43:1279(105)NG - - NTEU and Regulatory Commission, Washington, DC - - 1992 FLRAdec NG - - v43 p1279

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43 FLRA No. 105

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. NUCLEAR REGULATORY COMMISSION

WASHINGTON, D.C.

(Agency)

0-NG-1862

DECISION AND ORDER ON NEGOTIABILITY ISSUES

January 31, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of four proposals.

Proposal 1 requires the Agency to give Agency employees first consideration for bargaining unit positions before candidates from any other sources are considered for selection. Proposal 1 is negotiable under section 7106(b)(2) of the Statute.

Proposal 2 requires the rating panel or rating official to prepare a written record of conclusions as to each candidate in a selection action and to submit that written record to the selecting official. Proposal 2 also provides that the numerical rating of each candidate on the best qualified list shall not be submitted to the selecting official. We find that Proposal 2 establishes a procedure for the Agency to follow in exercising its rights under section 7106(a)(2)(C) of the Statute. Therefore, Proposal 2 is negotiable.

Proposal 3 requires the Agency to stay a disciplinary or adverse action arising from implementation of the Agency's drug testing program until the completion of the negotiated grievance procedure or a statutory appeals procedure, or for 90 days, whichever occurs earlier. We find that Proposal 3 does not conflict with sections 5(b) and (c) of Executive Order 12564. We also find that Proposal 3 constitutes an appropriate arrangement for employees adversely affected by the exercise of the Agency's right to discipline employees under section 7106(a)(2)(A). We conclude, therefore, that Proposal 3 is negotiable under section 7106(b)(3) of the Statute.

The first and second sentences of Section C of Proposal 4 require that, at the time an employee is notified that he or she will be tested based on reasonable suspicion, management provide the employee with written reasons for ordering a drug test. We find that the first and second sentences of Section C of Proposal 4 do not directly interfere with management's rights under section 7106 of the Statute and, therefore, that they are negotiable. The third sentence of Section C of Proposal 4 states that the Agency will inform an employee who is to report for reasonable suspicion drug testing that the employee may consult with the Union before the test is administered. We find that the third sentence of Section C of Proposal 4 does not excessively interfere with management's rights under section 7106 of the Statute. Therefore, we conclude that the third sentence of Section C constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

The first sentence of Section E of Proposal 4 provides that employees who are notified to report for reasonable suspicion drug testing will be given the opportunity to respond to the Office Director or Regional Administrator before the test is administered. The proposal does not excessively interfere with the Agency's ability to conduct an investigation regarding use of illegal drugs and does not excessively interfere with management's rights to discipline employees or determine its internal security procedures. Therefore, the first sentence of Section E of Proposal 4 is negotiable as a procedure under section 7106(b)(2) of the Statute. Even assuming the first sentence of Section E directly interferes with management's rights, the first sentence of Section E would constitute an appropriate arrangement under section 7106(b)(3). Under the second sentence of Section E of Proposal 4, if employees successfully explain to the Office Director or to the Regional Administrator why a drug test is not required, the employees' personnel files will be purged of any reference to the test. We find that the Agency has not demonstrated that the second sentence of Section E of Proposal 4 is inconsistent with any law, rule or regulation. Accordingly, we find that the second sentence of Section E of Proposal 4 is negotiable.

II. Preliminary Matter

The Agency states that as to Proposal 3 specifically, and as to the other proposals generally, the Union has failed to raise the issue of whether the proposals constitute appropriate arrangements under section 7106(b)(3). The Agency asserts, therefore, that the Authority should not, sua sponte, raise the issue of whether the proposals constitute appropriate arrangements. The Agency claims that, in any event,

by establishing as we have attempted to, that in each instance the proposal would directly interfere with reserved management rights, we have also shown that [the] direct interference established is excessive in nature, and 'excessive interference' has been held to be the standard by which to hold nonnegotiable proposal for appropriate arrangements under subsection 7106(b)(3).

Statement at 13 n.5 (citation omitted).

Subsequently, the Union filed a response to the Agency's statement of position. In its response, the Union asserted for the first time that the proposals are negotiable under section 7106(b)(3) as appropriate arrangements for employees adversely affected by the exercise of management's rights under section 7106(a) of the Statute. Response at 1. The Agency did not request to file a supplemental statement addressing the Union's claim.

We find that the Union's claim that the proposals constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute is properly before us. See National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 624 n.2 (1990). Therefore, where appropriate, we will examine the Union's proposals under the analytic framework set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard), to determine whether the proposals constitute appropriate arrangements under section 7106(b)(3) of the Statute.

III. Proposal 1

Merit Selection Procedures

Section 22.4

22.4.1

The NRC [Nuclear Regulatory Commission] has the right, in accordance with applicable laws with respect to filling positions, to make selections for appointment from among properly rated and certified candidates for promotion or from any appropriate source.

22.4.2

The NRC agrees to grant first consideration to NRC employees when filling bargaining unit positions. To assure first consideration for NRC employees, the NRC shall rate and consider all NRC employee applicants for any unit position before the selecting official for a position may consider applications from any other sources. This does not preclude NRC from soliciting applicants from other sources. However, no applicant from another source may be considered until after the NRC has considered employee applicants under this subsection.

