43:1442(117)NG - - NTEU and Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, DC - - 1992 FLRAdec NG - - v43 p1442



[ v43 p1442 ]
43:1442(117)NG
The decision of the Authority follows:


43 FLRA No. 117

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ALCOHOL, TOBACCO AND FIREARMS

WASHINGTON, D.C.

(Agency)

0-NG-1820

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 10, 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 by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of six proposals submitted during negotiations for a new collective bargaining agreement.(1)

Proposal 1 requires that, during an interview with an employee, the management representative conducting the interview will inform the employee of the right to union representation under certain prescribed circumstances. We find that the proposal constitutes a negotiable procedure.

Proposal 9 concerns providing office space and bargaining over office space changes. The proposal is negotiable as it is not inconsistent with General Services Administration (GSA) regulations and does not interfere with various management rights.

Proposal 10, regarding approval of sick leave when employees are incapacitated for duty, is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

Proposal 14 would require the Agency to grant a hardship transfer to employees affected by a transfer of function. The proposal is nonnegotiable because it directly and excessively interferes with the right to assign employees under section 7106(a)(2)(A) of the Statute.

Proposal 16 relates to performance awards. Sections A, B and C of the proposal, which mandate the issuance of awards at prescribed dollar amounts, are inconsistent with a Government-wide regulation and, therefore, are nonnegotiable under section 7117(a)(1) of the Statute. Sections D and E of the proposal will be dismissed because they are contingent on the negotiability of sections A, B and C. As sections A, B and C are nonnegotiable, sections D and E no longer present negotiability issues.

Proposal 17 allows an employee serving in the capacity of Union representative to request a reassignment of work. We find that the proposal constitutes a negotiable procedure.

II. Proposal 1

Employee Rights

If the interview is initiated by the employee or if the employee is being interviewed as a third-party witness, the inspector need not advise the employee of the right to Union representation before beginning the interview. However, at the time the inspector should reasonably believe that the information offered by the employee indicates that the conduct of the employee could reasonably result in discipline to the employee, the inspector must then advise the employee of the right to Union representation (as provided in (1) above). [Only the underlined portion of the proposal is in dispute].(2)

A. Positions of the Parties

1. The Agency

The Agency contends that Proposal 1 is nonnegotiable because it impermissibly shifts the statutory burden under section 7114(a)(2)(B), regarding requests for union representation, from the employee who is being examined to the management representative conducting the interview. The Agency also asserts that the proposal interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Specifically, the Agency argues that the proposal would circumvent section 7114(a)(2)(B) of the Statute. The Agency explains that Congress intended to provide Federal employees the same rights and protections set forth in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). The Agency argues, citing National Treasury Employees Union v. FLRA, 835 F.2d 1446, 1450 (D.C. Cir. 1987), that the right to union representation does not attach where an employee does not have a reasonable belief that an examination may result in disciplinary action. The Agency argues that as the proposal would require an Agency representative, rather than the affected employee, to have a reasonable belief of potential disciplinary action, the Union is attempting to gain more than Congress authorized in enacting section 7114(a)(2)(B).

The Agency also asserts that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute by requiring management to assign the specific duty of notifying the affected employee to the management representative conducting the interview. The Agency states that the Authority consistently has found nonnegotiable proposals requiring the assignment of specific duties to particular employees. In support, the Agency relies on American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172, 1183-84 (1987).

2. The Union

The Union argues that although the proposal "expands the representational rights of employees," it does not contravene section 7114(a)(2)(B) of the Statute. Response at 2. The Union further argues that in American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration & Naturalization Service, 8 FLRA 347, 356 (1982) (INS) (Proposal 5) rev'd as to other matters sub nom. United States Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), the Authority held that nothing in section 7114(a)(2)(B) of the Statute precludes a union "'from seeking to negotiate procedural protections for employees beyond those created by the Statute.'" Response at 2, quoting INS at 356. The Union argues that the cases cited by the Agency involve an interpretation of the Statute "and not the scope of negotiability in this arena." Response at 2-3.

B. Analysis and Conclusions

We find that the disputed portion of Proposal 1 is within the duty to bargain because it constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

Initially, we reject the Agency's contention that the proposal is nonnegotiable because it provides representational rights to employees that exceed those provided under section 7114(a)(2) of the Statute. The Authority has held that nothing in section 7114(a)(2) of the Statute prevents unions from negotiating contractual rights to union representation that exceed the rights set forth in that section. See American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1088-89 (1990), petition for review filed sub nom. U.S. Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 13, 1991). Thus, while it is true, as the Agency states, that the right to union representation set forth in section 7114(a)(2)(B) of the Statute includes, as one of its requisite components, a reasonable belief by an employee that an examination of that employee may lead to disciplinary action, Proposal 1 is an attempt to negotiate a contractual right that is not limited to the statutory right to representation.

