44:1145(93)NG - - United Power Trades Organization and Army Corps of Engineers, Walla Walla, WA - - 1992 FLRAdec NG - - v44 p1145



[ v44 p1145 ]
44:1145(93)NG
The decision of the Authority follows:


44 FLRA No. 93

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED POWER TRADES ORGANIZATION

(Union)

and

U.S. DEPARTMENT OF THE ARMY

CORPS OF ENGINEERS

WALLA WALLA, WASHINGTON

(Agency)

0-NG-1951

DECISION AND ORDER ON NEGOTIABILITY ISSUES

May 5, 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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of 12 proposals.(1)

Proposal 1 would require the Agency to delete or obliterate from an employee's file all records of counseling sessions or oral admonishments no later than 180 days after the date of counseling, except in limited circumstances. We conclude that Proposal 1 is nonnegotiable because it directly and excessively interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute.

Proposal 2 requires that the Agency apply performance standards fairly, equitably, objectively, and uniformly for like duties in like circumstances and that performance standards be reasonably related to the duties set forth in position descriptions. We conclude that Proposal 2 is negotiable.

Proposal 3 requires that performance standards be objective to the maximum extent feasible and provide incentives for superior performance. We find that Proposal 3 is negotiable.

Proposals 5, 6, and 7 incorporate in the parties' collective bargaining agreement current wage schedules set by the Department of Defense Wage Fixing Authority so that the schedules may not be changed during the life of the agreement except as required by law or Government-wide regulation. We find that the Agency has failed to establish that Proposals 5, 6, and 7 concern matters that are specifically provided for by or are inconsistent with law. Accordingly, we conclude that the proposals are negotiable.

Proposal 8 permits temporary employees to contest disciplinary terminations through the negotiated grievance procedure. We conclude that Proposal 8 is inconsistent with law and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

Proposal 9 provides that, when a grievance concerns the enforcement of rights provided employees by statute, the time limit for filing that grievance shall be the time limit established by statute for filing a claim under the appropriate legal procedures, if that time limit is longer than the contractual time limit for filing a grievance. We find that the Agency has failed to establish that Proposal 9 is inconsistent with the Statute. We conclude, therefore, that Proposal 9 is negotiable.

The first sentence of Proposal 10 provides that if an employee complies with the last of conflicting supervisory orders, the employee will not be subject to disciplinary or adverse action for failing to carry out the earlier orders. We conclude that the first sentence of Proposal 10 excessively interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and, therefore, is nonnegotiable. The second sentence of Proposal 10 provides that an employee will not be subject to disciplinary or adverse action for refusing to obey an unlawful order. We find that the second sentence of Proposal 10 is negotiable.

Proposal 11 requires the Agency, at or about the time that it issues a proposed disciplinary or adverse action letter, to inform the Union that a letter has been issued and the name of the employee. We find that the disclosure required under Proposal 11 is inconsistent with the Privacy Act, 5 U.S.C. § 552a. Accordingly, we conclude that Proposal 11 is nonnegotiable.

Proposal 12 requires the Agency, when filling a position, to refer to the selecting official a list of best qualified candidates that contains only bargaining unit employees and precludes the Agency from referring additional candidates to the selecting official for 10 days after the initial list of bargaining unit employees is provided. We find that Proposal 12 is negotiable.

Proposal 15 requires the Agency to suspend the filling of bargaining unit vacancies in the competitive area of employees who would be affected by a reduction in force (RIF), from the date of the initial RIF notice to employees to the effective date of the RIF. We conclude that Proposal 15 is negotiable.

II. Proposal 1

Article 5, Section 5.6. Counseling sessions and oral admonishments entered on the 7-B file will be deleted or obliterated from the file no later than one hundred and eighty (180) days after the date of the counseling unless reversed earlier through a grievance decision, or unless made the basis for additional entries of discipline within that time.

A. Positions of the Parties

1. Agency

The Agency states that management's "philosophy of discipline involves the imposition of progressive penalties in dealing with employee misconduct." Statement at 1. The Agency interprets Proposal 1 as prohibiting the Agency from considering counseling sessions or oral admonishments that are older than 180 days in determining appropriate penalties. According to the Agency, "[b]y establishing a statute of limitation[s] for counseling or oral admonishments, employees would be able to continuously engage in behavior every 181st day that, as a first occurrence might warrant an oral admonishment but, occurring frequently, would warrant stricter discipline." Id. at 1-2. The Agency asserts that management "would be unable to consider, on the 181st day after the initial oral admonishment, that an employee had engaged in similar conduct, thus warranting more severe discipline." Id. at 2.

The Agency argues that Proposal 1 is similar to Provision 9d in American Federation of Government Employees, AFL-CIO, Local 3732 and Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 223-24 (1991) and the proposal in American Federation of State, County and Municipal Employees, Local 2478 and U.S. Commission on Civil Rights, 24 FLRA 87 (1986), both of which precluded the use of records of employee discipline after a certain time period. According to the Agency, the Authority determined that those proposals were nonnegotiable because they directly interfered with management's right to discipline under section 7106(a)(2)(A) of the Statute.

The Agency also argues that Proposal 1 is distinguishable from the proposal found negotiable in American Federation of Government Employees, AFL-CIO, Local 1426 and Department of the Army, Fort Sheridan, Illinois, 34 FLRA 716 (1990), which only required the agency to "consider the freshness of a prior disciplinary action when determining an appropriate penalty for a current offense." Id. (emphasis in original). The Agency contends that, under Proposal 1, "management is totally prohibited from considering the entire disciplinary action, not just the freshness." Id. (emphasis in original). The Agency concludes that Proposal 1 "completely abrogates management's reserved right to discipline [under section 7106(a)(2)(A) of the Statute] and should be found nonnegotiable." Id. at 2.

2. Union

The Union contends that Proposal 1 does not prevent management from taking disciplinary action. According to the Union, "[t]he proposal deals only with the nature of prior actions which can be considered by the employer in assessing the particular penalty to be imposed." Response at 1. The Union states that "[t]he theory behind [Proposal 1] is that counselings and admonishments are by definition minor by nature and should not be used to enhance a penalty against an employee if more than six months have passed." Id. at 1-2. The Union maintains that the Agency agrees with its theory because the Agency's regulations already provide for the removal of counselings and admonishments under the circumstances described in Proposal 1 "not later than one year after the date of entry." Id. at 1. The Union asserts that the "proposal simply shortens the period of reckoning to six months[.]" Id. The Union states that "the proposal does not prevent reliance on past disciplinary actions having any degree of seriousness, such as [a] reprimand or suspension." Id. The Union asserts that Proposal 1 does not excessively interfere with the scheme already adopted by the Agency and that "[u]nder the circumstances, [Proposal 1] is an appropriate arrangement for employees." Id. at 2.

B. Analysis and Conclusions

We conclude that Proposal 1 is nonnegotiable because it directly and excessively interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute.

Proposal 1 is similar in effect to the proposal that we found nonnegotiable in International Association of Machinists and Aerospace Workers, District Lodge 110, Local Lodges 1859, 2296, 2297, 2316 and U.S. Department of the Navy, United States Marine Corps Air Station and Naval Aviation Depot, Cherry Point, North Carolina, 42 FLRA 192 (1991) (Naval Aviation Depot). The proposal in that case precluded the agency, when determining appropriate disciplinary actions for employees, from considering as prior offenses suspensions or reductions in grade or pay that occurred more than 3 years before the date of a proposed adverse action. We found that the proposal directly and excessively interfered with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See also American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 322-24 (1990) (proposal requiring agency to expunge from employee's personnel file records of the disciplinary or adverse actions that led to a last chance agreement directly and excessively interfered with management's right to discipline employees), enforced as to other matters sub nom. United States Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio v. FLRA, 949 F.2d 475 (D.C. Cir. 1991).

Proposal 1 would require the Agency to delete or obliterate from an employee's file all records of counseling sessions or oral admonishments after 180 days, except in limited circumstances. Thus, like the proposal in Naval Aviation Depot, Proposal 1 would preclude the Agency, when determining appropriate disciplinary actions for employees, from considering counseling sessions or oral admonishments more than 180 days after the occurrence of those counseling sessions and oral admonishments. We note that Proposal 1 allows management to rely on counseling sessions and oral admonishments that are over 180 days old where the counseling sessions and oral admonishments have been the basis of additional disciplinary action during that 180 days. Although this exception means that Proposal 1 is a more limited restriction on management's right to discipline than the proposal in Naval Aviation Depot, it does not change the fact that Proposal 1 is a substantive restriction on that right. See National Association of Government Employees, Local R4-45 and U.S. Department of the Navy, Navy Resale and Services Support Office, Norfolk, Virginia, 40 FLRA 56, 61 (1991).

Because Proposal 1 establishes a time limit on the use of prior disciplinary actions to determine the penalty in subsequent discipline, we find, consistent with Naval Aviation Depot, that the proposal directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

The Union asserts that because Proposal 1 merely modifies the Agency's existing practice of removing records of counseling and admonishments by shortening the period that the records remain in an employee's file from one year to six months, the requirement in Proposal 1 does not excessively interfere with the scheme already adopted by the Agency and is, therefore, an appropriate arrangement for employees. For the following reasons, we disagree.

To determine whether a proposal constitutes an appropriate arrangement, we must determine whether the proposal is: (1) intended as an arrangement for employees adversely affected by the exercise of a management right, and (2) appropriate because it does not excessively interfere with the exercise of management's rights. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard). We determine whether a proposal excessively interferes with a management right by weighing the benefits of the proposal to unit employees against the burden on management's rights imposed by the proposal. Id.