22.4.3

If the consideration of NRC employees alone does not result in the selection for the position and the NRC still desires to fill the position, the NRC will then include both NRC employees and sources other than NRC employees in the process. This second process will produce a hybrid list of both NRC employees and applicants from other sources. The applicants who were not previously rated by the panel must now be evaluated by the panel using, to the extent possible, the same procedures which were used to rate NRC employees. Once this is completed, the second (hybrid) best qualified list will be created from top candidates, whether NRC employees or other candidates. The number of names on the hybrid best qualified list shall be determined using the procedures contained in Section 22.20, except that the maximum number of names permitted on the hybrid list shall be six. Thereafter, this new hybrid list will be submitted to the selecting official for consideration. The names on this hybrid list shall be placed in alphabetical order, with no reference made as to whether the individual is an employee or not.

22.4.4

The provisions of Section 22.4.2 shall not apply to positions which have attracted fewer than three NRC employee applicants for any three consecutive vacancy announcements which have been posted following the effective date of this Agreement. All such positions shall thereafter be filled pursuant to the provisions of Section 22.4.3.

A. Positions of the Parties

1. Agency

The Agency states that section 22.4.2 of Proposal 1 would require that "first consideration . . . be given to NRC employees, who are rated and considered before outside applicants are even looked at." Statement at 6. The Agency contends that the proposal directly interferes with its right to hire under section 7106(a)(2)(A) and its right to make selections from any appropriate source under 7106(a)(2)(C) of the Statute.

The Agency claims that Proposal 1 has the same effect as the proposal found nonnegotiable in National Association of Government Employees, Local R5-165 and Tennessee Air National Guard, 35 FLRA 886 (1990) (Tennessee Air National Guard). The Agency states that Tennessee Air National Guard concerned a proposal that would preclude an agency from soliciting or considering military personnel for bargaining unit positions until after the placement process for currently employed technicians had been completed. According to the Agency, the Authority, relying on the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819, 822 (D.C. Cir. 1988) (Treasury, BATF v. FLRA), found that the proposal in Tennessee Air National Guard interfered with management's right to select employees from any appropriate source because it placed a substantive limit on that right.

The Agency interprets Treasury, BATF v. FLRA, Tennessee Air National Guard, and American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Naval Weapons Station, Charleston, South Carolina, 35 FLRA 1128 (1990) (Naval Weapons Station), as providing that first consideration of agency employees is consistent with the Statute "as long as there is concurrent consideration of outside employees from any other source, thereby preserving management's reserved right to select from any appropriate source and not limiting its field of consideration in any way." Id. at 6-7. The Agency claims, however, that "[t]he proposal here simply does not allow for that and therefore must be held as nonnegotiable." Id. at 7.

2. Union

The Union states that Proposal 1 is "intended to allow NRC employees first consideration for bargaining unit vacancies in certain circumstances." Petition at 3-4. The Union states that although under section 22.4.2 of the proposal the Agency "would have to rate, rank and consider [Agency] employees before considering any applicant from outside the [A]gency[,]" the process "would still permit the [A]gency to solicit candidates from other sources outside the NRC while internal applicants are getting first consideration." Id. The Union asserts that the proposal does not "mandate" the selection of an employee applicant. Id. at 4.

The Union states that section 22.4.3 of the proposal "provides concurrent consideration of employees and outside candidates by the selection official." Response at 6. The Union explains that under the proposal, the Agency would provide first consideration by rating and considering all Agency employees before the selecting official considers applications from any other sources. According to the Union, Proposal 1 expressly permits the agency to solicit applicants from other sources while Agency employees are being considered. The Union also contends that the proposal does not prevent the Agency from evaluating the qualifications of outside candidates while Agency employees are being considered. The Union maintains that Proposal 1 "merely prevents the referral of the outside candidates to the selecting official prior to the completion of the first consideration process." Id. at 5.

The Union notes that the proposal does not limit first consideration to unit employees only but allows the Agency to provide first consideration for all Agency employees. "Thus, the proposal permits the [A]gency to solicit and consider outside applicants simultaneous to the first consideration of [Agency] employees." Id. The Union also notes that section 22.4.4 of the proposal "allows positions demonstrated to hold no attraction to employees to be filled without having to undergo the first consideration requirement of [s]ection 22.4.2 [of the proposal]." Petition at 5. The Union states that under the proposal "[t]he Agency retains complete control over the range of candidates it wishes to consider." Id. at 6. The Union also states that "[t]he Agency retains discretion to determine the qualifications for a position, to determine which candidates are best qualified, and to select." Id. at 7.

The Union contends that because Proposal 1 requires first consideration of employees when filling vacancies, but does not prevent management from timely considering other applicants or expanding the area of consideration once Agency employees have been considered, the proposal does not directly interfere with management's right to select from any appropriate source. Therefore, the Union claims that Proposal 1 is the type of proposal described by the Authority in Naval Weapons Station and Tennessee Air National Guard that does not directly interfere with management's right to select from any appropriate source. The Union asserts that the Agency's reliance on Treasury, BATF v. FLRA is unfounded because, unlike the proposal in Treasury, BATF v. FLRA, Proposal 1 "expressly recognizes the [A]gency's right to solicit candidates from other sources . . . [and] does not prevent the [A]gency from evaluating the qualifications of outside applicants in anticipation of rating them together with employees under [Proposal 1]." Id. at 9-10.

B. Analysis and Conclusions

1. Meaning of the Proposal

Proposal 1 would require the Agency to give all Agency employees--not merely bargaining unit employees--"first consideration" for bargaining unit positions before candidates from any other sources are considered for selection. Section 22.4.1 of Proposal 1 acknowledges the Agency's right, in accordance with applicable laws, to make selections for appointment from among properly ranked and certified candidates for promotion or from any appropriate source.