The disputed language simply sets forth a procedure to be followed by an inspector during the course of an interview with an employee. The procedure consists of advising employees of their right to Union representation when certain operative conditions come into existence. Those conditions, as specified in the proposal, are met when the information provided by an employee during an interview is such that the inspector conducting the interview reasonably believes that the information reveals employee conduct that may lead to disciplinary action against the employee.

We also reject the Agency's allegation that by assigning a specific duty to a particular management representative the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. In American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 213-14 (1991) (Merchant Marine Academy), we observed that many procedures necessitate the assignment of work to satisfy their requirements. We found that barring negotiations over otherwise negotiable procedures simply because they involve the assignment of work to agency personnel would nullify the purpose and intent of section 7106(b)(2) of the Statute. We concluded, therefore, that "procedures entailing some assignment of work to employees do not necessarily directly interfere with the [a]gency's right to assign work." Id. at 214.

In this case we have determined that the disputed portion of Proposal 1 sets forth a procedure to be followed during an interview with an employee. Although the proposal requires the Agency to assign to the management representative conducting the interview the task of notifying the employee of the right to Union representation, we find, consistent with Merchant Marine Academy, that such a requirement does not directly interfere with the Agency's right to assign work. See National Federation of Federal Employees, Local 1384 and U.S. Department of Air Force, 3245th Air Base Group, Hanscom Air Force Base, Massachusetts, 41 FLRA 195, 206 (1991) (assignment of certain duties to agency personnel in connection with the agency's drug testing program held not to directly interfere with the agency's rights to assign employees and assign work).

Consequently, for the reasons set forth above, we conclude that the disputed portion of Proposal 1 is within the duty to bargain.

III. Proposal 9

Facilities and Services

A. Employees will each be guaranteed a minimum of 100 square feet of office or work space.

B. This requirement must be met if any renovations or office moves change the space employees work in.

C. This section does not preclude the requirement to bargain over all office and space changes, beyond the issue of minimum square footage.

A. Positions of the Parties

1. The Agency

The Agency asserts that sections A and B of the proposal are nonnegotiable because they conflict with 41 C.F.R. § 101-17.002, a Government-wide regulation. The Agency states that this regulation vests GSA with the responsibility for acquiring and assigning office space to Federal agencies and employees. The Agency argues that, because all of its offices are located in "government-owned space controlled by GSA[,]" it cannot guarantee office space to any of its employees, and can only request office space from GSA. Statement of Position at 14. Thus, the Agency asserts that the proposal is nonnegotiable because it prescribes actions the Agency is not authorized to take and because it contravenes GSA's regulatory authority. The Agency also maintains that the proposal contravenes the "specific space allocations" set forth in 41 C.F.R. § 101-17.304-1. Id. The Agency claims that GSA has established space allocations based upon an employee's grade level and that the proposal fails to take an individual employee's grade level into account. On this basis, the Agency argues that the proposal is contrary to a Government-wide regulation and, therefore, is nonnegotiable.

The Agency also contends that sections A and B of the proposal would interfere with various management rights in several ways. The Agency explains that if it remains in its present location and hires new employees, the Agency would have to reduce the space allocated to each employee, in violation of these sections of the proposal; it would have to eliminate space or personnel from other sections of the Agency in order to comply with the proposal; or it would be unable to hire additional personnel. The Agency asserts that, given these possible outcomes, the proposal would directly interfere with management's right to hire, assign, direct and layoff employees under section 7106(a)(2)(A) of the Statute,(3) and with management's right to determine the numbers, types, and grades of employees under section 7106(b)(1) of the Statute. The Agency maintains that the Authority's decision in National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398 (1990) (NTEU), finding negotiable a proposal setting forth minimum square footage, did not address the arguments raised here and, therefore, is not controlling.

With regard to section C of the proposal, the Agency asserts that to the extent it requires the Agency to bargain over the issue of minimum square footage, it is nonnegotiable for the same reasons that sections A and B are nonnegotiable. Additionally, the Agency argues that section C conflicts with law because it would require the Agency to bargain over insignificant changes or changes that do not affect working conditions of unit employees, in contravention of the court's holding in Internal Revenue Service v. Federal Labor Relations Authority, 717 F.2d 1174, 1177 (D.C. Cir. 1983) (IRS v. FLRA). In this regard, the Agency claims that in IRS v. FLRA, which addressed negotiations over office space, the court held that the obligation to bargain exists only with regard to the impact and implementation of "decisions which have more than a de minimum [sic] effect on bargaining unit employees." Statement of Position at 16.

2. The Union

The Union argues that the Agency's contention that the proposal conflicts with 41 C.F.R. §§ 101-17.002 and 101-17.304-1 is groundless. The Union states that GSA's oversight and acquisition authority under the cited regulations do not preclude the Agency from bargaining "within the total square footage limitations imposed by GSA." Response at 4. The Union asserts that it would only have to be informed of the Agency's "boundaries of its authority" and the parties could "bargain within them." Id. Moreover, the Union claims that if the 100 square foot figure does not fit within the GSA constraints, the Agency could propose another figure. Thus, the Union contends that the issue raised by the Agency regarding this proposal is not a negotiability claim but is one more appropriately resolved by the Federal Service Impasses Panel.