Applying the analytical framework established in Kansas Army National Guard, we find that the proposal is intended as an arrangement for employees adversely affected by the Agency's right to discipline. However, balancing the burden on the Agency's right to formulate appropriate discipline for offenses committed by its employees and the benefit to employees of not being subject to unwarranted discipline, we find that the proposal would excessively interfere with the Agency's right to discipline. Although employees would benefit significantly from not being subject to penalties based on offenses committed in the past, the proposal's exclusion from the progressive disciplinary system of prior offenses resulting in counseling sessions or oral admonishments which are over 180 days old, other than those which have been the basis of another disciplinary action, places a significant burden on management's ability to determine, based on all available evidence, whether a particular disciplinary action is appropriate and supportable. See Naval Aviation Depot, 42 FLRA at 195-96. See also International Association of Machinists and Aerospace Workers, Lodge 39 and U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia, 41 FLRA 1452, 1456 (1991).

The proposal eliminates counseling sessions and oral admonishments from consideration in further disciplinary action after 180 days, if those sessions and admonishments have not been the basis of further discipline, regardless of the number, frequency, or circumstances surrounding the sessions and admonishments. The proposal, therefore, imposes a severe restriction on management's ability to consider counseling sessions and oral admonishments when determining the appropriate disciplinary penalty.

Moreover, our conclusion is not altered by the fact that, under existing Agency policy, management removes records of counseling sessions or oral admonishments after one year. Shortening by six months the period that records of counseling sessions and oral admonishments would remain in an employee's file deprives the Agency of information relevant to determining the appropriate disciplinary penalty. We find that the benefit of the time restriction imposed on management by the proposal to employees whose conduct has rendered them subject to possible discipline is outweighed by the resultant burden on management's ability to assess an appropriate penalty by taking into account prior discipline. Therefore, we find that Proposal 1 would excessively interfere with the Agency's right to discipline by limiting the use of records of counseling sessions and oral admonishments.

Consequently, because we find that Proposal 1 excessively interferes with management's right to discipline under section 7106(a)(2)(A), we conclude that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute.

Accordingly, we conclude that Proposal 1 is nonnegotiable.

III. Proposal 2

Article 13, Section 13.2. Performance standards shall be fairly, equability [sic], objectively, and uniformly applied for like duties in like circumstances and shall be reasonably related to the duties set forth in the position description.

A. Positions of the Parties

1. Agency

The Agency states that proposals which impose restrictions on the establishment of performance standards are inconsistent with management's rights to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that "to the extent that [Proposal 2] places restrictions on the [Agency] in the formulation of performance standards, it is nonnegotiable." Statement at 3. The Agency maintains that "[w]hile the first portion of the proposal could be read to address solely the application of the performance standards, the [U]nion's stated intent would indicate otherwise." Id. The Agency asserts that "[i]t is clear from [the Union's] statement that the [U]nion's intent is to establish general, non-quantitative requirements for the standards themselves--not for their application." Id. The Agency admits that it is "technically true" that the proposal does not "prescribe the content of the standards." Id. However, the Agency states that Proposal 2 "prescribes certain conditions under which the standards must apply." Id. According to the Agency, the Union states that the "proposal prescribes a description of performance standards." Id. (emphasis in original). The Agency concludes, therefore, that "the proposal could not prescribe a non-quantitative description of the application of those standards." Id. (emphasis in original).

The Agency also notes that the second part of Proposal 2 requires that performance standards be reasonably related to the duties set forth in the position description. The Agency claims that that portion of Proposal 2 provides, in essence, that "standards which are not related to the job description could not be assigned." Id. The Agency argues that "[a]s such, this aspect of the proposal also directly interferes with management's rights to assign work and direct employees." Id.

The Agency cites American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 34 FLRA 1114 (1990) (Department of Education) in support of its contention. The Agency states that, in that case, the Authority found that a proposal requiring that the performance appraisal system be fair, equitable, and job-related interfered with management's rights to direct employees and assign work because the proposal created criteria for the establishment of performance standards. According to the Agency, "the Authority stated that '[p]roposals which restrict management's authority to determine the content of performance standards are inconsistent with the rights to assign work and direct employees.'" Id. at 4 (citing Department of Education, 34 FLRA at 1116). The Agency argues that Proposal 2 "mandates certain factors which the performance standards must comply with." Id. The Agency concludes that "the [U]nion's proposal must be found to be nonnegotiable as violative of management's rights to assign work and direct employees." Id.

2. Union

The Union states that Proposal 2 "would set forth a general non-quantitative description of performance standards." Petition for Review (Petition) at 2. The Union asserts that "[n]othing in the provision prescribes the content of the standards." Id. The Union argues that the Agency does not have "the right to promulgate performance standards that are 'unfair, inequitable and arbitrarily and capriciously applied[.']" Response at 2. The Union maintains that "performance standards which do not meet the standards set forth in the proposal are not in conformance with 5 USC 4203 and violate the merit system principles set forth in 5 USC 2301." Id.

B. Analysis and Conclusions

We find that Proposal 2 is negotiable.

1. The First Part of Proposal 2

Management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute encompass the authority to identify critical elements of performance and to establish performance standards. See, for example, National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 845 (1990) (NAFEC, Western Division) and cases cited therein. Proposals that restrict an agency's authority to determine the content of performance standards and critical elements directly interfere with management's rights to direct employees and to assign work. See, for example, National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Western Region, 42 FLRA 964, 974-78 (1991) (FNS, Western Region); NAFEC, Western Division, 36 FLRA at 845.

On the other hand, proposals governing only the application of performance standards and critical elements do not conflict with management's rights to direct employees and to assign work. See, for example, id. at 846. Accordingly, the task in deciding the negotiability of Proposal 2 "'is primarily one of determining, based on the record, whether [it] concern[s] substantive matters, such as the content of performance standards and critical elements, or whether [it] concern[s] the application of those standards and elements and other nonsubstantive matters such as procedures.'" Id. (quoting Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 387 (1987) (Patent and Trademark Office), aff'd as to other matters mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam).

We find, based on the plain wording of the proposal and the Union's explanation, that the first portion of Proposal 2 concerns the application of performance standards. The plain wording of the first portion of Proposal 2 provides that the Agency shall apply performance standards fairly, equitably, objectively, and uniformly for like duties in like circumstances. Moreover, the Union specifically states that "[n]othing in [Proposal 2] prescribes the content of the standards." Petition at 2. The Union's statement is consistent with the wording of the proposal.

We note the Union's statements that the proposal is a description of the performance standards and that the Agency does not have the right to promulgate standards that are unfair or inequitable. We conclude, however, that these statements do not establish that the Union intends the first portion of Proposal 2 to restrict the content of performance standards, particularly in light of the plain wording of the proposal and the Union's explicit statement that the proposal does not prescribe the content of the standards. We interpret the first part of Proposal 2, therefore, based on its plain wording and the Union's explicit statement, as pertaining to the application of performance standards rather than the content of those standards.

Because the first part of Proposal 2 concerns the application of performance standards rather than the content of the standards, we find, consistent with NAFEC, Western Division, that the first part of Proposal 2 does not directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Accordingly, we find that the first portion of Proposal 2 is negotiable.

2. The Second Part of Proposal 2

The Authority has previously found that proposals that require consistency between position descriptions and performance elements do not restrict an agency's choice of performance elements. See, for example, National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA 1067, 1071-74 (1987) (FNS, Midwest Region), affirmed as to other matters sub nom. National Treasury Employees Union v. FLRA, 848 F.2d 1273 (D.C. Cir. 1988). Such proposals permit an agency to achieve the required consistency by amending the position description. The right of an agency to direct employees and assign work through the establishment of performance elements and standards remains unaffected, subject to the procedural requirement that the position description involved must accurately reflect the work assigned. Id. The Authority has concluded that proposals that require consistency between position descriptions and performance elements are negotiable procedures under section 7106(b)(2) of the Statute. Id. See also FNS, Western Region, 42 FLRA at 981 (subsection 3 of Provision 5).

The second part of Proposal 2 requires that performance standards be "reasonably related" to the duties set forth in the position description. We find that there is no substantive distinction between the requirement that standards be reasonably related to the position description and the requirement that standards be consistent with the position description. In both cases, management would have the discretion to amend the position description to ensure that the position description is reasonably related to the applicable performance standards, subject, of course, to the procedural requirement that the position description must accurately reflect the work assigned. Consequently, we find, consistent with FNS, Western Region and FNS, Midwest Region, that the second part of Proposal 2 does not directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Accordingly, we conclude that the second portion of Proposal 2 is negotiable.

IV. Proposal 3

Article 13, Section 13.2. Performance standards shall be objective to the maximum extent feasible and shall provide incentives for superior performance.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 3 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency claims that Proposal 3 "directly mandates the content of performance standards." Statement at 4. In particular, the Agency claims that "the proposal requires performance standards to be objective to the maximum extent feasible" and asserts that "the imposition on management's ability to develop its performance standards violates its right to assign work and direct employees." Id. (emphasis in original). The Agency argues that "[t]he phrase 'to the maximum extent feasible' does not remove the substantive limitation on management's rights." Id.

The Agency states that the latter portion of Proposal 3, which provides that performance standards "shall provide incentives for superior performance[,]" was declared nonnegotiable because it was interpreted as requiring incentive awards for superior performance. However, "the [A]gency withdraws this basis for declaring [the latter portion of] the proposal nonnegotiable" because "the [U]nion states that this is not the intent." Id. at 5.

The Agency argues that the latter portion of the proposal is nevertheless nonnegotiable for a different reason. According to the Agency, based on the Union's stated intent, the latter portion of the proposal is nonnegotiable because it prohibits absolute standards. The Agency interprets the latter portion of Proposal 3 "as requiring all performance standards to be exceedable or, as the proposal states, providing for incentives for superior performance." Id. According to the Agency, the wording of the proposal means that "management cannot impose absolute standards on bargaining unit employees which would not allow them to exceed the standard." Id. The Agency concludes, therefore, that "the proposal interferes with management's authority to establish absolute performance standards." Id.