Section 22.4.2 provides that the Agency shall give first consideration to Agency employees by submitting a list of properly rated and ranked Agency employees to the selecting official before the selecting official considers applications from other sources. Section 22.4.2 provides that first consideration under the proposal "does not preclude [the Agency] from soliciting applicants from other sources." The Union explains that:

First consideration is accomplished by rating and considering all [Agency] employees before the selecting official considers applications from any other sources. Significantly, [Proposal 1] expressly permits the agency to solicit applicants from other sources while [Agency] employees are subject to first consideration.

Response at 5.

Section 22.4.3 of Proposal 1 addresses the situation where the Agency chooses not to select a candidate from the list of Agency employees. That section provides that if first consideration of Agency employees does not result in the selection of a candidate for the position, the Agency will submit a "hybrid list of both [Agency] employees and applicants from other sources." Id. at 3. Section 22.4.3 provides that if the applicants were not previously rated by the panel they must be rated by the panel using, to the extent possible, the same procedures used to rate Agency employees and a "best qualified list will be created from top candidates, whether [Agency] employees or other candidates." Id. The Union states that "[t]his section requires only that employee candidates and other applicants be considered and ranked together, based, to the greatest extent possible, on the same rating factors." Petition at 4.

However, Section 22.4.3 does not mandate that the Agency rate and rank Agency employees and other candidates simultaneously, before the first consideration process. Section 22.4.3 merely provides that if other candidates were not previously rated and ranked with Agency employees, they must be "rated and ranked together based, to the greatest extent possible, on the same rating factors" before Agency employees and the other candidates are submitted together to the selecting official. Id. The Union states the following:

The proposal does not prevent the [A]gency from evaluating the qualifications of outside candidates . . . while [Agency] employees enjoy their first consideration. It merely prevents the referral of the outside candidates to the selecting official prior to the completion of the first consideration process. Thus, the proposal permits the [A]gency to solicit and consider outside applicants simultaneous to the first consideration of [Agency] employees.

Response at 5.

Under Section 22.4.4 of Proposal 1, "positions demonstrated to hold no attraction to employees" are excluded from the first consideration requirement in Proposal 1. Petition at 5.

In sum, by its terms and as explained by the Union, Proposal 1 requires management to give first consideration to Agency employees when filling a vacant position. The proposal permits the Agency to solicit outside candidates at the same time that Agency candidates are solicited. The proposal also permits, but does not require, management to rate and rank outside candidates while internal candidates are being considered so that if the selecting official does not wish to select an Agency employee, a hybrid list of internal and outside candidates can be forwarded for consideration.

2. The Proposal Does Not Directly Interfere with Management's Right to Select under Section 7106(a)(2)(C) of the Statute

Proposals that preclude management from rating and ranking other candidates until after a preliminary placement process for currently employed bargaining unit employees has been completed directly interfere with management's right, when filling a vacant position, to select employees from among properly ranked and certified candidates for promotion or from any other source under section 7106(a)(2)(C) of the Statute. American Federation of Government Employees, Local 2429 and U.S. Department of the Air Force, Headquarters Space Systems Division, Los Angeles, California, 38 FLRA 1469 (1991) (Headquarters Space Systems Division). Those proposals would inhibit management's ability to look at best-qualified candidates from outside the agency. Id. at 1477. See also Tennessee Air National Guard, 35 FLRA at 889-90. However, a proposal that requires an agency to give priority consideration to bargaining unit candidates, but does not prevent the concurrent solicitation and rating and ranking of outside candidates, does not directly interfere with management's right, when filling a vacant position, to select employees from among properly ranked and certified candidates for promotion or from any other source. In other words, a proposal which requires an agency to refer a group of candidates from one source (for example, bargaining unit employees) to the selecting official for first consideration, but which does not preclude the agency from concurrently soliciting, rating and ranking applicants from another source, does not directly interfere with management's right, when filling a vacant position, to select employees from among properly ranked and certified candidates for promotion or from any other source under section 7106(a)(2)(C). Such a proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute. See National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422, 436-41 (1987) (Chairman Calhoun concurring) (Provision 1, providing that the agency shall consider bargaining unit employees before it considers candidates from other sources when the agency makes selections for a position, found to constitute a negotiable procedure).

We find, based on the wording of the proposal and the Union's explanation, that Proposal 1 would require only that the Agency give priority consideration to Agency employees, and does not prevent the concurrent review--that is, the solicitation, rating and ranking--of candidates from other sources. Thus, Proposal 1 is distinguishable from the proposal in Headquarters Space Systems Division. The proposal in that case required management to consider unit employee candidates before rating and ranking outside candidates. Proposal 1 merely establishes a procedure for the Agency to follow in exercising its right to make selections under section 7106(a)(2)(C). See, for example, National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA 1041, 1055-56 (1987) (Chairman Calhoun concurring) (proposal requiring the agency, among other things, to give priority consideration to certain employees constituted a negotiable procedure under section 7106(b)(2) for the agency to follow when filling vacancies). Therefore, we conclude that Proposal 1 is negotiable under section 7106(b)(2) of the Statute.

Because we have found that Proposal 1 establishes a procedure for the Agency to follow in exercising its rights under section 7106(a)(2)(C) of the Statute and, therefore, that the proposal is negotiable under section 7106(b)(2) of the Statute, we need not address the Union's claim that Proposal 1 is negotiable under section 7106(b)(3) of the Statute as an appropriate arrangement.

