43:0344(35)NG - - AFGE Local 2077 and DOD, MI Air NG, 127th Tactical Fighter Wing - - 1991 FLRAdec NG - - v43 p344



[ v43 p344 ]
43:0344(35)NG
The decision of the Authority follows:


43 FLRA No. 35

FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.


AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2077
(Union)

and

U.S. DEPARTMENT OF DEFENSE
MICHIGAN AIR NATIONAL GUARD
127TH TACTICAL FIGHTER WING
(Agency)

0-NG-1691

DECISION AND ORDER ON NEGOTIABILITY ISSUES

November 27, 1991

Before Chairman McKee and Members Talkin and Armendariz.(1)

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). The appeal concerns two proposals.

For the following reasons, we conclude that Proposal 1, which concerns fitness and weight requirements established by Air Force Regulation (AFR) 35-11, is negotiable in part and nonnegotiable in part.

Proposal 2, which requires the Agency to delay awarding a contract until grievance procedures, including arbitration, are exhausted, is nonnegotiable because it excessively interferes with the Agency's right to make determinations with respect to contracting out.

II. Proposal 1

As an appropriate arrangement for employees affected by the management requirement that the employees maintain their physical condition within specified fitness and weight limitations, as currently stated in AF REGULATION 35-11, the employer agrees to the following:

1. an employee who is considered to be outside the required physical conditioning and/or weight limits will be so advised in writing and afforded a reasonable period of time based on the extent of the employee's required improvement, to meet the established criteria. The employee will be advised of the administrative consequences of failure to meet the required physical conditioning and/or weight limits.

2. an employee who has been advised that reassignment, downgrade, suspension, or removal will occur unless the employee meets the employer's criteria for physical conditioning and/or weight will be afforded the opportunity, at the employee's request, to use duty time to engage in physical exercise that will assist the employee in meeting the employer's requirements. It is understood and agreed that this provision does not require an employee to endanger his or her health by engaging in such exercise.

3. should the employer determine that continued use of the duty time under paragraph "2." above results in an untenable hardship on performance of the employer's work, the amount of time which can be used is appropriate for renegotiation with Local 2077.

A. Positions of the Parties

1. The Agency

The Agency argues that it is barred from negotiating over Proposal 1 by 10 U.S.C. § 976(c)(2)(2) because the proposal concerns terms and conditions of military service. The Agency states that the bargaining unit includes 250 Air Reserve Technicians (ARTs) who, "[a]s a condition of their civilian employment, . . . must become and remain military members of the Air Force Reserves." Statement of Position at 1. According to the Agency, AFR 35-11 "is a military regulation which establishes the physical weight and fitness standards for Air Force military personnel [and] does not apply to civilian employees, nor is it used in connection with the civilian aspects of an ART employee." Id. at 3.

The Agency also argues that the Proposal 1 does not concern conditions of employment, as defined in section 7103(a)(14) of the Statute. According to the Agency, Proposal 1 concerns "a military requirement of an ART employee as a member of the Air Force Reserve rather than . . . as a civilian employee." Id. at 4.

Finally the Agency argues that Proposal 1 interferes with its rights to assign work and determine the personnel by which Agency operations will be conducted under section 7106(a)(2) of the Statute. The Agency asserts that the proposal would mandate an "employee's release from a work status, irrespective of mission requirements . . . ." Id. at 6.

2. The Union

The Union disputes the Agency's claim that AFR 35-11 applies only to military members of the armed forces. The Union claims that the Agency has extended the coverage of the regulation to civilian employees. The Union relies on Michigan Air National Guard, Selfridge ANG Base Michigan and The Association of Civilian Technicians, Michigan State Council, 33 FLRA 385 (1988) (Selfridge), where, the Union argues, the Authority held that the Agency's application of AFR 35-11 constituted the exercise of the Agency's right to assign work.

The Union also disputes the Agency's claim that Proposal 1 violates 10 U.S.C. § 976(c)(2). According to the Union, the proposal "recognizes and reserves the [Agency's] right to retain or separate individuals as military members and as civilian employees." Reply Brief at 7.

The Union argues that Proposal 1 is an appropriate arrangement for employees adversely affected by the exercise of the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. According to the Union, the Agency exercised that right "by establishing a mandatory physical conditioning program[]" to determine employee qualifications for work assignments. Id. at 9. The Union asserts that although the proposal requires the Agency to notify employees in writing of the period of time in which they must comply with AFR 35-11, the proposal would not limit the Agency's discretion to determine that period of time. The Union also asserts that although the proposal requires the Agency to provide employees with duty time to be used for physical training, the proposal does not specify the amount of duty time that the Agency must provide. The Union claims, in this regard, that "the duty time would not initially be any minimum amount but it could not exceed 3 hours per week . . . ." Id. at 12.

Finally, the Union contends that the proposal provides significant benefits to the Agency. The Union contends that, in addition to improving employee morale, the proposal would help "improve the physical condition of the workforce," and would "increase productivity, lower the incidence of illness/injury, and improve the quality of work products." Id. at 13.

B. Analysis and Conclusions

1. Preliminary Matters

The bargaining unit represented by the Union encompasses approximately 700 employees. The unit includes approximately 250 ARTs as well as other employees, including National Guard technicians. We find, for the following reasons, that: (1) Proposal 1 applies only to ARTs; and (2) the disputed regulation, AFR 35-11, applies to ARTs only in their military capacities.