The Union also argues that the GSA regulations cited by the Agency do not "allow GSA to micro-manage space allocation or floor plans for agencies." Id. Specifically, the Union asserts that 41 C.F.R. § 101-17.304-1 establishes only a general formula for agencies to use in examining their office space requirements. The Union argues that this section of GSA's regulations expressly states that the space formula suggested "should result in sufficient space, but that agencies have discretion to lay out offices as they see fit." Id. Moreover, the Union asserts that GSA has also established "an all employee average figure of 135 square feet per person, which is well above the figure proposed by the Union in this case." Id. Consequently, the Union argues that the proposal does not contravene GSA regulations.

The Union also argues that the Agency's allegation that the proposal interferes with its right to hire is purely speculative and lacks merit. The Union asserts that if the Agency hires new employees, it could reopen the agreement for negotiations, thereby "foreclos[ing] contract violations and/or excessive interference with its right to hire." Id. at 5. The Union also states that negotiations over square footage allocations for employees is governed by a long line of Authority precedent, including NTEU.

Finally, the Union asserts that section C of the proposal was never intended to force the Agency to bargain "beyond the scope of its legal obligation." Id. at 6. Consequently, the Union argues that this section of the proposal is fully negotiable.

B. Analysis and Conclusions

We find that Proposal 9 is within the Agency's duty to bargain because it is not inconsistent with law or GSA regulations and because it does not directly interfere with the exercise of management's rights.

1. The Proposal Is Not Inconsistent with Law or GSA Regulations

Section A of the proposal requires the Agency to guarantee each employee a minimum of 100 square feet of office space. Section B further requires that this minimum space figure be met if there are any renovations of the Agency's offices or any office moves. The Agency claims that these sections of the proposal are inconsistent with GSA regulations for two reasons: (1) GSA controls the acquisition and assignment of office space and the Agency cannot guarantee the square footage per employee required by the proposal; and (2) the regulations allow a particular amount of space based on employees' grade levels and the proposal fails to take grade levels into account. The Agency also argues that section C is inconsistent with GSA regulations to the extent that that section requires negotiations over minimum square footage, and is inconsistent with law, to the extent it requires bargaining over other office and space changes. We reject the Agency's assertions.

First, we reject the Agency's contention that the proposal is nonnegotiable because GSA controls the acquisition and assignment of office space. It is well established that an agency is obligated to bargain to the extent it has discretion to bargain on otherwise negotiable matters. See American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477, et al. and Library of Congress, Washington, D.C., 7 FLRA 578 (1982), enf'd sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983) (Library of Congress). In Library of Congress, the court affirmed the Authority's findings that the agency was obligated to bargain over changes in office design and office environment even if the bargaining obligation was limited to making recommendations to the entity that was responsible for effecting the changes sought by the proposals. We reach the same conclusion here. There is nothing to prevent the Agency from requesting GSA to acquire and/or assign a sufficient amount of space to meet the proposal's specifications. In fact, the Agency concedes that it has the authority to request office space from GSA. To the extent the amount of space available to employees is controlled by GSA, therefore, the proposal merely requires the Agency to request that GSA furnish a sufficient amount of space.

We also reject the Agency's contention that 41 C.F.R. § 101-17.304-1 controls the allocation of square footage based on employee grade levels.(4) The pertinent GSA regulations do not prescribe either a mandatory or maximum square footage figure per grade level. Instead, 41 C.F.R. § 101-17.303(b) states that the space allowances listed in 41 C.F.R. § 101-17.304-1 "shall not necessarily be used as criteria for assigning space to individuals. Rather, they should be used to estimate that portion of the total office space that is required for work stations." Thus, the express language of the regulation provides that the square footage figures for each grade level are intended as estimates, and not as mandatory amounts. Consequently, as there is no requirement that space allocations match employees' grade levels in prescribed amounts, the proposal is not inconsistent with the cited GSA regulation. Moreover, we note that GSA has established "an average adjusted utilization rate of 135 square feet or less per person," with certain exceptions not relevant here. See 56 Fed. Reg. 42164 (1991). There is no evidence in the record that a particular utilization rate exists at the Agency and there is no basis on which to conclude that bargaining over the proposed amount of square footage per person, which amount falls within the utilization rate established by GSA, is proscribed.

Finally, we reject the Agency's assertion that section C is contrary to law inasmuch as it requires bargaining over all office and space changes. The Agency claims that it would be obligated to negotiate without regard to whether such changes are insignificant or whether they involve working conditions of unit employees in contravention of the court's decision in IRS v. FLRA. As explained by the Union, section C is designed to require bargaining consistent with the Agency's bargaining obligations. As there is no basis on which to conclude that the Agency would be compelled to negotiate in a manner inconsistent with its bargaining obligations under the Statute, we find that section C is not contrary to law, as alleged.