The Agency states that the Merit Systems Protection Board (MSPB) has determined that management has the right to establish an absolute standard "in cases where failure could result in death, injury, breach of security, or great monetary loss." Id. (citing Callaway v. Army, 23 MSPR 592 (1984) (Callaway)). The Agency asserts that the employees involved in this dispute "are, among other things, mechanics and electricians. Their actions can involve situations which could result in death and injury. Thus, absolute standards are necessary." Id. The Agency argues that "[a] complete prohibition [of] these type of standards violates management's rights to assign work and direct employees." Id. The Agency contends, therefore, that the latter portion of Proposal 3 is nonnegotiable.

2. Union

The Union states that Proposal 3 "does not require incentive awards, as alleged by management." Petition at 2. The Union states that Proposal 3 "merely requires that performance standards be written in such a manner that an employee is capable of achieving a higher rating than fully successful." Id. According to the Union, Proposal 3 "is taken directly from the law." Response at 2 (citing 5 U.S.C. § 4302). The Union asserts that "[h]olding the Agency to do what it is already required to do cannot possibly interfere with its managerial rights." Id. In response to the Agency's argument that Proposal 3 prohibits absolute standards, the Union asserts that "there [are] not positions within the bargaining unit having absolute performance standards." Id.

The Union states that Proposal 3:

was meant simply to track the provisions of law and that law itself does not in terms provide for absolute standards. Nevertheless, as the Agency notes, the MSPB has recognized the need for such standards in rare circumstances. Since the Union is not attempting to alter existing rights and responsibilities, the Union states that its proposal should not be interpreted as prohibiting absolute standards under circumstances where governing law and case decisions would allow them.

Id.

B. Analysis and Conclusions

We find that Proposal 3 is negotiable.

1. First Part of Proposal 3

The first part of Proposal 3 provides that, to the maximum extent feasible, performance standards shall be objective. The Union claims that the proposal is "meant simply to track the provisions of law[.]" Response at 2. We find that the Union's explanation is consistent with the plain wording of the first part of Proposal 3. In particular, we note that 5 U.S.C. § 4302(b)(1) requires that agencies establish performance standards that, "to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria . . . ." The effect of Proposal 3 is to incorporate into the parties' agreement the requirement of 5 U.S.C. § 4302(b)(1) that performance standards be based on objective criteria to the maximum extent feasible.

The exercise of management's rights under section 7106(a)(2) is subject to "applicable laws." See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377 (1991), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service, No. 91-1573 (D.C. Cir. Nov. 25, 1991) (IRS). Because the first part of Proposal 3 concerns the contractual incorporation of the limitations on management's rights to direct employees, under section 7106(a)(2)(A), and to assign work, under section 7106(a)(2)(B), contained in 5 U.S.C. § 4302(b)(1), we must address whether the limitations contained in 5 U.S.C. § 4302(b)(1) and imposed by the proposal constitute "applicable law" within the meaning of section 7106(a)(2) of the Statute.

In IRS we determined that the phrase "applicable laws" includes "provisions of the United States Code." Id. at 389. We conclude, therefore, that 5 U.S.C. § 4302(b)(1) constitutes an applicable law within the meaning of section 7106(a)(2) of the Statute and a permissible limitation on the exercise of management's rights to direct employees and assign work. See id. at 404. Because the first part of Proposal 3 incorporates a permissible statutory limitation on the establishment of performance standards, we find, consistent with IRS, that the first part of Proposal 3 is negotiable.

We note that the first part of Proposal 3 is distinguishable from the proposal that we found nonnegotiable in FNS, Western Region, 42 FLRA at 986. The proposal in that case required that performance standards be "objective." We found that the proposal established a substantive criterion governing the determination of the content of performance standards. The first part of Proposal 3, however, provides that, to the maximum extent feasible, performance standards shall be objective and, thus, that part of the proposal incorporates the requirement of 5 U.S.C. § 4302(b)(1).

2. Second Part of Proposal 3

The second part of Proposal 3 requires the Agency to establish performance standards that provide incentives for superior performance. The Agency argues that by providing that performance standards shall provide incentives for superior performance, Proposal 3 directly interferes with management's authority to establish absolute performance standards.

However, the plain wording of Proposal 3 does not preclude the Agency from establishing absolute performance standards in accordance with law. The Union states that Proposal 3 "was meant simply to track the provisions of law and that the law itself does not in terms provide for absolute standards." Response at 2. The Union also states that, "as the Agency notes, the MSPB has recognized the need for such standards in rare circumstances." Id. The Union claims that it "is not attempting to alter existing rights and responsibilities" and "that its proposal should not be interpreted as prohibiting absolute standards under circumstances where governing law and case decisions would allow them." Id. The Union's statement is consistent with the wording of the second part of the proposal and we will adopt that interpretation for the purposes of this decision.

Under 5 U.S.C. § 4302(a)(3), agencies are required to develop performance appraisal systems which "use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, reducing in grade, retaining and removing employees[.]" Under 5 U.S.C. § 4302(b)(1), each performance appraisal system shall provide for "establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria . . . related to the job in question . . . ." Performance appraisal systems must also provide, among other things, for "recognizing and rewarding employees whose performance so warrants[.]" 5 U.S.C. § 4302(b)(4). Absolute standards generally are inconsistent with the requirements of 5 U.S.C. § 4302 because such standards fail to provide a basis for rewarding employees as provided by that section. "Absolute performance standards, which do not measure above-satisfactory performance, do not provide the envisioned basis for personnel actions rewarding employees. Rather, such performance standards are often negative . . . and impede the statutory purpose to use performance appraisals as a basis for rewarding employees." Callaway, 23 MSPR at 598-99. However, absolute performance standards are not per se inconsistent with the wording of 5 U.S.C. § 4302(b)(1). Id. at 597. Consequently, absolute performance standards may, but do not necessarily, conflict with 5 U.S.C. § 4302(b).

We interpret the second part of the proposal as incorporating the limitations on the establishment of absolute standards contained in law, specifically, 5 U.S.C. § 4302(b). We find, therefore, for the reasons set forth in our disposition of the first part of Proposal 3, that the second part of the proposal merely requires management to exercise its rights to direct employees and assign work in accordance with applicable law. We conclude, therefore, that the second part of Proposal 3 does not directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See IRS, 42 FLRA at 404.

V. Proposals 5, 6 and 7

Proposal 5

Article 15, Section 15.1. The rate schedule which currently applies to employees provides that overtime will be paid at twice (2) the normal rate of compensation. This will not be changed except as may be required by a law or government-wide regulation.

Proposal 6

Article 15, Section 15.3. The rate schedule which currently applies to employees provides that Sunday work that is not overtime work will be paid at the basic rate of compensation plus twenty-five percent (25%). This will not be changed except as may be required by law o[r] government-wide regulation.

Proposal 7

The rate schedule which currently applies to employees provides that holidays worked will be paid at the basic rate of compensation plus a premium of twice (2) the basic rate of compensation. That schedule also provides that an employee required to work on a holiday will receive premium pay for non-overtime work. It also provides that work on a holiday in excess of the normally scheduled hours will be paid the regular overtime rate of double time. These provisions will not be changed except as may be required by a law or government-wide regulation.

[Only the underscored portions of the proposals are in dispute.]

A. Positions of the Parties

1. Agency

The Agency contends that Proposals 5, 6, and 7 violate the Prevailing Rate Systems Act of 1972 (PRSA), 5 U.S.C. § 5341-49, and the Supplemental Appropriations Act of 1982, (Pub. L. No. 97-257, 96 Stat. 832) (the Act). The Agency states that bargaining unit employees' pay "is governed exclusively by the [PRSA] and [the Act]." Statement at 7. The Agency asserts that the Act requires that employees be paid wages as determined by the Department of Defense Wage Fixing Authority (WFA) to be consistent with wages paid by the Department of Interior and the Department of Energy. The Agency states that, in United Power Trades Organization and U.S. Army Corps of Engineers, North Pacific Division, 30 FLRA 639 (1987) (North Pacific Division II) and United Power Trades Council and United States Army Corps of Engineers, North Pacific Division, 21 FLRA 501 (1986) (North Pacific Division I), which involved the parties to this dispute, the Authority found that the wage setting procedures described above were established in law and that the WFA wage and salary determinations are not agency rules or regulations within the meaning of section 7117(a)(2) of the Statute. The Agency contends that, "[a]s such[,] any proposal modifying the decisions of the WFA would be found nonnegotiable." Id.

The Agency argues that in this case "the [U]nion has again sought to relitigate the applicability of the [PRSA] and [the Act]." Id. The Agency states that "the [U]nion's proposals as written, could be interpreted as complying with these Acts. That is, the proposals indicate that the salary rates will not be changed except as required by law or [G]overnment-wide regulation." Id. However, the Agency asserts that "the [U]nion has clearly interpreted the DOD WFA's rate schedules as stemming from agency regulations and not law." Id. The Agency maintains that "the intent of the proposal[s] is to incorporate the current pay schedules so that they may not be changed during the life of the agreement." Id. at 8. The Agency argues that "[a]s the specific intent of the proposal[s] is to circumvent any adjustments dictated by the DOD WFA," the proposals violate the terms of the Act. Id. According to the Agency, "[t]he Act states that the '. . . Corps of Engineers Special Power Rate Schedules shall be paid, beginning the effective date of each annual wage survey in the region after the date of enactment of this Act.'" Id. (emphasis added by Agency). Based on its assessment of the Union's intent, the Agency argues that because "the [U]nion's proposals require the [Agency] to continue with its current salary schedule, regardless of any modifications stemming from the wage survey, [Proposals 5, 6 and 7] violate[] law." Id.