With respect to the first point, the Agency states its "understanding," based on the parties' negotiations, that "[Proposal 1] applies only to . . . ART employees." Statement of Position at 2-3. The Union does not dispute the Agency's claim.

Moreover, the proposal refers specifically and exclusively to fitness and weight limitations "as currently stated in" AFR 35-11. It is clear from the record that this regulation applies to Air Force military personnel, including ARTs.(3) It is also clear from the record that a different regulation, Air National Guard Regulation (ANGR) 35-11, applies to National Guard technicians. In fact, the Union's reply brief references, in numerous places, the fact that AFR 35-11 and ANGR 35-11 are different regulations. See Reply Brief at 4, 6 n.1, 14, and 15. See also Selfridge, 33 FLRA at 386 ("The Agency administers a Weight Management Program (WMP) pursuant to Air Force Regulation 35-11 and Air National Guard Regulation 35-11."). Insofar as the Union interprets Proposal 1 as encompassing ANGR 35-11, we reject the interpretation as inconsistent with the plain wording of the proposal. See, for example, National Association of Agricultural Employees and U.S. Department of Agriculture, Western Regional Office, Sacramento, California, 40 FLRA 1138, 1141 (1991).

Finally, there is no indication in the record that AFR 35-11 applies to National Guard technicians. The Union claims that ANGR 35-11 is "derivative" of AFR 35-11. Reply Brief at 4. It appears, based on the Union's statements and Selfridge, that requirements similar to those in AFR 35-11 are applied to National Guard technicians by ANGR 35-11. There is no indication or assertion that ARTs are subject to ANGR 35-11 or that National Guard technicians are subject to AFR 35-11, however.

In sum, the Agency's claim that Proposal 1 applies only to ARTs is undisputed. Moreover, the proposal specifically references only AFR 35-11 and there is no indication in the record that AFR 35-11 applies to National Guard technicians. We conclude, therefore, that Proposal 1 applies only to ARTs.

With respect to the second point, the Agency maintains that the regulation applies to ARTs only in their military capacities. The Union disagrees, asserting that "the Employer has administratively acted to extend the contents of that regulation to civilian employees qua civilian employees." Reply Brief at 3.

In support of its assertion, the Union relies solely on Selfridge. Selfridge involved a National Guard technician, however. Consistent with our previous finding that different regulations apply to ARTs and National Guard technicians, Selfridge may be read as encompassing only the Agency's application of ANGR 35-11 to National Guard technicians. That is, nothing in Selfridge indicates that the affected National Guard technician was denied a civilian assignment because of application of AFR 35-11.

In these circumstances, the record does not provide an adequate basis for concluding that the Agency has acted to extend coverage of AFR 35-11 to ARTs in their civilian capacities. We now turn to whether the disputed sections of Proposal 1 concern conditions of employment of ARTs and, as necessary, whether the sections are otherwise negotiable.

2. Conditions of Employment

a. Analytical Framework

Section 7103(a)(14) of the Statute defines the term "conditions of employment," with certain statutory exclusions,(4) as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions[.]" In deciding whether a proposal involves a condition of employment, the Authority considers whether (1) the proposal pertains to unit employees; and (2) the record establishes a direct connection between the proposal and the work situation or employment relationship of unit employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986) (Antilles).

The Authority has not addressed whether proposals relating to military aspects of ART employment involve conditions of employment under the Statute. Compare National Federation of Federal Employees, Local 687 and Department of the Air Force, Headquarters 63rd Air Base Group (MAC), Norton Air Force Base, California, 19 FLRA 617, 619 (1985) ("[w]hile matters related to the civilian aspects of [ART] employment may be within the duty to bargain pursuant to the Statute, matters related to the military aspects of such technician employment are specifically prohibited from negotiation" by 10 U.S.C. § 976).

The Authority has addressed this issue with regard to the military aspects of civilian technician employment in the National Guard, however. The Authority consistently has held that matters related solely to such aspects do not concern conditions of employment under the Statute. For example, Association of Civilian Technicians, Pennsylvania State Council and The Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 50, 55 (1980) (proposal enabling technician to appeal military rating held to concern a matter that was specifically provided for by law and, as result, not a condition of employment because technician's military employment "is totally mandated by law.").

In National Federation of Federal Employees, Local 1623 and South Caroline National Guard, Columbia, South Carolina, 28 FLRA 633, 641-43 (1987) (South Carolina National Guard), for example, the Authority addressed a proposal establishing certain procedural requirements applicable where changes in a National Guard technician's military status affected the technician's civilian job.(5) Among other things, the proposal would have: (1) required the civilian personnel office to take certain actions if a technician faced separation from his/her civilian position because of position incompatibility; and (2) enabled such a technician to file an informal appeal prior to separation. The Authority held that as the proposal concerned "a matter in connection with the military aspects of technician employment," it did not concern a condition of employment under the Statute. Id. at 643.

