency Brief at 9. The Agency asserts that it is "not issued pursuant to any general, statutory regulatory authority and is not published in the Federal Register." Id. The Agency further states that "OCPM Instruction 12752.1 . . . has since been revised to delete the policy referred by the union" in its position. Id. at 4.

2. Union

The Union contends that the disputed portion of Provision 5 only "restates" Navy policy. Union's Response at 10. The Union states that "it is the intent of the provision . . . that so long as the policy is the policy of the Navy, it will be followed because that is the parties' agreement in Article 2, Section 1." Id. The Union also asserts that even if the Agency deleted the policy from its regulation, the Agency could still exercise its "discretion to continue the current [policy], and to have it embodied in a collective bargaining agreement." Id. at 12.

The Union also contends that the disputed portion of Provision 5 is an appropriate arrangement under section 7106(b)(3) of the Statute.

In its supplemental brief, the Union contends that the "gravamen of Provision 5 is to restate current Department of Navy policy in regard to [the] severity of discipline penalties." Union Brief at 2. The Union contends that as "long as the [Agency] continues [the] policy, [management] would [be required to] follow it under Provision 5." Id. According to the Union, the "published [Agency] policy is the external authority governing severity of discipline." Id.

As to the applicability of the Court's decision in IRS v. NTEU, the Union raises arguments similar to those expressed in section IV.A.2 above.

B. Analysis and Conclusions

We find that the disputed portion of Provision 5 is nonnegotiable for the reasons discussed below.

First, we note the Union's explanation that Provision 5 only incorporates existing Agency policy concerning the severity of disciplinary penalties. We also note the Agency's claim that its instruction has been revised to delete the policy referred to by the Union. The Union does not dispute the Agency's claim. Therefore, we will interpret the provision as not incorporating Agency policy concerning the severity of disciplinary penalties. Interpreted in this manner, rather than requiring compliance with an Agency regulation, Provision 5 would contractually limit management's choice of disciplinary action to "the minimum penalty that can reasonably be expected to correct the offending employees and maintain discipline and morale among employees." Consequently, it is unnecessary to address the effect of the Agency's regulation as well as the Court's decision in IRS v. FLRA on the negotiability of the provision.

Proposals that restrict the discipline which management may impose for a given offense to the minimum necessary to effectuate the purposes of the discipline directly interfere with management's right to discipline employees under section 7106(a)(2)(A) because they limit management's discretion to select the appropriate penalty. See American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023 (1988) (Provision 19) (Naval Weapons Station, Concord, California), rev'd as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. 1989); and International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987) (Provision 22, subsection a) (Bureau of Engraving and Printing, Washington, D.C.). The disputed portion of Provision 5 would limit management's choice of disciplinary action to the minimum penalty that can reasonably be expected to correct the offending employees and maintain discipline and morale among employees. Therefore, consistent with Naval Weapons Station, Concord, California and Bureau of Engraving and Printing, Washington, D.C., we conclude that the disputed portion of Provision 5 directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

We reject the Union's claim that the disputed portion of the provision constitutes an appropriate arrangement. While the Authority has found that proposals restricting management's discretion in disciplining an employee to selecting the minimum discipline necessary to correct an offending employee constitute arrangements within the meaning of section 7106(b)(3), the Authority has concluded that such arrangements are not appropriate because they excessively interfere with management's right to discipline. See Naval Weapons Station, Concord, California, 32 FLRA at 1046.

The Union provides nothing in this case that would support a disposition of Provision 5 that would be different from the disposition reached in Naval Weapons Station, Concord, California. The Union has not met its burden of creating a record on which the Authority can make a negotiability determination. National Association of Government Employees and U.S. Department of Veterans Affairs, Medical Center, Brockton and West Roxbury, Massachusetts, 41 FLRA 529, 534 (1991). Consequently, consistent with Naval Weapons Station, Concord, California, we conclude that Provision 5 excessively interferes with management's right to discipline employees under section 7106(a)(2)(A). Therefore, we find that Provision 5 does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, we find that Provision 5 is nonnegotiable.

VI. Provision 6

Article 23, Section 3

Section 3. It is agreed and understood that employees may be formally disciplined by being reprimanded in writing, suspended from duty, reduced in compensation, or removed from employment. The Activity agrees that letters of reprimand will be removed from the employee's Official Personnel Folder and destroyed within two years of the date that the letter is issued. The preferment of more than one charge for a single instance of misconduct is prohibited, except when the instance involves two or more unrelated offenses.