2. Union

The Union states that it "recognizes that wage-rates for bargaining unit employees are currently set by the [WFA]." Petition at 2 (citation omitted). The Union asserts that "the Union is not attempting to negotiate the substance of the rates set forth in the power rate schedule. We are simply attempting to incorporate this schedule, as it currently exists, in the labor contract so that it may not be changed during the life of the contract, under 5 U.S.C. § 7117(a)(7)." Id. As to the Agency's argument that North Pacific Division I and North Pacific Division II have already resolved the issue of the negotiability of wage and salary determinations for the employees involved in this case, the Union asserts that "much has happened since 1987[,]" when those cases were decided. Response at 3. The Union states that the Supreme Court's decision in Fort Stewart Schools v. FLRA, 110 S. Ct. 2043 (1990) "demonstrates that where the Agency has some discretion in establishing wage rates, those rates may be negotiable." Id. However, the Union "emphasize[s] again that it is not attempting to negotiate over wage rates in its proposals but merely attempting to 'lock in' the wage rates prescribed by the Agency for the life of the contract." Id.

B. Analysis and Conclusions

We find that Proposals 5, 6, and 7 are negotiable.

The wages of Corps of Engineers employees who are subject to the PRSA and the Act, but are not subject to section 9(b) of the PRSA and section 704 of the CSRA, must be determined by the WFA consistent with the wages of Department of Energy and Department of the Interior employees who are performing similar work in the corresponding area. See North Pacific Division I, 21 FLRA 501. See also United Power Trades Organization and U.S. Army Corps of Engineers, North Pacific Division, 30 FLRA 639, 641-43 (1987). There is no evidence in the record that the employees in this case are subject to section 9(b) of the PRSA or section 704 of the CSRA.

Proposals 5, 6, and 7 would in no manner affect the wage-setting system established by the PRSA and the Act. The proposals do not attempt to substitute negotiated wage rates for the rates that are determined by the WFA pursuant to surveys of similarly situated employees in the Department of Energy and the Department of Defense. Rather, the proposals merely restate those rates in the contract. Moreover, the proposals do not preclude changes in those rates, including the yearly survey changes, as long as the changes are made through the procedures established by the PRSA and the Act. Compare North Pacific Division, 21 FLRA at 504 (arbitrator's award requiring shift differential different from the shift differential determined by the WFA found deficient because award was inconsistent with the Act). Thus, the proposals simply require that wage rates of unit employees be established consistent with law and Government-wide regulation.

Because Proposals 5, 6, and 7 do not attempt to negotiate the wage rates of employees whose wage rates are specifically provided for by law, but rather attempt to ensure that any changes in those rates are changes that are required by applicable law and Government-wide regulation, we find that the proposals are distinguishable from Proposal 3 at issue in National Association of Government Employees, Local R4-26 and Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 118, 141-42 (1991) (Langley Air Force Base). In Langley Air Force Base, Proposal 3 was an attempt to negotiate wage rates of employees who are covered by the PRSA, but are not subject to section 9(b) of the PRSA and section 704 of the CSRA, that would substitute for the rates that would be established pursuant to the PRSA.

We find that the Union's proposals in this case are not intended as a substitute for the rates that are established by law, namely, the PRSA and the Act. Consequently, as distinguished from Langley Air Force Base, we find that the proposals in this case are not intended as a substitute for matters that are specifically provided for by law within the meaning of section 7103(a)(14)(C). Rather, the proposals require management to ensure that the only changes in wage rates are changes that are required by law and regulation. Consequently, we also conclude that the proposals in this case are distinguishable from the proposals at issue in North Pacific Division I and North Pacific Division II which were found to be nonnegotiable because they were inconsistent with law.

Because we find that the proposals do not concern matters that are specifically provided for by law within the meaning of section 7103(a)(14)(C) of the Statute, but require only that changes in wage rates be those that are required by law and Government-wide regulation, we conclude that the proposals are negotiable. See National Treasury Employees Union, Chapter 213 and 228 and United States Department of Energy, Washington, D.C., 32 FLRA 578, 581 (1988).

VI. Proposal 8

Article 18, Section 18.7. Termination of probationary employees; or termination of temporary employees for non-disciplinary reasons.

[Only the underlined portion is in dispute.]

A. Positions of the Parties

1. Agency

According to the Agency, Proposal 8 "identifies certain actions which are excluded from the terms of the negotiated grievance procedure." Statement at 8. The Agency asserts that because the proposal specifically excludes temporary employee grievances over terminations for non-disciplinary reasons and does not exclude terminations for disciplinary reasons, "it must be implied that terminations for disciplinary reasons would be grievable." Id. The Agency contends that, interpreted in this manner, "the proposal violates applicable law and, therefore, is nonnegotiable . . . ." Id.

The Agency maintains that in American Federation of Government Employees, AFL-CIO, Council of Marine Corps Locals, Council 240 and U.S. Department of the Navy, Headquarters, U.S. Marine Corps, Washington, D.C., 39 FLRA 839 (1991) (U.S. Marine Corps) and Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1426-30 (1991) (Mare Island Naval Shipyard), the Authority addressed proposals similar to Proposal 8. The Agency states that in those cases, the Authority found, consistent with Horner v. Lucas, 832 F.2d 596 (Fed. Cir. 1987), that "temporary employees are not afforded the statutory protections and appeal rights in 5 USC sections 7511-7513 and, therefore, an arbitrator is without authority to decide the appropriateness of the termination of a temporary employee." Id. at 9.

2. Union

The Union acknowledges the Authority precedent cited by the Agency with regard to temporary employees but disagrees with it. The Union notes that temporary employees have appeal rights to the Merit Systems Protection Board (MSPB) in limited circumstances if they meet the definition in 5 U.S.C. § 7511. The Union maintains that "a union contract may provide additional protections for temporary employees beyond those available at MSPB." Id. According to the Union, there is "no reason why the Union should not be able to file a grievance protesting the premature termination of these employees' appointments for arbitrary or irrational reasons." Id. at 3. The Union asserts that "[t]he statutory term 'grievance' has been defined so broadly that it even precludes bargaining unit employees from asserting their employment related rights in court." Id. (citation omitted). The Union argues that "[g]iven this broad definition, [the Union sees] no basis in the [S]tatute to conclude that temporary employees may not receive greater protections under a labor contract than are available at the MSPB." Id.

B. Analysis and Conclusions

We find that Proposal 8 is inconsistent with law and, therefore, is nonnegotiable.

Proposal 8 excludes from the negotiated grievance procedure terminations of temporary employees for nondisciplinary reasons. The Union explains that the proposal is intended to allow temporary employees to grieve the termination of their appointments. The Union states that the proposal is intended to provide employees the same rights that they would have to appeal their terminations to MSPB that they would have if they met the definition of "employee" in 5 U.S.C. § 7511. Because 5 U.S.C. § 7511 provides the definition of terms relating to the appeal of adverse actions, we conclude that the Union intends Proposal 8 to include terminations of temporary employees for disciplinary reasons within the scope of the negotiated grievance procedure. The Union's explanation is consistent with the wording of the proposal and we will adopt that interpretation for purposes of this decision. We conclude, therefore, based on the wording of the proposal and the Union's statements, that under Proposal 8, temporary employees would be able to grieve terminations for disciplinary reasons, including adverse actions, through the negotiated grievance procedure.

Proposals that permit temporary employees to grieve terminations for disciplinary reasons, including adverse actions, are inconsistent with law. See Mare Island Naval Shipyard and U.S. Marine Corps. A union may not negotiate protections for temporary employees that are inconsistent with law. Because temporary employees are denied the procedural protections and appeal rights provided in 5 U.S.C. §§ 4303, 7503, and 7513 for disciplinary and performance actions, a proposal allowing temporary employees to grieve such actions is inconsistent with law. See U.S. Marine Corps, 39 FLRA at 846. Thus, a proposal that would afford an employee the right to grieve a termination for disciplinary reasons, where the employee would not otherwise be permitted under law to appeal that termination, is inconsistent with law. See id. at 845; Mare Island Naval Shipyard, 38 FLRA at 1428-30.

The Union's disagreement with our conclusions in Mare Island Naval Shipyard and U.S. Marine Corps does not establish that Proposal 8 is distinguishable from the proposals in those cases and does not provide any basis for concluding that Proposal 8 is negotiable. Consequently, because Proposal 8 would permit temporary employees to grieve terminations for disciplinary reasons, we find, consistent with Mare Island Naval Shipyard and U.S. Marine Corps, that Proposal 8 is inconsistent with law. Accordingly, we find that Proposal 8 is nonnegotiable under section 7117(a)(1) of the Statute.

VII. Proposal 9

Article 18, Section 18.9. Where a statute provides a longer period of time to file a claim than that provided in this Article, the statutory period shall control.

A. Positions of the Parties

1. Agency

The Agency interprets Proposal 9 as "allow[ing] employees the right to file a grievance under the parties' negotiated agreement up to and including the time provided in an applicable statute for the issue being grieved." Statement at 10. The Agency contends that Proposal 9 "violates the spirit and intent of 5 USC section 7121(b)(2) which provides that any negotiated grievance procedure shall '. . . provide for expeditious processing' of grievances." Id. The Agency argues that with regard to some issues, Proposal 9 would allow an employee up to six years to file a grievance. The Agency states that "[w]hile nothing in the legislative history of the Statute indicates the specific intent of [section 7121(b)(2)], it is clear . . . that its purpose is to have grievances heard, and resolved, expeditiously. Allowing an employee six years to file a grievance contravenes this intent." Id.

The Agency acknowledges that "the Authority has found Congress intended to have the parties negotiate the structure of their grievance procedure." Id. (citation omitted). The Agency argues that "allowing employees to grieve certain actions as late as six years after their occurrence does not meet the requirement of the Statute that the procedure provide for 'expeditious processing' of grievances." Id. The Agency maintains that interpreting the term "expeditious processing" consistent with the requirement of effective and efficient Government in section 7101(b) of the Statute "would not allow for grievances to go unraised for up to six years. Rather grievances should be raised and resolved as soon as possible." Id. at 11. The Agency contends that "[t]he interpretation of 'expeditious processing' in a manner consistent with effective and efficient [G]overnment dictates that the [U]nion proposal allowing, in certain circumstances, grievances up to six years after an occurrence violates the meaning [of section 7121(b)(2)] of the Statute." Id.