The Authority's decision in South Carolina National Guard was affirmed by the U.S. Court of Appeals for the District of Columbia Circuit. National Federation of Federal Employees, Local 1623 v. FLRA, 852 F.2d 1349 (D.C. Cir. 1988) (NFFE v. FLRA). The court noted that, under the National Guard Technician Act, 32 U.S.C. § 709 et seq., "the entire question of compatibility is a military issue." Id. at 1352 (emphasis in original). The court held that compatibility between military and civilian positions was a "matter 'specifically provided for by Federal statute' and therefore not a bargainable 'condition of employment.'" Id. The court concluded as follows:

The combined effect of the [Statute] and the Technicians Act is to give National Guard technicians a limited right to negotiate over conditions of employment: But that right is circumscribed by the reality that a technician's military status will often impinge on his civilian status and that, when this happens, the needs of the military must prevail.

Id. at 1353. See also American Federation of Government Employees, Local 3013 and U.S. Department of Defense, National Guard Bureau, Maine Air National Guard, Augusta, Maine, 40 FLRA 203, 207-08 (1991) (Maine Air National Guard) (proposal requiring the agency to use identical criteria to evaluate civilian National Guard technicians and military applicants for certain positions did not concern a condition of employment under section 7103(a)(14) of the Statute).

It is clear from the foregoing that proposals relating to military aspects of National Guard technician employment do not concern conditions of employment under the Statute. Compare American Federation of Government Employees, AFL-CIO, Local 3006 and The Adjutant General, State of Idaho, Boise, Idaho, 34 FLRA 816, 820 (1990) ("[M]atters related to the civilian aspect of civilian technicians' employment may be within the duty to bargain pursuant to the Statute."). It is also clear that the military aspects of such employment are specifically provided for by statute, within the meaning of section 7103(a)(14) of the Statute.

Unlike National Guard technician employment, ART employment was not established by statute. Instead, "[t]he ART program was created as a result of a 1957 Memorandum of Agreement, implemented in 1958, between the Air Force and the Civil Service Commission, now the Office of Personnel Management ('OPM')." Ridgway v. Aldrige, 709 F. Supp. 265, 267 (D. Mass. 1989). See also American Federation of Government Employees v. Hoffman, 543 F.2d 930, 932 (D.C. Cir. 1976); National Association of Government Employees, Local No. R14-87 and Kansas National Guard, et al., 5 FLRC 125, 140 n.27 (1977) (Kansas National Guard). There is no indication that, since its inception, the ART employment program has been statutorily enacted. Compare 10 U.S.C. § 8848(c)(2) (authorizing Secretary of the Air Force to retain reserve officers who occupy civilian ART positions in active service beyond the mandatory retirement date established in 10 U.S.C. § 8848(a)). Accordingly, there is no basis on which to hold, generally, that matters relating to ART employment are specifically provided for by statute.

Nevertheless, we are mindful of the court's statement in NFFE v. FLRA that "the military enjoys special status, and its decisions involving the organization of security forces are especially shielded from outside interference." 852 F.2d at 1353. Indeed, the "complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments[.]" Chappell v. Wallace, 462 U.S. 296, 302 (1983). See also Brown v. Glines, 444 U.S. 348, 354 (1980) ("The military is, 'by necessity, a specialized society separate from civilian society.'") (citation omitted). In addition, members of the uniformed services are not "employees," for purposes of the Statute, 5 U.S.C. § 7103(a)(2)(B)(ii), and, as noted previously, n.1, it is unlawful for a person to bargain on behalf of members of the armed forces over terms or conditions of military service. 10 U.S.C. § 976(c)(2).

Consequently, we conclude that, even though ART employment is not specifically provided for by statute, a union may not bargain directly over purely military aspects of ART employment. That is, under section 7103(a)(14), conditions of employment do not include personnel policies, practices, and matters that relate only to the military service of an ART. Accordingly, a union proposal relating to, for example, the content of a policy applicable to ARTs only in their military capacities, will not be found to concern a condition of employment under the Statute.

We cannot ignore, however, the civilian aspects of ART employment:

As with non-ART employees, [ARTs'] duties and responsibilities during the working day are governed by the civil service laws and regulations. Promotions, RIFs, etc. are subject to civil service procedures. When working in their civilian capacities, the technicians do not wear military uniforms and are not required to follow the rules of "military courtesy."

American Federation of Government Employees v. Resor, 387 F. Supp. 63, 71 (D.D.C. 1974) (footnote omitted). See also id. at 70 ("When operating within the confines of the civil service laws the military departments, as other components of the executive branch, must abide by the definitional requirements of Title 5[.]"). Accordingly, insofar as the application of a military policy affects ARTs in their civilian capacities, a proposal relating to such effects may be found, consistent with the principles set forth in Antilles, to concern a condition of employment.

b. Application of the Framework

Proposal 1 has three requirements.(6) Section 1 requires the Agency to: (1) notify employees who are not in compliance with AFR 35-11 and afford them a reasonable period of time in which to achieve compliance; and (2) advise employees of the administrative consequences of continued noncompliance. Section 2 requires the Agency to provide affected employees an opportunity to use duty time to engage in physical exercise necessary to comply with the regulation. We will address the requirements separately.(7)

Section 1, the first sentence, requires the Agency to inform employees who are not in compliance with the fitness and weight requirements in AFR 35-11 of such noncompliance and afford them a reasonable period of time to comply. The Union interprets this sentence as requiring the Agency to provide written notice of both noncompliance and the amount of time provided to achieve compliance. See Reply Brief at 11 ("The [p]roposal requires the Employer, first, to notify employees in writing that they don't meet the fitness requirements and what is going to be done about it: the amount of the time the Employer would allow an employee to come into compliance . . . ."). As the Union's statement of intent is consistent with the plain wording of the sentence, we adopt it. We note, however, that neither party makes arguments regarding, or otherwise addresses, that aspect of this sentence requiring notice of noncompliance. Therefore, we will address only the portion of the sentence requiring the Agency to provide affected employees with written notice of a reasonable period of time in which they must achieve compliance. See n.6.