2. The Proposal Does Not Interfere with Management's Rights under Section 7106(a)(2)(A) and (b)(1) of the Statute

The Agency claims that sections A and B of the proposal would interfere with its rights to hire, assign, direct, and layoff employees under section 7106(a)(2)(A) of the Statute and with the right to determine the numbers, types, and grades of employees under section 7106(b)(1) of the Statute. The Agency maintains that if it agrees to provide 100 square feet of space per employee, and it remains in its present office location, future changes in personnel will cause the Agency to take one of the following actions: violate the terms of the agreement by reducing space to accommodate new hires; adhere to the agreement but eliminate other space and personnel from the Agency; or be unable to hire additional personnel.

Sections A and B of the proposal do not specifically address the management rights with which the proposal is alleged to be inconsistent. Rather, these sections are concerned with providing a certain amount of space per employee and ensuring the maintenance of that space following office renovations or relocations. As we have stated often, proposals relating to the office environment are "at the very heart of the traditional meaning of 'conditions of employment.'" See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 36 FLRA 655, 668 (1990), quoting Library of Congress, 699 F.2d at 1286. See also, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Ft. Lauderdale, Florida, 41 FLRA 1283, 1289 (1991) (proposal relating to employee choice of seating location); NTEU, 35 FLRA at 413 (proposal providing for 64 feet of contiguous work space). In our view, the Agency's arguments relate to the merits of the proposal, that is, to the advisability of providing 100 square feet of space per employee. Arguments that relate to the merits of a proposal, rather than to the proposal's asserted inconsistency with law, rule, or regulation, are not appropriate for resolution in a negotiability proceeding in which the Authority simply decides whether a proposal is negotiable. As we stated in NTEU, "a finding of negotiability means only that a proposal is within the duty to bargain and could legally be implemented, not that the proposal must, or ought to, be implemented." 35 FLRA at 414. The parties are free to reject or modify proposals as part of the bargaining process and, if unable to agree, to present the disputed issue to the Federal Service Impasses Panel. We simply find here that the proposal is within the duty to bargain. See also American Federation of Government Employees, Local 1698 and U.S. Department of the Navy, Naval Aviation Supply Office, Philadelphia, Pennsylvania, 38 FLRA 1016, 1024-26 (1990) (Authority rejected arguments concerning purported potential effects on exercise of management rights of otherwise negotiable proposal, finding that choices of future action were left to the agency and stating that competing agency and employee interests are best resolved in the collective bargaining process).

IV. Proposal 10

Sick Leave

Approval of sick leave will be granted to employees when they are incapacitated for the performance of their duties. Notice of unanticipated sick leave not requested in advance will be given by the employees to their supervisors as soon as possible and in no event later than one (1) hour after normal time of reporting for work on the first day of absence. If the degree of illness or injury prohibits compliance with the one hour limit, employees will report their absences as soon as possible. [Only the underlined portion of the proposal is in dispute.](5)

A. Positions of the Parties

1. The Agency

The Agency asserts that the disputed portion of the proposal would require it to approve sick leave for an employee incapacitated for duty. The Agency notes, however, that the approval of sick leave for employees is a matter left to management's discretion and is part of management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that Authority precedent clearly establishes that the right to assign work includes the right to assign continuing duties, to make specific work assignments to employees, to determine when work assignments will occur and to determine when the work which has been assigned will be performed. The Agency states that by requiring it to grant an employee's request for sick leave, regardless of the need for that employee's services, the proposal would remove management's discretion to approve sick leave, thereby directly interfering with management's right to assign work under section 7106(a)(2)(B) of the Statute.

2. The Union

The Union contends that the proposal restates the standards set forth in Federal Personnel Manual (FPM), Chapter 630, subchapter 4, regarding the use of sick leave. The Union further argues that the proposal is consistent with International Association of Machinists and Aerospace Workers Union and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 715 (1988) (Bureau of Engraving and Printing), in which the Authority described the circumstances under which sick leave requests can be denied. Finally, the Union states that the proposal does not interfere with management's right to assign work "because management has no right to assign work under these circumstances." Response at 7.

B. Analysis and Conclusions

We find that the disputed portion of Proposal 10 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

In National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 677-82 (1991) (VAMC), we discussed the legal and regulatory requirements pertaining to sick leave in the context of a proposal that outlined the conditions under which the agency would grant sick leave to employees. Included among the conditions described in the proposal were occasions when employees were incapacitated for performance of their duties under a variety of circumstances. We found that the proposal was consistent with the applicable authorities because the proposal did not require the agency to take any actions that were inconsistent with the pertinent regulations. We then determined that the proposal directly interfered with management's right to assign work by requiring the agency to grant leave without regard to the need for the employee's services during the period of the leave request. Finally, we found that the proposal constituted a negotiable appropriate arrangement because it did not excessively interfere with the exercise of the right to assign work.