2. Union

The Union states that Proposal 9 "would allow an employee the period of time prescribed by statute in order to file a grievance, where a statutory claim is raised and where the statute of limitations applicable to the claim is longer than the time for filing a grievance under the labor contract." Petition at 3. The Union argues that Proposal 9 is consistent with the requirement in section 7121 of the Statute for expeditious processing of grievances because Proposal 9 "deals only with the time allowed to file a grievance and does not hinder the expeditious processing of the grievance once it is filed." Id.

In particular, the Union states that the proposal "was inspired by the Federal Circuit's decision in Carter v. Gibbs," 909 F.2d 1452 (Fed. Cir. 1990), cert. denied 111 S. Ct. 46 (1990). Id. The Union notes that in Carter v. Gibbs the court determined that claims under the Fair Labor Standards Act (FLSA) by Federal employees who are covered by a negotiated grievance procedure must be processed under that grievance procedure, rather than in the Federal courts. The Union argues that "if employees are required to enforce their legal rights through the grievance process, they should also be entitled to the limitation periods provided in those laws." Id. According to the Union, "when Congress has specifically provided that all citizens, including [f]ederal employees, have a certain number of years to file certain types of claims, how can it be assumed that Congress believed the period of time it was prescribing was not 'expeditious'?" Response at 3-4. The Union also contends, citing American Federation of Government Employees, AFL-CIO, Council No. 214 v. FLRA, 798 F.2d 1525 (D.C. Cir. 1986), that section 7101 is not a substantive limitation on the Agency's duty to bargain.

B. Analysis and Conclusions

Based on the record in this case, we interpret Proposal 9 as applying to grievances that allege violations of employees' rights under applicable statutes which are raised under the negotiated grievance procedure. Interpreted in this manner, Proposal 9 would apply both to grievances that allege a violation of rights under statute that must, if not excluded by agreement of the parties, be raised only in the negotiated grievance procedure--for example, FLSA claims--and to grievances alleging a violation of statute that can be raised, at the employee's option, in the negotiated grievance procedure or in the appropriate procedure prescribed by statute for such claims--for example, adverse actions. For the following reasons, we conclude that in either case the proposal is consistent with law.

Section 7121 of the Statute requires that all collective bargaining agreements negotiated under the Statute include a grievance procedure. However, the Statute does not establish the structure of that procedure. Therefore, the parties must determine the structure of the grievance procedure through negotiation. National Federation of Federal Employees, Local 29 and Department of Defense, HQ, U.S. Military Entrance Processing Command, 29 FLRA 726, 727-28 (1987). The time limit for filing grievances is part of the structure of the parties' negotiated grievance procedure. Therefore, under the Statute, agencies and unions must determine the time limits for filing grievances through negotiation. See id. at 728.

Although section 7121 of the Statute does not prescribe the time limits for filing grievances under negotiated grievance procedures, the Agency argues that inasmuch as section 7121(b)(2) requires that grievance procedures provide for the expeditious processing of grievances, requiring adherence to the statutory time limits for filing statutory claims would result in significant delays in the resolution of grievances over those claims. We reject the Agency's argument. We find no basis on which to conclude that Congress intended section 7121(b)(2) to preclude unions from negotiating time limits under the negotiated grievance procedure for filing claims concerning rights under law, where such claims may also appropriately be raised under the negotiated grievance procedure, that are the same as the time limits that would govern the filing of those claims under other applicable statutes. Moreover, as the Union notes, nothing in the proposal prevents the expeditious processing of a grievance asserting a statutory claim once employees timely file that grievance under the negotiated grievance procedure.

We also reject the Agency's claim that the proposal is contrary to the requirement, under section 7101 of the Statute, that the Statute be interpreted in a manner that is consistent with an effective and efficient Government. In our view, to the extent that Congress has provided specific time limits for Federal employees to file particular statutory claims, Congress has thereby established that those time limits are consistent with an effective and efficient Government.

Accordingly, because we find that the Agency has not established that Proposal 9 is inconsistent with law, we conclude that Proposal 9 is negotiable.

VIII. Proposal 10

Article 20, Section 20.3. No employee will be subject to disciplinary [or] adverse action as a result of conflicting orders so long as the last order is followed. No employee will be subject to disciplinary or adverse action for refusing to obey an unlawful order.

A. Positions of the Parties

1. Agency

The Agency interprets the first sentence of Proposal 10 as "prevent[ing] management from disciplining an employee if he or she fails to perform a direct order if a subsequent order was issued and the employee complied with the later one." Statement at 11. The Agency claims that, under the first sentence of Proposal 10, an employee who did not want to follow an order could avoid having to obey that order simply by seeking out another order from a different individual and could not be disciplined for failing to follow the original order. The Agency asserts that the first sentence of Proposal 10 directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

The Agency argues that the first sentence of Proposal 10 is similar to Proposal 4 in American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 19 FLRA 1027 (1985). The Agency states that the Authority found that proposal nonnegotiable because it would have immunized employees from discipline if the employees remained in a rehabilitation program and made progress in overcoming their alcoholism or drug abuse. The Agency also argues that the first sentence of Proposal 10 is similar to Proposal 3 in Joint Council of Unions, GPO and United States Government Printing Office, 25 FLRA 1033 (1987), which the Authority found nonnegotiable because it required the agency to negotiate on criteria established for the imposition of discipline. According to the Agency, the first sentence of Proposal 10 "requires management to bargain on specific criteria under which it will discipline its employees." Id. at 12.

The Agency contends that the first sentence of Proposal 10 is not an appropriate arrangement because "the benefits intended from the proposal are totally outweighed by the complete abrogation [of] management's rights to discipline." Id. The Agency states that "if an employee seeks out a subsequent order, no matter how insignificant, he or she would be completely immune from discipline for not completing the initial order, even if the employee knew that the accomplishment of that order was of extreme importance." Id.

The Agency states that the second sentence of Proposal 10 "provides that management will not discipline employees for refusing to obey an unlawful order." Id. The Agency asserts that the issue is not whether an employee can refuse to obey an unlawful order, an issue that was addressed by the Authority in American Federation of Government Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia, 31 FLRA 37 (1988) (Federal Correctional Institution). Rather, the Agency asserts, the issue as to Proposal 10 concerns "the terms under which management may discipline employees." Id. The Agency states that the second sentence of Proposal 10 "precludes the issuance of discipline if the employee states that the order violated law." Id. The Agency argues that "[b]oth sentences of [Proposal 10] do not concern an employee's defense to a disciplinary charge. Instead, they prevent management from issuing the discipline and allowing a third party to determine if the initial order was unlawful or, in relation to the first sentence of the proposal, whether the employee should have known which order took precedence." Id. According to the Agency, Proposal 10 completely prohibits management from initiating discipline under certain circumstances.

2. Union

The Union maintains that "the first sentence of [Proposal 10] is a completely appropriate arrangement for an employee faced with two orders which conflict with each other. The employee must obey one of them and he will be disobeying one order no matter what he does." Response at 4. The Union argues that the first sentence of Proposal 10 does not excessively interfere with management's rights. In support of its argument, the Union requests that "the Authority consider that this same language has been in full force and effect" in a nationwide unit of employees of the Department of Veterans Affairs since 1982. Id. The Union states that "[t]he second sentence of the proposal is completely negotiable. An employee disciplined for refusing an unlawful order is the victim of a prohibited personnel practice." Id. According to the Union, the second sentence "means nothing different and says nothing different than 5 U.S.C. § 2302(b)(9)." Petition at 4. The Union argues that "[m]anagement cannot reserve to itself[,] under [5 U.S.C. § 7106,] the right to violate law." Response at 4.

B. Analysis and Conclusions

For the following reasons, we find that the first sentence of Proposal 10 is nonnegotiable because it excessively interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. We find that the second sentence of Proposal 10 is negotiable.

1. First Sentence

The first sentence of Proposal 10 addresses a situation where an employee is ordered to carry out conflicting supervisory orders. We find, based on the Union's explanation, that "conflicting" means the employee cannot comply with one order without violating the other. The first sentence of Proposal 10 provides that if the employee complies with the last order received, the Agency is precluded from disciplining the employee for failing to carry out the first order. We find that the first sentence of Proposal 10 excessively interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and, therefore, we conclude that the first sentence of the proposal is nonnegotiable.

Provisions or proposals that prevent management from disciplining an employee for specified conduct directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. National Association of Government Employees, Local R5-82 and U.S. Department of the Navy, Navy Exchange, Naval Air Station, Jacksonville, Florida, 43 FLRA 25, 41 (1991) (Navy Exchange, Naval Air Station). The first sentence of Proposal 10 prevents the Agency from disciplining an employee who fails to follow a supervisory order if the employee receives a subsequent conflicting order and the employee carries out the subsequent order. By preventing the Agency from disciplining an employee in those circumstances, we find the first sentence of Proposal 10 prevents the Agency from taking disciplinary action against an employee for failing to obey the first order. Accordingly, we find that the first sentence of Proposal 10 directly interferes with the Agency's right to take disciplinary action under section 7106(a)(2)(A) of the Statute. See Navy Exchange, Naval Air Station, 43 FLRA at 41.

The Union argues that the first sentence of Proposal 10 "is a completely appropriate arrangement for an employee faced with two orders which conflict with each other." Response at 4. Applying the principles set forth in Kansas Army National Guard, we find that the first sentence of Proposal 10 is intended as an arrangement for employees adversely affected by the exercise of management's right, under section 7106(a)(2)(A), to discipline employees. Employees are adversely affected by the Agency's exercise of its right to discipline them for failing to follow one of two conflicting orders. Where management issues employees conflicting orders, employees are put in the impossible situation of complying with both orders. In order to obey one order, employees must disobey the other, thus rendering them subject to discipline. The proposed arrangement in Proposal 10 would alleviate the adverse effect of discipline by immunizing employees from discipline for disobeying the first order.