As noted previously, the record before us indicates that AFR 35-11 applies to ARTs in their military capacities only. It follows that determinations regarding compliance with the regulation, including the period of time that ARTs are given to comply, also apply to ARTs in their military capacities only. As such, we are compelled to conclude that section 1, the first sentence, addresses purely military aspects of ARTs' employment. Based on this conclusion, we conclude further that this sentence does not concern conditions of employment, within the meaning of section 7103(a)(14) of the Statute. Therefore, without addressing the Agency's other arguments regarding this sentence, we conclude that it is nonnegotiable.

Section 1, the second sentence, requires the Agency to advise employees of the "administrative consequences" of continued noncompliance with the requirements of AFR 35-11. The proposal does not define "administrative consequences." Based on the record as a whole, however, and in the absence of an assertion to the contrary, we interpret the proposal as requiring the Agency to notify employees who are not in compliance with AFR 35-11 of the consequences of such noncompliance to their civilian employment. See Reply Brief at 8 (Union states that Proposal 1 "applies and is limited only to civilian employees . . . . Thus, there is no attempt to negotiate over military conditions of employment[.]") (emphasis in original).

Nothing in the second sentence of section 1 relates to the content of AFR 35-11 or to the application of the regulation to ARTs in their military capacities. Moreover, the sentence clearly pertains to unit employees, as required by the first Antilles test. In addition, by addressing the "consequences" of noncompliance on civilian employment, we conclude that the proposal satisfies the second test in Antilles. That is, the wording of the sentence itself establishes the relationship between the proposal and the working conditions of unit employees. Accordingly, we conclude that section 1, the second sentence, concerns conditions of employment under section 7103(a)(14) of the Statute.

Section 2 of Proposal 1 requires the Agency to provide affected unit employees an opportunity to use duty time "to engage in physical exercise" to assist employees in complying with AFR 35-11. Section 2 addresses, by its terms, employees' use of duty time, without loss of pay, for certain activities. As such, and as the proposal pertains to unit employees, it involves conditions of employment. See American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 380 (1991) (in holding that proposal providing employees administrative leave to attend Boy Scout and Girl Scout functions concerned conditions of employment, Authority stated that as "administrative leave allows employees to be absent from duty with pay it affects conditions of employment. The fact that the administrative leave . . . is for participation in a non-work related activity does not alter . . . conclusion that administrative leave concerns a condition of employment."). Compare National Association of Government Employees, Local R1-134 and U.S. Deparment of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990) (proposals requiring contractors to fund, among other things, sports equipment, did not concern conditions of employment because record did not establish that the "subjects . . . are in any manner related to the employment relationship or . . . employees' work requirements"); Antilles, 22 FLRA at 238 (proposal providing employees with off-duty access to agency's recreational facilities did not concern conditions of employment).

In sum, Proposal 1 concerns conditions of employment insofar as it requires the Agency to: (1) notify unit employees who are not in compliance with AFR 35-11 of the consequences of continued noncompliance (section 1, the second sentence); and (2) provide affected employees with duty time to engage in physical exercise (section 2). As section 3 of the proposal relates solely to the duty time that the Agency will provide under section 2, it also concerns conditions of employment. However, section 1, the first sentence, which requires the Agency to provide employees with written notice of a period of time in which to comply with AFR 35-11, does not concern conditions of employment and is nonnegotiable.

3. Remaining Arguments

a. Section 1, the second sentence

Proposals requiring an agency to provide information to unit employees are negotiable provided the information concerns conditions of employment and is disclosable. For example, American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557, 561 (1991). In this case, it is unclear whether the Agency currently applies AFR 35-11 in a manner that affects ARTs' civilian employment.(8) However, it is clear from Selfridge that the Agency could choose to apply AFR 35-11 to ARTs in their civilian capacities or to apply the regulation in a manner that affects civilian conditions of employment. Moreover, if there are no such effects, the proposal would require nothing of the Agency. Put simply, consistent with our previous conclusion that section 1, the second sentence, concerns conditions of employment, we conclude also that the information required by the sentence concerns conditions of employment.

Moreover, we find that section 1, the second sentence, does not violate 10 U.S.C. § 976(c)(2). As set forth previously, n.1., this statutory provision prohibits bargaining on behalf of members of the armed services over conditions of military service. Here, the Union, as representative of civilian employees, seeks to bargain over a provision requiring the Agency to notify such employees of aspects of their civilian employment. As such, and as nothing in this portion of section 1 would require bargaining over AFR 35-11 itself or the application of the regulation to ARTs in their military capacities, we find that the proposal does not violate 10 U.S.C. § 976(c)(2).