It is unnecessary to decide whether the disputed portion of Proposal 10 directly interferes with management's right to assign work because even if such interference exists, it is not excessive. Proposal 10 is to the same effect as the proposal in VAMC and would provide the same benefits to employees. Additionally, as in VAMC, the benefits would outweigh whatever effects there might be on management's right to assign work. Although the Union did not specifically assert in this case that Proposal 10 is intended to be an appropriate arrangement, we conclude that our statutory obligations require that we apply the determination reached in VAMC to this case. To do otherwise would lead to anomalous and conflicting results. See American Federation of Government Employees, AFL-CIO, Local 3457 and U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana, 39 FLRA 1276 (1991), petition for review filed sub nom. U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, No. 91-1218 (D.C. Cir. May 13, 1991). Consequently, we conclude that Proposal 10 is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. In reaching this result, it is unnecessary to address the Union's reliance on Bureau of Engraving and Printing.

V. Proposal 14

Reassignments

Employees whose jobs are moved because of a transfer of function will be given the option to move with their jobs. If they choose not to transfer, they will be reassigned to any vacant position they apply for and qualify for in their own commuting area. They will also be granted a hardship transfer to another office if they wish to retain their position and the job exists at another site. [Only the underlined portion of the proposal is in dispute].

A. Positions of the Parties

1. The Agency

The Agency contends that the disputed portion of this proposal directly interferes with its rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency further asserts that the disputed portion of this proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

Specifically, the Agency argues that the proposal here is similar in effect to Proposal 4 in American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870 (1986) (FDIC), in which the Authority found nonnegotiable a proposal that would have provided transferred employees the option of a temporary reassignment prior to a transfer or a permanent reassignment to a different office. The Agency asserts that the proposal goes beyond that in FDIC by allowing employees to determine where they will transfer. Thus, the Agency argues that the disputed portion of the proposal would impermissibly permit employees to substitute their judgment for that of management in assigning employees and assigning work. In further support of its contention that the proposal interferes with the right to assign work, the Agency asserts that, "[o]ften, where an employee is assigned will determine the kinds of assignments an employee will receive." Statement of Position at 27.

The Agency also argues that the proposal does not constitute a negotiable appropriate arrangement because it excessively interferes with management's rights. The Agency maintains that the proposal would give an employee "the absolute right to determine where they work and consequently, the kind of work they will do." Id. at 28. In the Agency's view, "such arrangements are excessive when weighed against management's statutory right to assign work where a vacancy exists, whether the employee seeking to move is the best qualified for the vacancy." Id. The Agency asserts that under the portion of the proposal that is not in dispute, arrangements already have been negotiated to ameliorate the adverse affects of a transfer of function. The Agency notes that employees whose positions are subject to a transfer of function have the option of transferring with the positions to new competitive areas or of being reassigned to vacant positions for which they qualify in their commuting area.

2. The Union

The Union states that the proposal "requires that employees who lose a job because of a transfer of function be given a hardship transfer to the same job at another site if they wish to retain the position but not move to the office which is gaining the slot." Petition for Review at 10-11. The Union further argues that the proposal is intended to constitute an appropriate arrangement under section 7106(b)(3) of the Statute for employees who are adversely affected by management's decision to conduct a transfer of function. In this regard, the Union asserts that there is pertinent Authority precedent which holds that employees may be adversely affected by a transfer of function and that the placement of employees in positions for which they are qualified, when they are involuntarily deprived of their jobs due to a reduction in force or a transfer of function, constitutes an appropriate arrangement. Moreover, the Union maintains that there is also Authority precedent which holds that proposals defining the location at which qualified employees perform work do not violate the right to assign work.

In support of its assertion that the proposal here constitutes an appropriate arrangement, the Union argues that the impact of the proposal on management's "right to assign is far outweighed by the significant negative impact of a transfer of function." Response at 9. In this regard, the Union asserts that a transfer of function "could render an employee out of work." Id. Moreover, the Union asserts that, while the possibility of another position in the employee's home office may exist or the employee could move with his or her old position to its new location, both possibilities impose significant hardships on the employee. The Union argues that because moving to another office always results in "family upheaval and financial stress[,]" some of the adverse impact can be mitigated by allowing the employee to choose where he or she will relocate. Id.

On the other hand, the Union argues that the burden imposed on management is minimal. The Union asserts that, under the proposal, the Agency would be able "to move a qualified employee to an open position." Id. at 10. The Union also states that no additional costs would be involved because the Agency would have to pay relocation costs for an employee who chooses to move with the transferred job in any event. Finally, the Union disputes the Agency's contention that, because the employee's choice of location determines the kind of assignments he or she receives, the proposal excessively interferes with management's rights.

B. Analysis and Conclusions

We find that the disputed portion of Proposal 14 is nonnegotiable because it directly and excessively interferes with the right to assign employees under section 7106(a)(2)(A) of the Statute.

A transfer of function is defined as the movement of the work from one or more employees from one competitive area to another. See 5 C.F.R. § 351.301. In National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 582-83 (1988) (Proposal 38.2, Section B) (NRC), enf'd in part and rev'd in part as to other matters sub nom. U.S. Nuclear Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir. 1990), the Authority found that a proposal, which would have utilized retention standing as the basis for determining which employees would be subject to a transfer of function, directly interfered with the right to assign employees. We reach the same conclusion here.