IV. Proposal 2

Section 22.20

The NRC has determined that the rating official or rating panel will make written records to explain the reasons why a particular grade was assigned to each rating factor. Such written records will become a part of the files in the promotion or placement actions. At the conclusion of the rating process, the rating official or panel will prepare a "Candidate Evaluation Certification and Selection Record." Such record will be reviewed by the Office of Personnel to assure that the rating official or rating panel has complied with the procedures set forth in this Article. Upon completion of such review, the record will be sent to the selecting official along with the application package submitted by each best qualified candidate. The selecting official shall not receive the numerical rating for any specific candidate on the best qualified list. However, the highest and lowest scores (reflecting the range of scores on the best qualified list) will be provided to the selecting official. Additionally, the selecting official may not receive the names of any candidate for a position who was not rated and ranked high enough to be on the best qualified list.

[Only the underscored portions of the proposal are in dispute.⁽¹⁾]

A. Positions of the Parties

1. Agency

The Agency states that Proposal 2 "would require that the rating official or rating panel 'make written records to explain the reasons why a particular grade was assigned to each rating factor' in evaluating candidates." Response at 7. The Agency contends that the proposal directly interferes with its rights under section 7106(a) of the Statute to hire, assign work, and make selections for appointments from any other appropriate source and its right under section 7106(b) of the Statute to determine the methods and means of performing work.

The Agency asserts that "the role of rating panels in the selection process and their deliberations are matters which have been exclusively reserved to management by the courts and the Authority." Id. at 7-9 (citing National Federation of Federal Employees, Local 1745 v. FLRA, 828 F.2d 834 (D.C. Cir. 1987) (NFFE v. FLRA); Service Employees International Union, AFL-CIO and Department of Health and Human Services, 34 FLRA 704 (1990)). The Agency claims that "the functioning of the rating panel is wholly a management function." Response at 10 (emphasis in original). The Agency also asserts that "[b]y requiring rating panels to justify their actions with written records[,] the proposal seeks to assign work, to determine how a rating panel will function, including the methods and means of deliberation, and to control the discussions and thought processes of the panel." Id. (emphasis in original). The Agency claims that Proposal 1 interferes with the panel's deliberative process because it "giv[es] validity only to those deliberations which are recorded." Id. (emphasis in original). The Agency argues that the proposal would "directly interfere with management's right to select by qualifying the method by which rating panels function in requiring a written record, [and by] having an intrusive and chilling effect upon free and open discourse between members of rating panels in their deliberations." Id. at 11.

2. Union

The Union contends that Proposal 2 constitutes a negotiable merit promotion procedure under section 7106(b)(2) of the Statute. The Union claims that the Agency's reliance on NFFE v. FLRA is misplaced. The Union asserts that Proposal 2 does not "contemplate union participation in the panel's rating process[,]" as was the case in NFFE v. FLRA. Response at 11. The Union states that the proposal in NFFE v. FLRA "create[d] the possibility that the Union could persuade or sway a panel member, inspire a panel member, provoke a deadlock or otherwise assume the role of a decision maker." Id. at 12. The Union asserts that "[d]espite the [A]gency's efforts to create the impression of union interference in the rating process, the instant proposal in no way interferes with the panel and leaves the 'wholly management' functioning of the panel intact." Id.

The Union states that the Agency's argument that recording the rating panel's deliberations will result in a chilling effect on the panel members is "unconvincing." Id. at 13. The Union asserts that "[t]he proposal does not require the panel to adopt any particular way of rating employees. Neither does the proposal require the panel to assign any specific rating to any employees. The rating of employees is left exclusively to the rating panel, with no interference from or influence by the Union." Id. According to the Union, Proposal 2 "does nothing more than require the panel to have its rationale recorded. The recordation could take place simultaneous to the rating process or at the conclusion of the rating process. Either way, the recording of the panel's rationale is only ancillary to the decision making process." Id. The Union claims that "[r]ecording the panel's deliberations is entirely consistent" with Federal Personnel Manual (FPM) chapter 335, subchapter 1-4, Requirement 5.⁽²⁾ Id. at 13.

The Union contends that Proposal 2 does not interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. The Union asserts that "the proposal does not specify that the task of recording the panel's rationale be performed by any particular non-bargaining unit employee." Id. at 14. The Union states that Proposal 2 "permits management to exercise its statutory discretion to assign the task of serving on the panel and recording the panel's deliberations to whomever it elects. It does not assign the task to particular individuals or organizational segments." Id.

The Union also contends that the Agency's assertion that the proposal interferes with its right to determine the methods and means of performing work is "undeveloped" and should be rejected. Id. at 11. The Union argues that in order for Proposal 2 to be nonnegotiable under section 7106(b)(1) of the Statute, it must affect the method or means chosen by the Agency to accomplish or further the performance of its work. The Union asserts that the method and means also must be directly and integrally related to the performance of the Agency's work. The Union argues that the Agency has offered no explanation of how recording the rationale of a promotion panel is directly and integrally related to the performance of its mission-related work.

Finally, the Union contends that if the proposal is found to interfere with a management right, the proposal is nonetheless an appropriate arrangement because "[r]equiring the panel's rationale [for selection] to be recorded has only minimal impact on the ability of the [A]gency to select or assign work." Response at 17. The Union argues that the proposal "does not require the [A]gency to act in any particular fashion and is merely a ministerial function." Id. The Union argues that the requirement of the proposal that the rating officials record the reasons for applicant ratings "is essential to evaluate whether the rating process was properly conducted." Petition at 6. Further, the Union asserts that an employee "adversely affected by arbitrary, capricious or illegal decision making has access to a record of the decision making process to support his claim in a grievance or statutory appeal." Id. Accordingly, the Union concludes that the impact on the Agency is far outweighed by the benefits derived by the employees from the requirement that the panel record the reasons for each rating.