There is no assertion, or other basis on which to conclude, that the information required by section 1, the second sentence, is not disclosable or that the sentence is otherwise nonnegotiable. Accordingly, we conclude that the sentence is negotiable.

b. Sections 2 and 3

Section 2 provides that employees who have been advised that they will be reassigned, downgraded, suspended, or removed unless they meet the fitness and weight limitations contained in AFR 35-11 will be afforded an opportunity "to use duty time to engage in physical exercise that will assist the employee[s] in meeting the employer's requirements." Section 3 provides that if the Agency determines that continued use of the duty time provided in section 2 "results in an untenable hardship on performance of the employer's work," the amount of time "is appropriate for renegotiation with [the Union]."

The Union states that section 2 "requires the [Agency] to allow employees duty time to be used for physical exercise[.]" Reply Brief at 11. The Union also states that although section 2 does not "state an amount of time[,] in bargaining, the intended time was discussed as being up to 3 hours per week." Petition for Review at 2. In its reply brief, the Union confirms that "the duty time would not initially be any minimum amount but it could not exceed 3 hours per week . . . ." Reply Brief at 12. As section 2 is silent as to the amount of duty time to be provided, the Union's statement that the section encompasses up to 3 hours of such time is not inconsistent with the plain wording of that section. Accordingly, we adopt the Union's interpretation of section 2.

Based on these statements, it appears that the Union intends section 2 to require the Agency to grant, at an affected employee's request, up to 3 hours of duty time each week for physical exercise. Thus, we read section 2, consistent with the Union's statements, as requiring the Agency to grant affected employees' requests for duty time provided an individual employee's request does not exceed 3 hours per week. This reading of section 2 also is consistent with section 3, which enables the Agency to renegotiate the amount of duty time provided in section 2 in certain circumstances.

However, the Union also states the following:

The amount of duty time . . . could be reduced by the Employer for several reasons: mission requirements of the Employer; lessened need for physical exercise as an employee progresses toward compliance with the fitness requirements; lessened need for improvement within the initial period of improvement; or expiration of the "reasonable period."

Reply Brief at 12. This statement appears to grant the Agency discretion to approve or deny requests for duty time or to determine the amount of such time that it will provide.

The Union does not specify whether the latter statement encompasses section 2 or section 3. If the statement is intended to encompass section 2, then section 3 is rendered meaningless. If the Agency has discretion to grant less duty time than requested under section 2, or to deny requests altogether, it then has no need to renegotiate the amount of such duty time under section 3. Similarly, if the statement is intended to encompass section 3, the statement is inconsistent with the plain wording of that section, which provides for renegotiation when use of duty time "results in an untenable hardship on performance of the employer's work[.]" Nothing in section 3 reasonably can be read as providing for renegotiation in other circumstances.

We conclude, therefore, that insofar as the Union interprets the proposal as either providing the Agency with discretion to deny requests for duty time, or grant less duty time than requested by an employee, under section 2, or expanding the bases on which renegotiations could be sought under section 3, the interpretation is inconsistent with the plain wording of those sections. We do not base negotiability determinations on statements of intent that are inconsistent with a proposal's plain wording. See Maine Air National Guard, 40 FLRA at 212.

Accordingly, based on the wording of sections 2 and 3 and the Union's other statements of intent, we construe section 2 as requiring the Agency to grant affected employees' requests for duty time, up to 3 hours each week, to engage in physical exercise to meet the weight and fitness requirements of AFR 35-11. We construe section 3 as providing for renegotiation of the amount of duty time provided by section 2 in situations where use of that time resulted in an "untenable hardship on performance of the employer's work." We will determine the negotiability of sections 2 and 3 in that context.

We reject the Agency's argument that sections 2 and 3 violate 10 U.S.C. § 976(c). See n.1. Like section 1 (the second sentence), sections 2 and 3 constitute the Union's proposals, as exclusive representative of civilian employees, to negotiate with the Agency, as civilian employer, over unit employees' civilian conditions of employment. Nothing in sections 2 and 3 would affect the content of AFR 35-11 or its application to ARTs in their military capacities. Therefore, we find no inconsistency between sections 2 and 3 and 10 U.S.C. § 976(c).

The Agency also argues that sections 2 and 3 interfere with its right to assign work under section 7106(a)(2)(B) of the Statute. We agree. Proposals requiring an agency to permit employees to use duty time for physical fitness activities directly interfere with the agency's right to assign work. National Association of Government Employees, Locals R12-122, R12-222 and U.S. Department of Defense, Washington National Guard, Tacoma, Washington, 38 FLRA 295 (1990) (Washington National Guard); National Association of Government Employees, Local R12-105 and U.S. Department of Defense, National Guard Bureau, The Adjutant General, California National Guard, 37 FLRA 462, 464 (1990) (California National Guard). See also Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508, 546-48 (1987), rev'd as to other matters sub nom. Fort Bragg Association of Educators, NEA v. FLRA, 870 F.2d 698 (D.C. Cir. 1989). Sections 2 and 3 would require the Agency to permit certain ARTs to use duty time to engage in physical exercise. Accordingly, for the reasons stated more fully in Washington National Guard and California National Guard, sections 2 and 3 directly interfere with the Agency's right to assign work.

Although sections 2 and 3 directly interfere with the Agency's right under section 7106(a)(2)(B) of the Statute, these sections are negotiable if they constitute an appropriate arrangement under section 7106(b)(3). To determine whether a proposal constitutes an appropriate arrangement, the Authority determines it is: (1) intended as 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 right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG).