A. Positions of the Parties

The Agency contends that the disputed portion of Provision 6 is nonnegotiable because it interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency states:

The effect of this provision would be to bar management from fully exercising its right to discipline. For example, wording of this nature arguably would prevent an agency from charging an employee both with: (1) on duty sale of cocaine; and (2) on duty use of cocaine, since the union could plausibly contend that these are related offenses.

Statement at 6. The Agency argues that the provision would deprive management of the "full scope of its authority to discipline by the requirement to seek discipline for only a single infraction despite the presence of related infractions for which discipline could be imposed." Id.

The Union contends that the disputed portion of Provision 6 means that "the employer will not discipline an employee for the same conduct more than once; however, if an alleged act constitutes violation of more than one applicable stricture on the employee's conduct, then the provision permits the employer to cite such violations as charges in a disciplinary action." Response at 13. The Union argues that the wording of the provision, as explained by its statement of intent, demonstrates that the provision does not "require the Agency to choose from among multiple offenses." Id. The Union asserts that the provision permits the Agency "to bring a charge for each offense alleged to have occurred." Id. The Union states:

In the Agency's hypothetical example, assuming the Agency has effectively prohibited the use of controlled substances and the sale of controlled substances (two offenses), the disputed language has permitted and would permit the employer to specify charges against an employee for each offense, sale and use. Thus, "unrelated" has been construed by the parties to mean "separate."

Id. at 13-14.

The Union also contends that the disputed portion of Provision 6 is an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

We find, for the reasons expressed below, that Provision 6 does not interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

Provision 6 concerns formal disciplinary actions taken against employees, such as written reprimands, suspensions, reductions in pay, and removals. The disputed portion of Provision 6 concerns that aspect of management's decision to institute formal discipline against an employee wherein management determines the charges of misconduct which it will bring against the employee. The provision would preclude management, when making that determination, from bringing more than one charge for a single instance of employee misconduct, unless unrelated offenses were involved.

Under Part 752 of 5 C.F.R., which covers all the formal actions mentioned in the provision except written reprimands, agencies are required to provide an employee with an advance written notice stating the specific reasons for the proposed action. See 5 C.F.R.§§ 752.101 and 752.301. The Merit Systems Protection Board (MSPB) has held that "an agency's advance notice of charges is analogous to an indictment," the purpose of which "is to apprise the accused party of the charges being brought against him or her." Copeland v. Community Services Administration, 6 MSPR 280 (1981). The MSPB has also held that the case against an employee "must be judged on the charge brought, and the Board cannot adjudicate on the basis of other charges that might have been, but in fact were not made." Johnston v. Government Printing Office, 5 MSPR 354 (1981) (citation omitted). Consequently, in order for management to discipline an employee for more than one offense, the employee must be charged with more than one offense.

The disputed portion of Provision 6 would permit management to bring only one charge against an employee for a single instance of misconduct unless unrelated offenses are involved. Provision 6 does not define the phrase "unrelated offenses." However, according to the Union, for the last 5 years "'unrelated' has been construed by the parties [under their prior contract] to mean 'separate'" offenses. Union's Response at 13-14. The Union states that the disputed term is not intended "to conflict with the Agency's filing separate charges for separate offenses," and would permit the Agency to file "separate charges against an employee for each [drug] offense" cited in the Agency's hypothetical. Response at 13 and 16. Based on the Union's explanation, which is consistent with the terms of the provision, we interpret "unrelated" offenses to mean separate offenses.

Defined in this manner, the disputed portion of the provision would not prevent management from charging an employee with multiple offenses. Rather, the provision would prohibit management only from charging an employee more than once for the same offense. The provision would preclude the Agency from bringing multiple charges against the employee for the same offense, as in Southers v. Veterans Administration, 813 F.2d 1223 (Fed. Cir. 1987). In that case, the agency brought 19 separate charges of false testimony against an employee based upon 19 separate instances in which the agency, during an investigative interview, repeated and rephrased the same question to the employee. The MSPB upheld the agency's discipline on all the charges brought against the employee. The Federal Circuit reversed the MSPB as to 18 of the charges of false testimony on the ground that those charges were duplicative in nature and that only one charge of false testimony should have been brought against the employee.

Based on the above, we conclude that Provision 6 would operate only to prevent the Agency, as in the Southers case, from bringing multiple charges against an employee for the same offense. The provision would not preclude management from bringing separate charges for separate offenses. The provision, therefore, would not interfere with management's right to discipline employees under section 7106(a)(2)(A), and is within the duty to bargain.

VII. Order

The petition for review as to Provisions 2 and 5 is dismissed. The Agency must rescind its disapproval of Provisions 3, 4 and 6.