B. Analysis and Conclusions

For the following reasons, we conclude that Proposal 2 is negotiable.

Proposal 2 requires Agency rating panels and officials to prepare a written record of their reasons for assigning a particular grade on each rating factor for each candidate. The proposal provides that the records will be submitted to the selecting official as part of the application package of each "best qualified" candidate. The proposal provides that the numerical rating as to each candidate on the best qualified list shall not be submitted to the selecting official. Under the proposal, only the highest and lowest numerical rating of candidates on the best qualified list (reflecting the range of scores) shall be submitted to the selecting official. Proposal 2 does not provide for Union participation as a member or an observer on an Agency rating and ranking panel. Proposal 2 also does not involve the Union in the deliberations of Agency rating panels. Thus, the Agency's reliance on NFFE v. FLRA, and the cases cited in its brief concerning union participation on agency rating panels, is misplaced.

1. Management's Right to Select

Management's authority to fill positions includes the right, under section 7106(a)(2)(C)(i) of the Statute, to make selections for appointments from among properly ranked and certified candidates or, under section 7106(a)(2)(C)(ii), to select from any other appropriate source. See Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1415 (1991); Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 135 (1988) (Provision 3). The Authority has held that "the deliberative process associated with the exercise of management's section 7106 rights does not prohibit the disclosure of information relied on in exercising those rights" or statements setting forth the reasons for management's determinations with regard to the exercise of those rights. Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 813-14 (1991), petition for review filed sub nom. Department of Commerce, Patent and Trademark Office v. FLRA, No. 91-1179 (D.C. Cir. April 17, 1991).

The requirement in Proposal 2 that the Agency make a written record explaining the reasons why a particular grade was assigned to a rating factor by the rating officials does not affect the ability of the rating officials to deliberate on and discuss the ratings given each candidate. The requirement of a written record also does not prevent the Agency from considering any candidate for selection or establish any substantive criteria that the Agency must consider in the rating and ranking or selection process. We find that by requiring a written explanation of the rating officials' grade assignments as to each rating factor, Proposal 2 merely establishes a procedure for the Agency to follow in exercising its rights under section 7106(a)(2)(C) of the Statute. Proposals requiring an agency to provide a statement setting forth the reasons for the agency's action are negotiable procedures under section 7106(b)(2) of the Statute. See, for example, AFSCME, Local 2027 and ACTION, 27 FLRA 191, 194-97 (1987) (Chairman Calhoun, concurring).

2. Management's Right to Assign Work

We reject the Agency's argument that "[b]y requiring rating panels to justify their actions with written records[,] the proposal seeks to assign work[.]" Statement at 10 (emphasis in original). The proposal provides that a written record will be prepared by the rating official or rating panel. The proposal is premised on the Union's undisputed assertion that the Agency "has determined that the rating official or rating panel will make written records to explain the reasons why a particular grade has been assigned to each rating factor." Petition at 5. The Union states that the proposal is intended to "require[] the Agency to perform a task, the recording of the panel's rationale, but allows the [A]gency . . . to exercise its discretion to assign the task of serving on the panel and recording the panel's deliberations to whomever it elects." Response at 14.

We note that the Agency does not dispute the Union's claim that Proposal 2 reflects the requirements of the rating and ranking process already established by the Agency. We also note that the proposal does not specify which employees will rate and rank candidates. Under the proposal, the Agency retains its ability to designate who will be on a ranking panel. Further, the proposal preserves the Agency's right to specify, from among the employees on the panel, who will perform the task of recording the rating panel's conclusions.

Proposals establishing a procedure that an agency will follow in exercising its management rights under section 7106(a) are not nonnegotiable simply because they require the agency to assign someone to implement the procedure. National Labor Relations Board Professional Association and General Counsel, National Labor Relations Board, 32 FLRA 557, 563-64 (1988) (NLRB). See also National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 367-68 (1990) (Naval Plant Representative Office).

Because Proposal 2 establishes a procedure that the Agency will follow in exercising its right to select and because the proposal does not impermissibly specify who will implement the procedure, we find, consistent with NLRB and Naval Plant Representative Office, that the proposal does not directly interfere with management's right to assign work. See also American Federation of Government Employees, AFL-CIO, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 42 FLRA 599, 613-15 (1991) (Immigration and Naturalization Service); U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Payment Center Locals, Local 1760, 36 FLRA 466, 473-74 (1990) (Northeastern Program Service Center).

3. Management's Right to Determine the Methods and Means of Performing Work

We reject the Agency's argument that by requiring rating panels to "justify their actions with written records," Proposal 2 concerns a matter related to the determination of the methods and means of performing work under section 7106(b)(1) of the Statute. Statement at 10. The Agency argues that Proposal 2 seeks "to determine how a rating panel will function, including its methods and means of deliberation, and to control the discussions and thought processes of the panel, giving validity only to those deliberations which are recorded." Id. (emphasis in original).

In order to demonstrate whether a proposal directly interferes with management's right to determine the methods and means of performing work, an agency must show that: (1) there is a direct relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission; and (2) the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. American Federation of Government Employees, National Veterans Administration Council and U.S. Department of Veterans Affairs, Washington, D.C., 40 FLRA 1052, 1066 (1991) (U.S. Department of Veterans Affairs).