Proposal 1 states that it is "an appropriate arrangement for employees affected by the management requirement that . . . employees maintain their physical condition . . . . " The Union confirms that the proposal is intended to mitigate the effects on employees of such requirements. We conclude, therefore, that sections 2 and 3 are intended as arrangements for adversely affected employees.

To determine whether a proposal excessively interferes with management's rights, the Authority balances the competing practical needs of employees and managers as they are affected by the proposal. KANG, 24 FLRA at 31-32. In Washington National Guard and California National Guard, the Authority concluded that proposals providing unit employees with up to 3 hours of duty time each week for physical fitness activities excessively interfered with the agencies' right to assign work. We reach the same conclusion here.

In California National Guard, the disputed proposal provided each unit employee with 3 hours of duty time each week for physical fitness activities. 37 FLRA at 462. In concluding that the proposal excessively interfered with the agency's right to assign work, the Authority noted that the National Guard technicians involved in that case were required to meet certain physical fitness requirements as a condition of retaining their civilian technician positions and that failure to meet those requirements could result in separation from such positions. The Authority held, however, that:

The benefit to employees of having duty time to engage in physical fitness activities is of relatively limited significance when compared to the significant burden on the [a]gency. Because the potentially adverse effects may arise only in limited circumstances as to particular employees and are not inevitable, it is excessively burdensome to require the [a]gency to provide 3 hours of duty time each week for every unit employee to engage in physical fitness activities. Further, the proposal does not allow exceptions. Thus, the [a]gency would be prevented from denying technicians duty time for physical fitness activities, for example, to respond to staffing shortages.

Id. at 467.

In Washington National Guard, the disputed proposal would have established a physical fitness program on duty time. As relevant here, the proposal provided that "[n]o more than three (3) hours of official time per week may be used for [the] program." 38 FLRA at 300. In finding that the proposal excessively interfered with the agency's right to assign work, the Authority stated:

The proposal in this case is to the same effect as the disputed proposal in California National Guard. Although the proposal in this case is more detailed and provides management with more flexibility in determining when an employee will participate in physical fitness activities, the result is the same: for up to 3 hours each week the [a]gency would be precluded from assigning work to any technician who participated in the program.

Id. at 302. Noting that the proposal enabled agency supervisors to control the use of duty time but did not allow them to deny requests altogether, the Authority concluded that the disputed proposal's benefits to employees did not outweigh "the significant limitations on management's ability to assign work." Id. at 303.

The proposal now before us differs from those in California National Guard and Washington National Guard. Unlike the proposal in California National Guard, the proposal does not provide a set amount of duty time for physical fitness activities. Instead, as discussed above, section 2 provides for "up to 3 hours per week." Petition for Review at 2. Moreover, unlike the proposal in Washington National Guard, section 2 does not apply to all unit employees who choose to participate in a physical fitness program. Section 2 applies only to unit employees who are subject to "reassignment, downgrade, suspension, or removal" for failure to comply with fitness and weight requirements. As noted previously, n.8, it is not clear that unit employees currently are subject to such actions, in their civilian capacities, based on AFR 35-11. However, like section 1 (the second sentence), section 2 is expressly conditioned on the existence of such actions. That is, if no unit employees currently are subject to civilian reassignments, downgrades, suspensions, or removals for failure to comply with AFR 35-11, section 2 would not require the Agency to provide any duty time for physical fitness activities.

However, sections 2 and 3 are similar to the disputed proposals in California National Guard and Washington National Guard in other respects. Like the proposals in those cases, section 2 would require the Agency to grant employee requests for duty time. Although sections 2 and 3 would not appear to limit the Agency's ability to schedule the use of duty time, the Agency could not deny the use of such time, even for mission-related reasons. Indeed, renegotiation of the amount of such duty time available under section 2 is provided, under section 3, only when the use of that time results in "an untenable hardship on performance of the employer's work[.]" Moreover, although section 2 would provide "up to" 3 hours of duty time, the amount of time granted within that cap would be determined by the affected employee, not the Agency. Put simply, provided an employee requested no more than 3 hours per week, the Agency would be required to grant the request, even if such factors as work requirements or staffing shortages dictated against release of the affected employee for physical fitness activities, unless the parties renegotiated the duty time entitlement under section 3.

Sections 2 and 3 could provide considerable benefits to affected unit employees. The sections also could have a significant impact on the Agency's right to assign work. On balance, we conclude that the impact of sections 2 and 3 on the Agency's right outweighs the benefits to employees and, therefore, these sections excessively interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, without addressing the Agency's argument that the sections also interfere with its right to determine the personnel by which Agency operations are conducted, we conclude that sections 2 and 3 are nonnegotiable.(9)

4. Summary

Section 1, the first sentence, of Proposal 1 does not concern conditions of employment under section 7103(a)(14) of the Statute and is nonnegotiable. Sections 2 and 3 excessively interfere with the Agency's right to assign work and are nonnegotiable.

Section 1, the second sentence, is negotiable. The introductory paragraph also is negotiable. See n.5.

III. Proposal 2

No contract award shall be made until all grievance procedures, up to and including arbitration, are exhausted in regard to either violations of any law, rule or regulation in a contracting-out decision or violations of contract provisions governing the impact and implementation of a contracting out decision.