The disputed portion of Proposal 14 would require the Agency, at the election of an employee affected by a transfer of function, to place that employee into the same position at a location at which such a position exists. Although we have stated that the right to assign employees does not involve the location at which employees will be assigned, it is well established that the right to assign employees involves determinations as to the particular position to which an employee will be assigned. See, for example, Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 834 (1991). The disputed portion of the proposal directly interferes with management's right to assign employees because it would require the Agency to place employees into positions at the election of the employees, without regard to whether the Agency intends to fill those positions. See, for example, American Federation of Government Employees, AFL-CIO, Local 446 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, Asheville, North Carolina, 43 FLRA No. 69, slip op. at 60-62 (1991) (proposal that employees be returned to duty after successful completion of rehabilitation found to directly interfere with the right to assign employees, in part because it required the agency to place employees without regard to whether positions are available); National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 850-52 (1990) (provision establishing procedure for transferring employees into vacant positions following realignment of work force and reduction in force found not to interfere with the right to assign employees because the agency retained the authority to determine whether to fill the vacancies). Therefore, we conclude that the disputed portion of the proposal directly interferes with the Agency's right to assign employees.

Next, we address whether the proposal constitutes a negotiable appropriate arrangement, as claimed by the Union. In determining whether a proposal constitutes an appropriate arrangement, the Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. If the proposal is determined to be an arrangement, the Authority then determines whether the arrangement is appropriate, or whether it is inappropriate because it excessively interferes with management's right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army National Guard).

The proposal here clearly is designed to be an arrangement for employees who are affected by a transfer of function and the exercise of management's right to assign employees. After balancing the competing interests of the employees and the Agency, however, we conclude that the disputed portion of the proposal would excessively interfere with the exercise of management's right to assign employees.

As noted earlier, the proposal would require the Agency to place employees, at their election, into positions without regard to whether the Agency intends to fill those positions. If, for example, the Agency decided that it could eliminate certain vacant positions without jeopardizing its mission, the proposal would prevent the Agency from doing so by allowing employees to move into those vacant positions. Therefore, the proposal would seriously impair the Agency's ability to manage its workforce and determine the facilities at which there is a need for Agency personnel. In this respect, the proposal is distinguishable from proposals that would preserve an agency's ability to decide whether to fill positions by reassigning employees. For example, in Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 794-96 (1987) aff'd mem. as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988), the Authority found that a proposal that would require the agency to make a maximum effort to place employees affected by a transfer of function, among other things, did not prevent the agency from determining whether employees were qualified for vacant positions and whether to fill the positions.

While we recognize that a transfer of function has serious repercussions for employees whose positions are affected, we nonetheless find that the disputed portion of the proposal constitutes a significant intrusion on the exercise of management's right to assign employees that is not outweighed by the benefits inuring to employees under the proposal. We also note that employees are not left without options if a transfer of function were to occur. The other portions of Proposal 14, which were not declared nonnegotiable, offer affected employees the choice of transferring with their jobs or being reassigned to a vacant position for which they qualify in their commuting area.

Based on the foregoing, we conclude that the disputed portion of Proposal 14 directly and excessively interferes with the Agency's right to assign employees under section 7106(a)(2)(A) of the Statute. In light of this conclusion, it is unnecessary to address the Agency's additional contention.

VI. Proposal 16 (6)

Awards

(Section 3)

A. All employees averaging Fully Successful in their annual appraisals shall get a $250.00 award, at a minimum.

B. All employees averaging Exceeds Fully Successful in their annual appraisals shall get a $500.00 award, at a minimum.

C. All employees averaging Outstanding in their annual appraisals shall get a $1,000.00 award, at a minimum.

D. If any employee receives a reduction in his/her annual appraisal as a result of conformance with this section, he/she will be eligible to receive the withheld awards as a remedy, as well as having the performance appraisal raised. If any pay was lost due to this incorrectly lowered appraisal, the Employer will be liable for a backpay action.

E. The awards are subject to availability of funds in the Bureau's awards budget.

A. Positions of the Parties

1. The Agency

The Agency argues that the proposal is nonnegotiable because it violates Government-wide regulations relating to performance awards. Specifically, the Agency asserts that by providing an award for a fully successful rating, the proposal violates 5 C.F.R. § 430.503(a), which is designed to motivate employees by recognizing those who "'attain high levels of performance.'" Statement of Position at 32. The Agency argues that a fully successful rating does not rise to the high level of performance contemplated by this regulation and, therefore, rewarding an employee for being fully successful is in conflict with the regulation.