The Agency has made no attempt to demonstrate a direct and integral relationship between the requirement for written rating records and the accomplishment of its mission and none is apparent to us. The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). A party failing to meet its burden acts at its peril. Northeastern Program Service Center, 36 FLRA at 475 (1990). Consequently, we find that the Agency has failed to provide a record to support a conclusion that requiring the Agency to make a written record of the reasons for specific ratings constitutes a determination of the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. We conclude that the proposal does not directly interfere with management's rights under section 7106(b)(1). See id. at 474-75.

Because we have found that Proposal 2 is a negotiable procedure under section 7106(b)(2) of the Statute, we need not address the Union's claim that Proposal 2 is an appropriate arrangement.

V. Proposal 3

Section 45 (Drug Policy Proposal)

Stays

Any disciplinary action or adverse action against an employee shall be stayed until the completion of the grievance procedure or statutory procedure or for a period of ninety (90) days, whichever comes first. This section does not prevent NRC from exercising its right to reassign an employee during the stay if the employee occupies a position in which he may be a danger to himself or others.

A. Positions of the Parties

1. Agency

The Agency states that notwithstanding the portion of the proposal allowing reassignment, Proposal 3 would require that any disciplinary or adverse action against an employee be stayed for a period or 90 days or until the completion of the grievance procedure, whichever comes first. The Agency asserts that the proposal causes a delay in the exercise of management's right to impose discipline. The Agency states that the courts have held that where a delay in the exercise of a management right "'so affects the environment within which the agency is allowed to act that it equates to a substantive restraint on the Agency's ability to act,'" a proposal imposing that delay directly interferes with the exercise of the right. Statement at 14 (quoting Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505, 1512 (D.C. Cir. 1989) (Bureau of Land Management) and also citing Treasury, BATF v. FLRA, 857 F.2d at 821). The Agency also asserts that "it has been held that a proposed delay which would curtail the agency's ability to implement a program is nonnegotiable." Id. (citing Department of the Treasury, Internal Revenue Service v. FLRA, 862 F.2d 880 (D.C. Cir. 1989) (IRS v. FLRA)).

The Agency contends that the proposal is inconsistent with law, as established in case precedent and the Statute. The Agency argues that "[i]n the present case the proposal for a delay runs afoul of the [C]ircuit [C]ourt[s'] decisions both as to whether a suspension or disciplinary action will be taken and as to when it will be taken by the agency." Id. at 14-15. In support of its argument, the Agency cites Bureau of Land Management, 873 F.2d at 1512; Treasury, BATF v. FLRA, 857 F.2d at 821; and IRS v. FLRA, 862 F.2d at 880. The Agency states that "the interjection of a delay in disciplining employees . . . for a drug abuse violation would effectively delay and curtail the implementation of an effective and efficient drug testing program in the [A]gency as required by the Executive Order." Id. at 15. The Agency notes that the Authority "has issued a number of decisions regarding delaying discipline which are consistent with the Agency's views that such [a proposal as Proposal 3] would curtail discipline and internal security[,]" and is, therefore, nonnegotiable. Id. at 15-17. In particular, the Agency cites National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105 (1986) (Eastern Mapping Agency), where, according to the Agency, the Authority recognized an agency's right to act immediately to terminate an employee under 5 U.S.C. § 7513(b)(1). The Agency argues that "in limiting the [A]gency's action to reassignment during the stay, [Proposal 3] would limit the [A]gency's discretion to determine an appropriate disciplinary penalty to a minimum penalty and[,] therefore[,] . . . directly interfer[es] with management's right to discipline under section 7106(a)(2)(A) of the Statute." Id. at 18 (citations omitted).

The Agency also argues, citing American Federation of Government Employees, Council of Marine Corps Locals (C-240) and Department of the Navy, U.S. Marine Corps, 35 FLRA 1023, 1029-30 (1990) (U.S. Marine Corps) and Eastern Mapping Agency, that Proposal 3 is nonnegotiable under section 7106(a) and is inconsistent with section 7101(b) of the Statute because it would allow employees to refuse, with impunity, to carry out their work assignments and the Agency would have no effective method of holding employees accountable for their work during the period of the stay.

The Agency also contends that the proposal is inconsistent with Executive Order 12564.⁽³⁾ The Agency states that section 5(c) of the Executive Order requires that the Agency must, at a minimum, temporarily remove employees in sensitive positions if the employee is found to use illegal drugs. The Agency also states that section 5(b) of the Executive Order requires the Agency to take disciplinary action against employees who are found to use illegal drugs unless certain exceptions related to rehabilitation apply. The Agency concludes that Proposal 3 "would not only excessively curtail the [A]gency's ability to discipline and to determine its security program, but it also would contravene the provisions of the Executive Order that require prompt and decisive disciplinary action to be taken." Id. at 17.

2. Union

The Union asserts that "[a]mple authority and court precedent dictate that [Proposal 3] is a negotiable procedure" under section 7106(b)(2) of the Statute. Response at 18.

The Union claims that the proposal does not prevent the Agency from acting, but merely delays the Agency's exercise of its right to implement a disciplinary action. The Union also claims that the proposal would not prevent the Agency from taking disciplinary action based on other types of misconduct by an employee during the stay. The Union states that the proposal "allows the [A]gency to reassign employees during the period covered by the stay if they occupy positions in which they [will] be a danger to themselves or to others." Id. at 21. The Union asserts that "[t]he Authority and courts have held proposals which created stays of disciplinary and adverse actions to be negotiable." Id. at 19.