A. Positions of the Parties

1. The Agency

The Agency asserts that Proposal 2 violates its right to make determinations with respect to contracting out under section 7106(a)(2)(B) of the Statute. The Agency relies on the decisions of the United States Court of Appeals for the District of Columbia Circuit in Department of the Treasury, Internal Revenue Service v. Federal Labor Relations Authority, 862 F.2d 880 (D.C. Cir. 1988) (IRS v. FLRA), rev'd as to other matters and remanded 110 S. Ct. 1623 (1990); and United States Customs Service v. Federal Labor Relations Authority, 854 F.2d 1414 (D.C. Cir. 1988) (Customs).

The Agency notes that Proposal 2 contains no wording identifying it as an appropriate arrangement. The Agency also claims that even if Proposal 2 is intended as an arrangement, it excessively interferes with the Agency's right to make determinations regarding contracting out "for reasons . . . fully espoused . . . in IRS[v. FLRA] and Customs." Statement of Position at 8.

2. The Union

The Union asserts that "Proposal 2 has its facial meaning." Reply Brief at 15. The Union argues that Proposal 2 is similar to other proposals the Authority has found negotiable as procedures under section 7106(b)(2) of the Statute. The Union claims that the proposal does not interfere with management's rights. The Union also claims that, if the Authority determines that the proposal "does interfere with a management right, the proposal is an appropriate arrangement for employees affected by the exercise of such right." Petition for Review at 1.

B. Analysis and Conclusions

Proposal 2 would prevent the Agency from implementing a decision to contract out until grievance and arbitration procedures were exhausted. The proposal encompasses grievances alleging violations of "any law, rule, or regulation . . . or violations of contract provisions governing the impact and implementation of a contracting out decision."

In National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 27 FLRA 976, 980 (1987) (IRS), the Authority found negotiable the following proposal:

a. No contract award shall be made until all grievance procedures, up to and including arbitration, are exhausted in regard to any contract provision pertaining to the impact and implementation of a contracting-out decision.

b. No contract award shall be made until all grievance procedures, up to and including arbitration, are exhausted in regard to any provisions (e.g., [Office of Management and Budget] Circular A-76, Statute) pertaining to the impact and implementation of a contracting-out decision.

The Authority stated, as relevant here, that proposals "to stay final agency action pending the outcome of the grievance procedure are negotiable procedures under section 7106(b)(2) of the Statute." Id. at 981 (citations omitted).

The Authority's decision that the proposal in IRS was negotiable was reversed by the U.S. Court of Appeals for the District of Columbia Circuit in IRS v. FLRA. The court held:

The . . . proposal . . . would oblige the agency to await an arbitrator's decision before going forward with a private sector procurement, and, . . . arbitrations of grievances under collective bargaining agreements can take years to resolve. It matters not whether the arbitrator ultimately approves or disapproves management's decision to contract out (and leaving aside difficult questions as to his authority to affect the decision in any way in fashioning a remedy for aggrieved employees), the delay alone could compromise the managerial judgment involved in procuring products or services necessary to the agency's mission when they are needed.

862 F.2d at 883 (citation omitted). According to the court, the proposal was directed at "when" the agency would exercise a management right and that matter was "'part and parcel'" of the right itself. Id. (quoting Customs, 854 F.2d at 1419).

Proposal 2 is substantively identical to the disputed proposal in IRS v. FLRA. Moreover, the Union confirms that the proposal now before us is to "the same effect" as the one in IRS v. FLRA. Reply Brief at 15-16. We conclude, therefore, based on the court's decision in IRS v. FLRA, that Proposal 2 directly interferes with the Agency's right to make determinations regarding contracting out. Compare National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1116-17 (1991) (Army, St. Louis) (Authority assumed, without deciding, that proposal delaying implementation of decisions to contract out until exhaustion of appeals procedure under Office of Management and Budget Circular A-76 directly interfered with the agency's right to make determinations regarding contracting out). In adopting the court's decision regarding the right to make determinations with regard to contracting out, however, we do not address whether other stay proposals directly interfere with other management rights. We note, in this regard, that the D.C. Circuit has found other stay proposals negotiable. See, for example, Defense Logistics Council of American Federation of Government Employees Locals v. FLRA, 810 F.2d 234, 241 (D.C. Cir. 1987) (court held negotiable proposal providing stay of agency decision to suspend driving privileges pending exhaustion of grievance and arbitration procedures); Department of Defense, Army-Air Force Exchange Service v. FLRA, 659 F.2d 1140, 1152-58 (D.C. Cir. 1981), cert. denied 102 S. Ct. 1443 (1982) (D.C. Circuit held negotiable proposal providing stay of removals and suspensions pending completion of grievance and arbitration procedures).

As noted previously, a proposal that directly interferes with a management right is negotiable if it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union asserts generally that if Proposal 2 is determined to interfere with a management right under section 7106 of the Statute, it constitutes an appropriate arrangement. The Union does not elaborate on its statement. We find, however, that the statement is sufficient for us to conclude, under KANG, that the proposal is intended as an arrangement for employees who are adversely affected by the exercise of the Agency's right to make determinations regarding contracting out.

We next determine whether the proposal excessively interferes with the Agency's right to contract out. We reject, in this regard, the Agency's argument that Proposal 2 excessively interferes for the reasons stated by the courts in IRS v. FLRA and Customs. The courts did not consider section 7106(b)(3) of the Statute in either of those decisions.