The Agency further asserts that, notwithstanding the addition of section E to the proposal, bargaining unit members would have priority in receiving awards. The Agency explains that when the awards budget is established at the beginning of the fiscal year, the Agency would have to estimate how much money will have to be paid out to bargaining unit employees before awards can be approved for employees outside the bargaining unit. Consequently, the Agency argues that the effect of the proposal would be to require it to base its awards not on an employee's rating of record, as required under 5 C.F.R. § 430.503(b), but on the non-merit factor of whether there is money left over for non-bargaining unit employees "after bargaining unit award funds are set aside[.]" Statement of Position at 33. The Agency further argues that the proposal would violate the merit principles found in the applicable regulations because bargaining unit employees with fully successful ratings would receive awards while non-bargaining unit employees with higher ratings would not.

Finally, the Agency contends that the proposal conflicts with 5 C.F.R. § 430.503(c)(1), which requires that performance award determinations be reviewed by an Agency official at a higher level than the official who made the initial decision to grant an award. In support, the Agency cites Department of the Air Force, Langley Air Force Base v. FLRA, 878 F.2d 1430 (4th Cir. 1989) (per curiam) (unpublished order) (Langley). The Agency asserts that under the proposal, there would be no meaningful review of award determinations and that the requirement set forth in the regulation would be "merely a paper exercise[.]" Statement of Position at 33.

2. The Union

The Union argues that the Agency is wrong "on all counts." Response at 12. The Union asserts that there is Authority and court precedent that "clearly establishe[s] the negotiability of mandatory incentive awards proposals . . . ." Id. In this regard, the Union argues that in National Treasury Employees Union, Chapter 245 and Department of Commerce, Patent and Trademark Office, 30 FLRA 1219 (1988), the Authority held that a proposal mandating monetary awards for employees receiving "fully successful," "commendable," and "outstanding" ratings was negotiable. Consequently, the Union maintains that the proposal in this case is also negotiable. The Union further contends that providing motivation to employees who are rated as fully satisfactory serves the regulatory policy of recognizing and rewarding those employees who attain high levels of performance. The Union also disputes the Agency's argument that the proposal would affect awards for non-bargaining unit employees. The Union states that there is Authority precedent holding that a proposal "requiring awards for bargaining unit employees [does] not directly affect non-unit employees[,]" and that the Agency is free to determine to establish a separate awards budget for non-bargaining unit employees. Response at 13.

The Union further argues that under its proposal, management is not precluded from a "budget review of awards." Id. at 14. In this regard, the Union asserts that the Agency "could review the awards and decide to reallocate funds to its awards budget." Id. Moreover, the Union states that if there were no funds available in the Agency's budget to pay the awards, the Agency "could default on paying an award[,]" and that the "delivery of awards is contingent on availability of funds." Id. Finally, the Union argues that Langley is not controlling.

B. Analysis and Conclusions

We conclude that Proposal 16 is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with a Government-wide regulation governing performance awards.

Sections A, B and C of the proposal would require the Agency to grant awards in prescribed amounts, based on employees' performance appraisals. Among other things, the Agency argues that the proposal is inconsistent with the requirement of 5 C.F.R. § 430.503(c)(1) that performance award determinations be reviewed by an Agency official at a higher level than the official that made the decision to grant the award. We agree with the Agency but note that our determination is based on 5 C.F.R. § 430.504(d), a revised regulation issued by the Office of Personnel Management (OPM) during the pendency of this case, which replaces section 430.503(c).(7) 56 Fed. Reg. 20331, 20332 (1991).

Section 430.504(d) recently was addressed by the Authority in a case involving a similar proposal mandating the issuance of performance awards. National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 1349, 1361 (1991) (NTEU), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 91-1503 (D.C. Cir. Oct. 15, 1991). In our decision in NTEU, we first noted prior Authority decisions finding that performance award proposals that mandated the granting of awards were inconsistent with 5 C.F.R. § 430.503(c) because they prevented agencies from reviewing and approving such awards as was required under the regulation. We noted that the "'expressed authority to review and approve inherently encompasses the authority to review and disapprove.'" 41 FLRA at 1360, quoting Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA 938, 950 (1990) (Norfolk Naval Shipyard).

We then addressed the regulatory revisions to 5 C.F.R. part 430 and found that section 430.504(d) contains a requirement for review and approval of decisions to grant awards that is similar to the requirement previously contained in section 430.503(c). As such, we found that the same rationale applied in Norfolk Naval Shipyard to proposals that mandated the granting of awards in the context of section 430.503(c) applied equally to a provision mandating awards under section 430.504(d). Consequently, we concluded that a provision that mandates the granting of awards without regard to the review and approval process set forth in section 430.504(d), and which would restrict the agency's ability to disapprove awards, was inconsistent with section 430.504(d). Noting our prior determination that the regulations promulgated by OPM at 5 C.F.R. part 430 are Government-wide regulations, we concluded that the provision was outside the duty to bargain under section 7117 of the Statute.

As noted, sections A, B and C of Proposal 16 would require the Agency to grant awards in prescribed amounts based on employees' performance appraisals. As these sections would mandate the granting of awards, and would determine the amount of the awards, the sections are inconsistent with 5 C.F.R. § 430.504(d) and are nonnegotiable. See also, National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA 47 (1991) (proposals that would effectively preempt authority of reviewing official with respect to determinations as to the amount of an award, by prescribing a range within which the amount must fall, are inconsistent with section 430.504(d)).