The Union argues that the court cases relied on by the Agency in support of its allegation of nonnegotiability present circumstances "drastically different" from the circumstances presented in Proposal 3. Id. at 20. The Union states that in Treasury, BATF v. FLRA and IRS v. FLRA "the [c]ourt dealt with proposals which prevented the initiation of activities wholly reserved to management" and which "would have resulted in the virtual nullification of the agency's right to engage in any meaningful exercise of its right." Id. The Union argues that Proposal 3 "merely seeks to allow a reasonable period of time for the remedial processes to conclude before the [A]gency exercises its rights." Id. According to the Union, the proposal "does not prevent the [A]gency from implementing a program or preclude the [A]gency from engaging in actions which are unreviewable." Id. at 20-21.

The Union also argues that the Agency misapplies Authority precedent in claiming that Proposal 3 is not a negotiable procedure. The Union states that the proposal "does not override or otherwise contravene" 5 U.S.C. § 7513(b)(1) and that "[c]orrect application of 5 U.S.C. § 7513(b)(1) would supersede operation of [Proposal 3]."⁽⁴⁾ Id. at 21. The Union claims that the proposal is not inconsistent with section 7513(b)(1), but, rather, "simply does not reference the statute." Id. The Union asserts that "'mere silence with respect to related legal requirements does not render a provision outside the duty to bargain unless the provision is inconsistent with those requirements.'" Id. at 22 (quoting 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, 135 (1987)).

The Union argues that the Agency "misapplies" Eastern Mapping Agency. Response at 21. The Union maintains that the proposal at issue in Eastern Mapping Agency is distinguishable from the proposal in this case because it applied only to removals and allowed an employee to remain in a pay status after a final decision by the Agency to remove the employee. The Union states that the stay protection in Proposal 3 is only activated if the employee grieves the Agency's action or the Agency's decision is the subject of an administrative appeal. The Union asserts that Proposal 3, unlike the proposal in Eastern Mapping Agency, does not delay discipline in order to allow an employee to "simply enjoy another ninety (90) days of paid service." Id. at 22.

Finally, the Union asserts that the proposal does not conflict with Executive Order 12564. The Union asserts that "[t]he [A]gency misrepresents the operation of Section 5(b) and 5(c) to require the immediate imposition of disciplinary action against an employee in a sensitive position who has been found to have used illegal drugs." Id. at 24. The Union states that section 5(b) only requires agencies to initiate action to discipline employees found to have used illegal drugs. The Union argues that Proposal 3 "does not prevent the [A]gency from initiating disciplinary action. Indeed, the provision takes effect only after the agency has initiated disciplinary action." Id. at 25 (emphasis in original). The Union states that section 5(c) of the Executive Order "simply prohibits an agency from allowing employees to remain on duty in a sensitive position prior to completing a rehabilitation program. It does not require the immediate suspension or removal of the employee from employment." Id. The Union asserts that "[t]he instant proposal is once again in keeping with Section 5(c) since it permits the [A]gency to reassign any employee during a stay if the employee may be a danger to himself or others. Thus, the [A]gency retains the authority to remove an employee from a sensitive position as contemplated in Section 5(c)." Id.

The Union argues that, in the event the proposal is found to interfere with a management right, the proposal nevertheless constitutes an appropriate arrangement for employees adversely affected by the exercise of management's right to impose a penalty for illegal drug use. The Union maintains that "imposition of a penalty for illegal drug use impacts dramatically on an employee." Id. at 27. The Union asserts that Proposal 3 "minimally impacts management's right to discipline and to determine its internal security" because the stay contemplated by the proposal is not indefinite. Id. The Union states that "[a]n employee's entire life may be harmed by the wrongful imposition of a penalty for illegal drug use." Id. at 27-28. The Union asserts that the Agency is free during the 90-day period to initiate disciplinary action if an employee engages in misconduct independent of the allegation of illegal drug use. The Union also asserts that "the proposal allows management to exercise its right to reassign any employee who poses a threat to himself or to others." Id. at 27. According to the Union, "[t]he benefit of a stay to an employee who is wrongfully accused of illegal drug use far outweighs its negative impact on management's rights." Id.

B. Analysis and Conclusions

Proposal 3 requires the Agency to stay a disciplinary or adverse action against an employee who is found to use illegal drugs, until the completion of the negotiated grievance procedure or a statutory appeals procedure, or for 90 days, whichever occurs earlier. The Union states that Proposal 3 "addresses situations where the [A]gency has proposed to take disciplinary action against an employee on the basis of a positive drug test. It would not . . . prevent the [A]gency from taking disciplinary action based on other types of misconduct by an employee during the stay." Id. at 21.

1. Executive Order 12564

Based on the plain wording of Proposal 3 and the Union's explanation of the proposal, we reject the Agency's assertions that Proposal 3 conflicts with sections 5(b) and (c) of Executive Order 12564.

Section 5(b) of Executive Order 12564 provides that agencies shall initiate action to discipline an employee who is found to use illegal drugs, except where the employee: (1) voluntarily identifies himself or herself as a user of illegal drugs, or volunteers for drug testing pursuant to section 3(b) of the Executive Order before being identified as an illegal drug user through other means; (2) obtains counseling or rehabilitation through an Employee Assistance Program; and (3) thereafter refrains from using illegal drugs.