As noted previously, the Union provides no argument or other support for its general assertion that Proposal 2 constitutes an appropriate arrangement. Based on our decision in Army, St. Louis, however, it is apparent that implementation of decisions to contract out can result in significant adverse effects on unit employees. Among other things, implementation of such decisions can result in employee lay offs and reassignments. If a decision to contract out were to be rescinded pursuant to a grievance or arbitration decision, employees would have suffered needless disruption. Like the disputed proposal in Army, St. Louis, Proposal 2 would benefit employees "by avoiding unnecessary disruption to [them] and their families." 42 FLRA at 1118.

Unlike the proposal is Army, St. Louis, however, Proposal 2 could result in extensive delays in effecting decisions to contract out. Indeed, as noted by the court in IRS v. FLRA, "arbitrations of grievances under collective bargaining agreements can take years to resolve." 862 F.2d at 883 (citation omitted). It is clear that grievance and arbitration decisions may be rendered more quickly than contemplated by the court. Nevertheless, it also is clear that many stays under Proposal 2 would substantially exceed the 45-working day time period involved in Army, St. Louis. Compare 31 U.S.C. §§ 3553, 3554 (Competition in Contracting Act provides, with certain exceptions, that procurement contracts may not be awarded after agency has received notice of a timely filed bid protest; Comptroller General required to resolve such protests within 90 working days).

Moreover, Proposal 2 is broad. The proposal encompasses grievances alleging violations of any law, rule or regulation as well as violations of contract provisions governing the impact and implementation of decisions to contract out. By its plain terms, therefore, Proposal 2 would require a stay of a decision to contract out even if the underlying grievance did not concern, and a remedy for such grievance would not affect, the Agency's ultimate decision to contract out. Compare American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 42 FLRA 1351, 1358 (1991) (Authority rejected agency's argument that proposal would subject contracting out decisions to reversal by arbitrators based on harmless error).

In our view, Proposal 2 could afford unit employees significant benefits. The proposal also could have a significant impact on the Agency's right to make determinations regarding contracting out under section 7106(a)(2)(B) of the Statute. On balance, we conclude that the effect of Proposal 2 on the Agency's right outweighs the benefits afforded employees by the proposal. Accordingly, Proposal 2 excessively interferes with the Agency's right and is nonnegotiable.

IV. Order

The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning section 1, the second sentence, of Proposal 1 as well as the introductory paragraph of that proposal.(10) The petition for review is dismissed as to the remainder of Proposal 1 and Proposal 2.




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

1. Member Talkin's dissenting opinion as to a portion of Proposal 1 is set forth at footnote 9.

2. 10 U.S.C. § 976(c)(2) provides that it is unlawful for any person "to negotiate or bargain . . . on behalf of members of the armed forces, concerning the terms or conditions of service of such members[.]"

3. As noted, we will address separately whether AFR 35-11 applies to ARTs in both military and civilian capacities.

4. Section 7103(a)(14)(A), (B), and (C), excepts from the definition of conditions of employment matters:

(A) relating to political activities . . . ;

(B) relating to the classification of any position; or

(C) to the extent such matters are specifically provided for by Federal statute[.]

5. National Guard technicians must, as a condition of their continued employment, maintain military membership in the National Guard as well as compatible military and civilian job designations. See generally American Federation of Government Employees, AFL-CIO, Local 2953 v. FLRA, 730 F.2d 1534 (D.C. Cir. 1984).

6. Neither party makes specific arguments concerning the introductory paragraph. Moreover, it is apparent from its plain wording that the paragraph is dependent on, and meaningless without, the remainder of the proposal. Accordingly, we conclude that it is negotiable only insofar as a remaining section of the proposal is negotiable.

7. The Union requests the Authority to "sever any portions of the disputed [p]roposals which may be determined to be outside the obligation to bargain." Reply Brief at 1. We grant the request to the limited extent that we will determine the negotiability of portions of the proposal that, in our view, can stand independently of the rest of the proposal and that have been specifically addressed by the parties. See, for example, American Federation of Government Employees, Local 1409 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 747, 750 n.1 (1990).

8. It is undisputed that, "[a]s a condition of their civilian employment, ART employees must become and remain military members of the Air Force Reserves." Statement of Position at 1. See also Rolles v. Civil Service Commission, 512 F.2d 1319, 1320 (D.C. Cir. 1975) (Rolles v. CSC). It also is undisputed that "[l]oss of active reserve membership for reasons within the control of the ART employee results in separation from the civilian position." Statement of Position at 1-2. See also Rolles v. CSC, 512 F.2d at 1325; Baum v. Zuckert, 342 F.2d 145, 147 (6th Cir. 1965); Kansas National Guard, 5 FLRC at 140 n.27. Although it is reasonable to assume that an ART's compliance with AFR 35-11 is a matter within the employee's control, and that failure to comply with the regulation would result in an ART's loss of military membership, there are no such assertions in the record. In fact, the Union specifically notes that the Agency has not claimed that failure to comply with AFR 35-11 "necessarily lead[s] to loss of military membership or civilian employment." Reply Brief at 6 n.1.

9. Member Talkin would find that sections 2 and 3 constitute appropriate arrangements. Member Talkin notes that these sections would apply only insofar as employees have been notified that the