We turn, then, to the question of whether the first sentence of Proposal 10 constitutes an appropriate arrangement or whether it excessively interferes with management's right to discipline employees. The first sentence of Proposal 10 benefits employees by protecting them from discipline when they fail to follow the first of two conflicting supervisory orders. The first sentence of Proposal 10 imposes a burden on management by precluding management in all instances from disciplining an employee for the failure to follow the first of two conflicting orders, regardless of the circumstances giving rise to the conflicting orders. For example, the first sentence of Proposal 10 does not permit management to take into account the nature of the conflicting orders, the degree of any conflict, the relative importance of the two orders, the levels of supervision involved, or any other circumstances that might affect management's determination with respect to the exercise of its right to discipline employees.

Because the first sentence of Proposal 10 would immunize an employee from discipline for following the second of two conflicting orders, without regard to the circumstances involved, we find that the first sentence of Proposal 10 imposes a significant burden on management's right to discipline employees under section 7106(a)(2)(A) of the Statute. We further find that the burden imposed on management's right to discipline by the first sentence of Proposal 10 outweighs the benefit of immunity from discipline afforded employees by that sentence. We find, therefore, that the first sentence of Proposal 10 excessively interferes with management's right to discipline employees under section 7106(a)(2)(A). Consequently, we conclude that the first sentence of Proposal 10 is not an appropriate arrangement within the meaning of section 7106(b)(3) and that it is nonnegotiable.

3. Second Sentence

The second sentence of Proposal 10 provides that an employee will not be subject to discipline for refusing to obey an unlawful order. It appears from the record that the Union intends to preclude the Agency from disciplining employees for refusing to follow orders that "violate law." Response at 4. For the reasons discussed below, we find that the second sentence of Proposal 10 does not directly interfere with management's right to discipline. We also find that even if Proposal 10 directly interfered with the Agency's right, it would constitute an appropriate arrangement and, therefore, would be negotiable under section 7106(b)(3) of the Statute.

Management may not discipline employees for refusing to obey an illegal order. See Schmidt v. United States, 145 Ct. Cl. 632, 636 (1959) (Schmidt). See also Gragg v. Department of Air Force, 24 MSPR 506, 509 (1984) (Gragg) (where an agency's order directing an employee to follow an agency policy was in direct contravention of the Authority's order directing the agency to revoke the policy at the time the employee was ordered to comply with it, the supervisor's directive to comply with the order was not a "proper" supervisory order, and disobedience of the directive could not serve as a basis for discipline); Korowin v. Department of Justice, 10 MSPR 17 (1982) (where an employee had no duty in law, rule, or regulation to obey agency directive, refusal to obey order did not constitute misfeasance, malfeasance, or nonfeasance and could not support charge of failure to carry out instruction). Compare Bigelow v. Department of Health and Human Services, 750 F.2d 962, 965 (Fed. Cir. 1984) (discipline proper where supervisory order was not illegal).

In the absence of any evidence to the contrary in the record of this case, we find that the second sentence would not preclude the Agency from disciplining an employee where the order that the employee refuses to follow is determined to be a legal order. Moreover, under the second sentence of the proposal, a mere claim by an employee that an order is illegal is not sufficient to preclude discipline for failing to comply with that order.

By precluding the Agency from disciplining employees who refuse to comply with an unlawful supervisory order, the second sentence of Proposal 10 merely requires the Agency to discipline employees for failing to comply with an order in accordance with the standards for discipline established in controlling case law. Thus, consistent with Schmidt and Gragg, the second sentence of Proposal 10 simply requires the Agency to discipline employees in accordance with controlling case law. Because the Agency is required under section 7106(a)(2) of the Statute to exercise its right to discipline in accordance with applicable law, the second sentence of Proposal 10 does not directly interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute. See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 389-91, 404 (1991), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 91-1573 (D.C. Cir. Nov. 25, 1991).

Moreover, even if the second sentence of Proposal 10 directly interfered with the Agency's right to discipline employees, we find, applying the analytical framework established in Kansas Army National Guard, that the second sentence of Proposal 10 constitutes an appropriate arrangement for employees adversely affected by the exercise of management's right to discipline employees. 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, 1077-79 (1990), petition for review filed sub nom. United States Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 13, 1991).

According to the Union, the second sentence of the proposal is intended to protect employees against a "prohibited personnel practice." Petition at 4. We find that, by protecting employees from discipline when they fail to follow an illegal order, the proposal constitutes an arrangement, within the meaning of section 7106(b)(3) of the Statute, for employees adversely affected by the exercise of management's right to discipline employees.

Without passing on whether an agency commits a prohibited personnel practice by disciplining an employee for failing to follow an illegal order, we find that the second sentence of Proposal 10 constitutes an appropriate arrangement. An agency's interest in disciplining an employee for failing to follow an order that is contrary to law is, at most, negligible. Balancing the negligible burden imposed on management's right to discipline against the benefit of the protection from discipline afforded employees who refuse to follow an order that is unlawful, we find that the second sentence of Proposal 10 does not excessively interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. We conclude, therefore, that even if the second sentence of Proposal 10 directly interfered with management's right to discipline employees under section 7106(a)(2)(A), the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

Accordingly, we conclude that the second sentence of Proposal 10 is negotiable.

IX. Proposal 11

Article 20, Section 20.5. The employer shall at or about the time it issues a proposed disciplinary or adverse action letter inform the Union that a proposal has been issued and the name of the employee.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 11 requires a "blanket release of proposed disciplinary and adverse actions to the [U]nion without regard to employees designating the [U]nion as [their] representative" and asserts that the proposal violates the Privacy Act, 5 U.S.C. § 552a(b). Statement at 13. The Agency argues that, in U.S. Department of Justice and Immigration and Naturalization Service, 37 FLRA 1346 (1991) (INS), dismissed sub nom. United States Department of Justice, Immigration and Naturalization Service v. FLRA, No. 90-1613 (D.C. Cir. Nov. 6, 1991), "the Authority found proposals nonnegotiable, as violative of the Privacy Act, which required the blanket release of proposed disciplinary and adverse actions to the union without regard to whether the employees had designated the union as their representative." Id. The Agency also cites Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410 (1991) (Mare Island Naval Shipyard) in support of its contention that the proposal is contrary to the Privacy Act.

The Agency states that, based on the Union's explanation, the proposal also contemplates that the requested information may be furnished "orally." Id. The Agency argues that this fact does not distinguish Proposal 11 from the provisions found nonnegotiable in Mare Island Naval Shipyard and INS. The Agency asserts that the Privacy Act provides that "'no agency shall disclose any record which is contained in a system of records by any means of communication. . . .'" Id. (quoting 5 U.S.C. § 552a(b)) (emphasis by Agency in Statement). The Agency concludes that "regardless of whether the [U]nion intended to have the requested information disseminated verbally or in written form, the Privacy Act bars its distribution." Id.

2. Union

The Union states that it "recognizes the sensitive nature of disciplinary action." Petition at 4. The Union also states that "[f]or this reason, [it] did not propose that the Union receive copies of all disciplinary action letters." Id. The Union argues that it has "a direct and significant interest in assuring consistency and fairness in discipline and must be entitled to learn who is being disciplined so that these interests can be protected." Id.

B. Analysis and Conclusions

We find that Proposal 11 is inconsistent with the Privacy Act and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

Proposal 11 requires the Agency to inform the Union when the Agency issues a proposed disciplinary or adverse action letter to an employee and to provide the Union with the name of that employee. The proposal would apply to all instances in which the Agency issues a disciplinary or adverse action letter to an employee. The Agency interprets the proposal as requiring the disclosure of the specified information to the Union regardless of whether the Union has been designated as the representative of the employee in connection with the proposed action. As worded, the proposal does not distinguish between disciplinary and adverse actions in which employees have designated the Union as their representative and actions in which the Union has not been designated as the employee's representative. Moreover, the Union does not dispute the Agency's interpretation of the proposal. Consequently, because of the breadth of the wording of the proposal and because the Union does not dispute the Agency's interpretation of the proposal, we conclude that the proposal would require the Agency to inform the Union that a letter proposing a disciplinary or adverse action has been issued to an employee and to provide the name of that employee, regardless of whether the Union has been designated as the representative of the employee in connection with the action.

We also note the Union's statement that Proposal 11 does not require the Agency to provide the Union with copies of the disciplinary or adverse action letters. The Union's statement is consistent with the wording of the proposal and we adopt it for purposes of this decision. We conclude, therefore, that the proposal does not require the Agency to provide the Union with copies of the letters, but only to communicate to the Union that a disciplinary or adverse action letter is being issued to an employee and the name of that employee. The first issue, therefore, is whether the Privacy Act is implicated when the Agency is required by Proposal 11 to inform the Union that a disciplinary or adverse action letter is being issued to an employee and the name of that employee, regardless of whether the Union has been designated as the representative of the employee.

At the outset, we note that a union is entitled to information concerning disciplinary and adverse actions even where it is not designated as the personal representative of the employees involved. Such information is necessary for the exclusive representative to exercise its representation functions and, therefore, is disclosable under section 7114(b)(4) of the Statute. See National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 68-69 (1988). See also Mare Island Naval Shipyard, 38 FLRA at 1424. The issue here is whether disclosure of the information required by Proposal 11 implicates the Privacy Act and, if so, whether disclosure of that information is inconsistent with the Privacy Act.

The Privacy Act generally prohibits the disclosure of personal information about Federal employees without their consent. 5 U.S.C. § 552a(b). Specifically, the Privacy Act regulates the disclosure of "any record which is contained in a system of records . . . " Id. There is no dispute in this case that disciplinary or adverse action letters constitute records within a system of records under the Privacy Act.