Based on the wording of the proposal and the record, we find that Proposal 3 does not preclude the Agency from initiating a disciplinary or adverse action against an employee who is found to use illegal drugs. The wording of Proposal 3 indicates that the proposal takes effect after the Agency initiates a disciplinary action and the employee files an appeal under contractual or statutory appeal procedures. As the Union states, "the [proposal] takes effect only after the [A]gency has initiated disciplinary action." Response at 25 (emphasis in original). Inasmuch as Proposal 3 does not preclude the Agency from initiating a disciplinary action, we conclude that Proposal 3 is consistent with section 5(b) of the Executive Order.

Section 5(c) of the Executive Order provides that agencies shall not allow any employee to remain on duty in a sensitive position who is found to use illegal drugs. Section 5(c) also provides that an agency may, in its discretion, allow an employee to return to duty to a sensitive position if it is determined that this action would not pose a danger to public health or safety or the national security.

Based on the plain wording of the proposal, we find that the proposal would not prevent the Agency from taking administrative action, including removing employees from sensitive positions pending the resolution of the employees' grievances or statutory appeals. In fact, the proposal provides that the Agency is not prevented "from exercising its right to reassign an employee during a stay if the employee occupies a position in which he may be a danger to himself or others." The Union states that "[s]ince some members of the bargaining unit occupy positions in which a person operating at a diminished capacity could pose a threat to himself or others, the proposal allows the [A]gency to reassign such employees to less sensitive duties." Petition at 7. By stating that the Agency may reassign an employee who could "pose a threat to himself or others," the Union acknowledges the Agency's authority under section 5(c) of the Executive Order to reassign employees who "pose a danger to public health or safety or the national security." The wording in the proposal is substantively the same as the wording in section 5(c). Therefore, we find that the proposal allows the Agency to reassign employees for the reasons set forth in section 5(c) of the Executive Order.

Because we find that Proposal 3 allows the Agency to exercise its right to remove an employee from a sensitive position in the circumstances described in section 5(c) of the Executive Order, we conclude that Proposal 3 is consistent with section 5(c) of Executive Order 12564. See American Federation of Government Employees, Local 1603 and U.S. Department of the Navy, Naval Air Station, Patuxent River, Maryland, 36 FLRA 162, 165-67 (1990) (proposal informing employees that enrolling in an employee assistance program would not immunize them from subsequent disciplinary action was consistent with, among other things, section 5(c) of Executive Order 12564). Compare American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1065-68 (1988), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, Case No. 88-7408 (9th Cir. Feb. 7, 1989) (proposal preventing the agency from taking administrative action against employees with alcohol or drug problems until employees were afforded reasonable accommodation and rehabilitative assistance found outside the duty to bargain because it was inconsistent with Executive Order 12564).

2. Management's Right to Determine Internal Security Practices

It is well established that an agency's use of random testing as a part of its drug testing program constitutes an exercise of management's right to determine its internal security practices. National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046 (1988) (Rock Island I), remanded as to other matters sub nom. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988) (order), decision on remand, 33 FLRA 436 (1988) (Rock Island II), rev'd in part and remanded as to other matters sub nom. Aberdeen Proving Ground, 890 F.2d 467 (D.C. Cir. 1989), decision on remand, 35 FLRA 936 (1990) (Rock Island III).

The Agency claims that Proposal 3 "directly interferes with the [A]gency's internal security program which, going hand in hand with the ability to discipline may be required to be invoked in appropriate cases." Statement at 15. The Agency argues that "the interjection of a delay in disciplining employees . . . would effectively delay and curtail the implementation of an effective and efficient drug testing program in the Agency as required by [Executive Order 12564]." Id.

Proposal 3 addresses only disciplinary actions against employees for illegal drug use that is discovered through the drug testing program established by the Agency. The proposal does not prevent the Agency from establishing or implementing a drug testing program. The Agency remains free to structure its drug testing program as it chooses. The proposal also does not prevent management from testing the employee, on any ground provided in the Agency's drug testing plan, for illegal drug use during the stay period.

Moreover, to the extent that the proposal would require the Agency to retain an employee found to use illegal drugs in a duty status for the period covered by the stay, thus potentially increasing the risk to its security, the proposal does not preclude management from taking other administrative actions to reduce or eliminate that risk. As we noted above, the proposal specifically provides that the Agency is free to exercise its right to reassign an employee during a stay if the employee occupies a position in which he or she may be a danger to himself or herself or to others.

Consequently, we find that the Agency has failed to demonstrate that by providing for a stay of a disciplinary or adverse action for illegal drug use for a maximum of 90 days or pending the completion of the appropriate grievance or appeals procedures, Proposal 3 directly interferes with the Agency's ability to establish and implement a drug testing program and, thereby, directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. Moreover, as we found above, Proposal 3 allows the Agency to initiate discipline consistent with section 5(b) of the Executive Order and reassign employees consistent with section 5(c) of the Executive Order.

3. Management's Right to Discipline

The Agency claims that the Proposal 3 directly interferes with the Agency's right to take disciplinary action because it would preclude the Agency from taking immediate disciplinary action against an employee, under 5 U.S.C. § 7513(b)(1), where there is reasonable cause to believe that the employee has committed a crime punishable by imprisonment. However, mere silence in the wording of the proposal with respect to the requirements in 5 U.S.C. § 7513(b)(1) does not render the proposal outside the duty to bargain unless the proposal is inconsistent with those requirements. 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, 134-35 (1987). See also National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106, 1140 (1991). In its response, the Union "acknowledges that [Proposal 3] does not override or otherwise contravene 5 U.S.C. § 7513(b)(1). Correct application of 5 U.S.C. § 7513(b)(