We reject the Union's assertions that the proposal is negotiable because the Agency would not be precluded from reviewing awards for budgetary reasons and because the payment of awards is contingent on the availability of funds. Previously, we have found that the review process contemplated by 5 C.F.R. § 430.503(c)(1), which allowed for the disapproval of awards, was not limited to disapproval only for budgetary reasons. See National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, Arlington, Virginia, 40 FLRA 3 (1991), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 91-1262 (D.C. Cir. May 30, 1991). We noted that the disapproval of awards could be based on other reasons, such as efforts to ensure conformity with an agency's overall performance awards program. Id. at 9. We believe that the same considerations apply to section 430.504(d). Therefore, even if the Agency's right to disapprove awards based on budgetary reasons was preserved, the inability to disapprove awards on any other basis would be inconsistent with section 430.504(d).

Having found that sections A, B and C of the proposal are inconsistent with 5 C.F.R. § 430.504(d), we conclude that sections D and E do not present issues that are appropriate for resolution in this preceding. Sections D and E relate to and are contingent on the negotiability of sections A, B and C. Thus, section D requires certain remedial actions to be taken if an appraisal is lowered to conform with the other sections of the proposal, and section E provides that the awards are subject to the availability of funds. As sections D and E flow from the sections of the proposal that are inconsistent with a Government-wide regulation, sections D and E are no longer viable proposals. Consequently, we will dismiss them.

In sum, we conclude that sections A, B and C of Proposal 16 are nonnegotiable because they are inconsistent with a Government-wide regulation. Sections D and E of the proposal will be dismissed because they do not present issues that can be resolved in this proceeding. In view of these conclusions, it is unnecessary to address the Agency's additional contentions that the proposal is inconsistent with 5 C.F.R. §§ 430.503(a) and 430.503(b).

VII. Proposal 17 (8)

Assignment of Work

Section 4

A. 1. Upon request of a steward or chapter officer entitled to the use of time under Article 9 (sic) of this Agreement, the Employer will reassign work assigned to the steward or officer to other qualified employees if the employer determines that the work cannot be timely performed due to the steward's or officer's representational duties.

2. This request must be accompanied by a list from the steward or officer of the work requested to be reassigned.

A. Positions of the Parties

1. The Agency

The Agency asserts that the proposal is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Specifically, the Agency argues that the proposal would permit an employee, who is a Union officer, to determine whether he or she can or will complete assigned work and also which assignments he or she will complete. The Agency states that, in accordance with the express wording of the proposal, the Agency would be required to reassign work at the request of the Union steward or officer, thereby directly interfering with management's right to assign work.

2. The Union

The Union asserts that the Agency has mischaracterized the effect of the proposal. Rather than giving employees the discretion to determine whether they can complete assignments and which assignments to complete, the Union states that the proposal "requires management to determine whether work must be reassigned due to the representational activities of the employee." Response at 15-16. The Union adds that while the proposal requires the Union steward or officer to give a list of his or her assignments to management, the list constitutes a request, and the Agency "has the ultimate authority to make a decision." Id. at 16.

The Union further argues that the proposal is an accommodation that balances union activities under sections 7114 and 7131 of the Statute with management's rights under section 7106(a)(2)(B) of the Statute. The Union contends that the grant of official time for representational purposes would be rendered meaningless if there was no reduction in a Union representative's workload, and that decisions of the Authority and the courts have recognized this fact. The Union also argues that an employee's right under section 7102 of the Statute to act for a labor organization would be undermined if management was permitted to determine unilaterally when and if a Union representative could be released from his or her assigned work in order to participate in representational matters. The Union adds that the effect of such a management action could lead to employer domination and control of the Union in violation of section 7116(a)(3) of the Statute, and to charges that the Union has violated its duty to represent bargaining unit employees. Consequently, the Union asserts that the proposal is a "vehicle for implementing the statutory rights accorded to union representatives." Id. at 17.

Finally, the Union claims that Proposal 17 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. In this regard, the Union states that the proposal is intended as an appropriate arrangement that balances management's rights under section 7106 with the Union's rights under sections 7114 and 7131 of the Statute. The Union maintains that the impact on unit employees and the Union of management's refusal to release the available Union official for representational purposes is substantial because unit employees would be denied their right to full and adequate union representation while the Union could be charged with a violation of its duty of fair representation. Moreover, the Union contends that the employees have no control over the circumstances leading to such adverse impact and that it is the Agency that controls both when a Union representative is relieved of his or her duties and when actions are taken that cause an aggrieved employee to require the services of a Union representative. The Union also claims that the Agency is not precluded from assigning work as other employees may be able to perform the work, and the Agency retains the right to make a final determination on any work reassignment based on a "thorough review of the Union representative's representational obligations." Id. at 19. Moreover, the Union asserts that the Agency has not demonstrated how the proposal interferes with the e