However, Proposal 11, as interpreted above, does not require the disclosure of the letters themselves. Rather, the proposal requires the Agency to disclose the fact that the letter has been issued and the name of the employee to whom the letter has been issued. That difference is not dispositive as to whether disclosure of the information required by the proposal is covered by the Privacy Act. The purpose of the Privacy Act is "to preclude a system of records from serving as the source of personal information about a person that is then disclosed without the person's consent." Olberding v. U.S. Department of Defense, 564 F. Supp. 907, 913 (S.D. Iowa 1982), affirmed, 709 F.2d 621 (8th Cir. 1983) (emphasis in original). Consequently, because the proposal requires disclosure to the Union of information that is derived from disciplinary or adverse action letters, which are records within a system of records under the Privacy Act, we conclude that the disclosure of information required by the proposal is covered by the Privacy Act.

Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the information would be required under the Freedom of Information Act (FOIA). 5 U.S.C. § 552a(b)(2). Under the FOIA, 5 U.S.C. § 552, information must be disclosed unless it falls within one of the enumerated exceptions. Of relevance to this case is exemption (b)(6), which authorizes withholding information in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Copies of proposed disciplinary actions are covered by this exemption. Mare Island Naval Shipyard, 38 FLRA at 1424.

The next question, therefore, is whether disclosure of the fact that disciplinary or adverse action letters have been issued to employees, including employees who have not selected the Union as their representative, and the names of the employees to whom the letters have been issued, constitutes a clearly unwarranted invasion of personal privacy. In resolving this question, the employee's right to privacy must be balanced against the public interest in disclosure. See U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), enforcement denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d 49 (1st Cir. 1991). See also Mare Island Naval Shipyard, 38 FLRA at 1424-25. In applying the balancing test, we look to the public interest embodied in the Statute. Portsmouth Naval Shipyard, 37 FLRA at 525-35.

Applying the balancing test in this case, we find, for the reasons set forth below, that the employees' privacy interests outweigh the public interest in disclosure. Consequently, disclosure of the information required by the proposal would result in a clearly unwarranted invasion of personal privacy.

In INS we stated that employees have a strong privacy interest in information concerning disciplinary and adverse actions:

In our view, there are few workplace matters that evoke such significant privacy interests as disciplinary and adverse actions that are proposed to be taken, or are taken, against employees. These actions generally connote negative conduct or performance on the part of an employee. The personal embarrassment as well as the stigmatizing effect these actions have must be weighed heavily in assessing the employee's privacy interest. Even if the disciplinary or adverse action does not proceed beyond the proposed stage, the employee's name has been connected with some alleged deficiency or wrongdoing.

INS, 37 FLRA at 1363. The information that the Agency must disclose to the Union under Proposal 11 would connect an employee's name "with some alleged deficiency or wrongdoing." Id. We conclude, therefore, that employees have a strong privacy interest involved in the disclosure of that information.

We have also found that the public's interest in the disclosure of information regarding proposed disciplinary or adverse actions to a union is significant. On balance, however, we have concluded that the public's interest in blanket disclosure of information as to all proposed disciplinary and adverse actions to a union, without an expressed, particularized need for the information, is not sufficient to outweigh the strong privacy interests of employees. See Mare Island Naval Shipyard, 38 FLRA at 1425; INS, 37 FLRA at 1364.

Proposal 11 requires the Agency to notify the Union of all proposed disciplinary or adverse action letters issued to employees and the names of the employees to whom the letters are issued, even where those employees have not designated the Union as their representative. We find, therefore, that Proposal 11 constitutes a blanket requirement for notification of proposed disciplinary and adverse actions and for personal identification of the subjects of those proposed disciplinary and adverse actions.

We note that Proposal 11 is distinguishable from Provision 5 in National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 41 FLRA 1241, 1251-53 (1991) (Department of Energy), petition for review filed sub nom. United States Department of Energy, Washington, D.C. v. FLRA, No. 91-1514 (D.C. Cir. Oct. 21, 1991). Provision 5 in Department of Energy required the agency to disclose to the union, among other things, notices to employees that they were subject to reasonable suspicion and incident/occurrence drug testing. We found that the public interest in disclosure to the union of the notices encompassed by Provision 5 outweighed the employees' privacy interests in the notices. In so finding, we noted that the notices would reveal only the fact that employees were to be tested on the basis of reasonable suspicion or a particular incident or occurrence, and that the notices would not reveal the particular facts giving rise to the suspicion or of the incident/occurrence.

In our view, an employee's privacy interest in disclosure of the fact that an agency has issued a proposed disciplinary or adverse action letter to the employee is greater than an employee's privacy interest in disclosure of the fact that the employee has received a notice that the employee is subject to reasonable suspicion and incident/occurrence drug testing. In the former circumstance, the proposed disciplinary action connotes a determination by the agency of an employee's negative conduct or performance. Disclosure of the proposed disciplinary action reveals the agency's determination of negative conduct or performance by a particular employee which warrants discipline. On the other hand, disclosure of the fact that an employee has received a notice that he or she is subject to reasonable suspicion or incident/occurrence drug testing does not constitute an agency's determination, but reveals only that the agency has a reasonable basis to conduct an investigation of an employee or of an incident/occurrence. The results of that investigation would then be used by the agency to make its determination.

As we stated in INS, "there are few workplace matters that evoke such significant privacy interests as disciplinary and adverse actions that are proposed to be taken, or are taken, against employees." INS, 37 FLRA at 1363. Proposal 11 would require disclosure to the Union of the fact that the Agency has issued a proposed disciplinary or adverse action letter to an employee whether or not the employee has designated the Union as his or her representative. Consequently, we find that Proposal 11 is distinguishable from Provision 5 in Department of Energy.

Accordingly, we find, consistent with Mare Island Naval Shipyard and INS, that disclosure of the information required by Proposal 11 would constitute a clearly unwarranted invasion of the affected employees' personal privacy within the meaning of exemption (b)(6) of the FOIA. Accordingly, we conclude that disclosure of that information is prohibited by the Privacy Act.

As we stated in Mare Island Naval Shipyard, the Union is not foreclosed from requesting specific information, including information that is unsanitized, under section 7114(b)(4) of the Statute. In the event that such a request were disputed, the Authority would then balance the employee's privacy interest against the public interest in disclosure to determine whether disclosure of the information is consistent with law. See also INS, 37 FLRA at 1364-65 and the cases cited therein.

X. Proposal 12

Article 22, Section 22.3. The first list of best qualified candidates referred to the selecting official shall contain only bargaining unit employees. No additional candidates shall be referred to the selecting official for ten (10) days after the initial list is provided.

A. Positions of the Parties

1. Agency

The Agency contends that "by requiring that only bargaining unit employees be initially referred to the selecting official, [Proposal 12] violates the provisions of Section 801 et seq[.], The Military Family Act of 1985 (the Act), Public Law 99-145[,]" 10 U.S.C. § 113 note. Statement at 14. The Agency states that section 806(b)(2) of the Act "requires the Secretary of Defense to prescribe regulations '. . . to provide preference to qualified spouses of members of the Armed Forces in hiring for any civilian position in the Department of Defense . . . .'" Id. (emphasis omitted).

The Agency states that the Department of Defense (DoD) promulgated Instruction 1404.12, Employment of Spouses of Active Duty Military Members Stationed Worldwide, to implement the requirement in section 806(b)(2) of the Act. According to the Agency, that regulation provides that "'. . . when a spouse is among the best qualified candidates in an open-competitive merit promotion action, the spouse shall be selected unless this would result in displacement of a current employee at the activity.'" Id. The Agency also states that the DoD regulations provide that "'[a]n eligible spouse shall be selected ahead of other applicants when preference procedures apply and when the spouse is best qualified for the position being filled or is within the best qualified grouping.'" Id. (quoting paragraph F1b of DoD Instruction 1400.20-1-M, Appendix I, DOD Military Spouse Preference Program). The Agency also cites paragraph I1b of DoD Instruction 1400.20-1-M, which provides that "'[u]nder competitive merit promotion procedures, the presence of a priority 3, military spouse, prohibits selection of an internal candidate when a spouse is rated best qualified.'" Id.

The Agency asserts that the Act and the regulations require that, except in limited circumstances not applicable in this case, a qualified military spouse be selected before a bargaining unit employee. The Agency argues that, by mandating that bargaining unit employees be referred to the selecting official 10 days before other candidates (including military spouses), Proposal 12 violates the Act because "it prohibits the concurrent referral and, therefore, preference to military spouse candidates." Id.

The Agency states that the DoD instructions: (1) define procedures for implementing the Act; (2) are nondiscretionary; and (3) were issued pursuant to a statutory mandate. The Agency argues that "[a]s such, the regulations meet the criteria in section 2424.11(c) of the Authority's [R]ules and [R]egulations for determining compelling need of agency regulations . . . ." Id. at 15. The Agency asserts that Proposal 12 is distinguishable from a similar proposal found negotiable in Department of the Treasury v. FLRA, 837 F.2d 1163 (D.C. Cir. 1988) (Treasury v. FLRA). The Agency asserts that the agency in that case was not subject to the Act and, therefore, the proposal found negotiable in Treasury v. FLRA "could not be inconsistent with statutory requirement to give military spouses preference in hiring for civilian positions in the Department of Defense." Id. In the Agency's view, Treasury v. FLRA "has no bearing on the present dispute." Id.

2. Union

The Union states that Proposal 12 "is neither written [n]or intended to be different than the proposal upheld as negotiable in [Treasury v. FLRA]." Petition at 4. The Union notes the Agency's argument that Proposal 12 would interfere with the provisions of the Act that require the Agency to select military spouses under certain circumstances. The Union asserts that "[r]egardless of the merits of the Agency's arguments, [they are] inapplicable to this proposal." Response at 4. The Union states that "[t]he regulation cited by the Agency deals with selection; the proposal deals only with the order in which individuals are considered for a position." Id. (emphasis in original).

B. Analysis and Conclusions

Proposal 12 provides that, when filling a position, the Agency will refer to the selecting official a list of best qualified candidates that contains only bargaining unit employees and that no additional candidates shall be referred to the selecting official for 10 days after the initial list of bargaining unit employees. We find that Proposal 12 is consistent with the Act and with the regulations established pursuant to the Act. We conclude, therefore, that Proposal 12 is negotiable.

1. Military Family Act of 1985

Section 806 of the Military Family Act of 1985 creates employment opportunities for military spouses and provides in pertinent part:

(b) Regulations.--The Secretary of Defense shall prescribe regulations--

. . . .

(2) to provide preference to qualified spouses of members of the Armed Forces in hiring for any civilian position in the Department of Defense if the spouse is among persons determined to be best qualified for the position and if the position is located in the same geographical area as the permanent duty station of the member.

10 U.S.C. § 113 note. The legislative history reiterates that qualified military spouses are to be afforded preference in hiring for positions for which they are qualified in the same geographic area where the member is stationed. H.R. Rep. No. 81, 99th Cong., 1st Sess. 2 (1985), reprinted in 1985 U.S. Code Cong. & Ad. News 472, 598-99. See also 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, 1470 (1991) (Space Systems Division).

Assuming, without deciding, that the Act requires preference in hiring for qualified spouses of members of the Armed Forces for civilian positions in the DoD, we conclude that the proposal is consistent with that requirement. Under the proposal, the selecting official is not required to select from among the candidates on the list of bargaining unit candidates. If the selecting official needs to determine whether there is a best qualified military spouse candidate among the remaining candidates, that official can review the list containing those candidates when it is subsequently provided. If the selecting official determines that the second list contains a best qualified military spouse candidate, that official can select the candidate, thus complying with the required preference. Consequently, we conclude that Proposal 12 is not inconsistent with the Act.

2. DoD Instructions

The Agency also claims that Proposal 12 is nonnegotiable under section 7117(a)(2) of the Statute because the proposal is inconsistent with DoD Instruction No. 1404.12, an Agency regulation for which a compelling need exists under section 2424.11(c) of the Authority's Rules and Regulations. We disagree.

In order to demonstrate that a proposal is nonnegotiable under section 7117(a)(2) because it is barred by an agency regulation for which a compelling need exists, an agency must: "(1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with reference to the Authority's standards set forth in section 2424.11 of its regulations." American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 466 (1991), petition for review filed sub nom. U.S. Department of Justice, Justice Management Division v. FLRA, No. 91-1582 (D.C. Cir. Nov. 26, 1991).

As to the first of these requirements, the Agency has identified DoD Instruction No. 1404.12 as the Agency-wide regulation with which the proposal is inconsistent. See also Statement, Appendix I (DoD Instruction No. 1400.20-1-M, DOD Military Spouse Preference Program (Program S)). The Union does not dispute that the regulation is an Agency-wide regulation. The next question, therefore, is whether the proposal conflicts with the regulation.

We find that the proposal does not conflict with the regulation. Specifically, the regulations provide that "when a spouse is among the best qualified candidates in an open-competitive merit promotion action, the spouse shall be selected unless this would result in the displacement of a current employee at the activity." DoD Instruction No. 1404.12.D.1.a. The regulations also provide that "[a]n eligible spouse shall be selected ahead of other applicants when preference procedures apply and when the spouse is best qualified for the position being filled or is within the best qualified grouping." DoD Instruction No. 1404.12.F.1.a. Finally, the regulations provide that "the presence of a priority 3, military spouse, prohibits selection of an internal candidate when a spouse is rated best qualified." DoD Instruction No. 1400.20-1-M.I.1.b. In sum, under the regulations, when military spouse preference procedures apply, and when a military spouse candidate is best qualified or among the best qualified for the position, the military spouse must be selected for the position.

However, as we explained above, Proposal 12 would not prevent the selection of a best qualified military spouse candidate. Proposal 12 does not concern who will be selected by the selecting official from among the best qualified candidates, nor does it establish any criteria that the selecting official will use when selecting a candidate to fill a position. Under the proposal, the selecting official has the discretion to determine who will be selected from among the best qualified candidates to fill a position. Therefore, the proposal would not prevent the Agency from implementing the military spouse preference required by the Agency's regulations. Accordingly, we conclude that Proposal 12 is consistent with DoD Instruction No. 1404.12.

Because we have determined that Proposal 12 is consistent with DoD Instruction No. 1404.12, we reject the Agency's contentions that Proposal 12 is barred by an Agency regulation for which a compelling need exists.

3. Proposal 12 Is Distinguishable from the Proposal Found Nonnegotiable in Space Systems Division

In Space Systems Division, we considered a proposal that precluded the rating, ranking, referral and consideration of military spouse candidates until after the merit placement process for unit employees had been completed. That is, under the proposal in that case, in order for management to consider a military spouse candidate, management would have to rate, rank, refer and consider unit employees and then, after that process had been completed, separately rate, rank, and refer military spouse candidates. We found that the proposal directly interfered with management's right, in filling positions, to select from among candidates for promotion or from any other appropriate source.

We conclude that Proposal 12 is distinguishable from the proposal in Space Systems Division. By its terms, and based on the record in this case, Proposal 12 would not preclude management from soliciting candidates from outside the bargaining unit or from rating and ranking all candidates concurrently. Rather, Proposal 12 provides that management will consider bargaining unit employees first and then, after 10 days, management will be able to consider other candidates. A proposal that requires that a list of bargaining unit employees be referred to the selecting official 10 days before a list of candidates from outside the bargaining unit is referred to the selecting official does not directly interfere with management's rights, but is a negotiable procedure under section 7106(b)(2) of the Statute. See Treasury v. FLRA. Compare Federal Employees Metal Trades Council of Charleston and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 44 FLRA 683, 700-06 (1992) (proposal requiring the agency to give bargaining unit employees at least 10 days' notice of unit vacancies and the opportunity to apply and be considered for vacant postions before soliciting applications from non-bargaining unit employees directly and excessively interfered with management's right to select under section 7106(a)(2)(C) of the Statute).

Accordingly, we conclude that Proposal 12 is negotiable.

XI. Proposal 15

Article 25, Section 25.5. The filling of bargaining unit vacancies in the competitive area of employees who would be affected by a RIF shall be suspended from the date of the initial RIF notice to affected employees to the effective date of the RIF.

A. Positions of the Parties

1. Agency

The Agency states that Proposal 15 requires it "to totally forego the filling of all vacancies from the date of the [reduction in force (RIF)] notices to the effective date of the RIF, regardless of the need for the position or whether the affected employee would even be eligible for the position." Statement at 16. The Agency asserts that "even if there are no eligible employees for a particular vacancy, management would still be unable to fill the position until after the effective date of the RIF." Id. The Agency contends that Proposal 15 "affects management's ability to determine the numbers and types of employees needed to perform its work and the rights to hire and assign employees and to fill vacancies from any appropriate source." Id.

The Agency argues that Proposal 15 is distinguishable from the proposal found negotiable in National Treasury Employees Union and Department of Energy, 24 FLRA 479 (1986) (Chairman Calhoun concurring) (Department of Energy), which the Union cites in support of its contention that Proposal 15 is negotiable. According to the Agency, the proposal in Department of Energy "concerned the freezing of only vacancies for which affected employees would qualify." Id. The Agency states that unlike Proposal 15 in this case, the proposal in Department of Energy did not prevent the agency from hiring additional employees from outside the bargaining unit when there were no eligible employees within the bargaining unit. The Agency argues that Proposal 15 "completely abrogates management's ability to hire employees." Id.

The Agency states that Proposal 15 provides that "the filling of all bargaining unit vacancies shall be suspended during the notice period of any RIF." Id. at 16-17 (emphasis in original). The Agency maintains that "[i]f sufficient vacancies occur during [the RIF] notice period, management may be unable to accomplish its mission because of lack of employees." Id. at 17. The Agency disputes the Union's assertion that "the bargaining unit is homogeneous and, therefore, all vacancies would be a likely placement opportunity for any employee." Id. at 16. The Agency notes that Proposal 15 also precludes the filling of vacant positions during the RIF notice period even with employees in the competitive area of the RIF.

Finally, the Agency argues that, by prohibiting the filling of all vacancies, Proposal 15 would preclude the Agency from reassigning or detailing employees to vacancies if a critical position becomes vacant during the RIF notice period and, thereby, would directly interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute.

2. Union

The Union contends that Proposal 15 is negotiable under Department of Energy and Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 337 (1987). The Union argues that Proposal 15 is an appropriate arrangement for employees adversely affected by a RIF.

The Union states that "[m]anagement says that [Proposal 15] should be limited to vacancies which are likely to be useful as placement opportunities." Petition at 4. According to the Union, "the bargaining unit is homogeneous. It consists entirely of 'blue collar' workers (electricians, mechanics, operators and the like) who work only in hydroelectric facilities." Id. at 4-5. The Union asserts that "any vacancy in this bargaining unit would be a likely placement opportunity for any employee affected by a reduction in force." Id. at 5. The Union states that "[t]he Agency disagrees with the Union's assertion that the bargaining unit is homogeneous and therefore that all vacancies would be a likely placement opportunity for any employee." Response at 5. The Union asserts that "this is a factual disagreement which cannot be resolved based upon an exchange of written statements of position." Id. The Union notes that the Authority's regulations provide for the holding of hearings in negotiability appeals. The Union maintains that this case is an "appropriate occasion to hold a hearing." Id. (2)

B. Analysis and Conclusions

Proposal 15 requires the Agency to suspend the filling of bargaining unit vacancies in the competitive area of employees who would be affected by a RIF, from the date of the initial RIF notice to employees to the effective date of the RIF.

The Union claims that Proposal 15 is negotiable under Department of Energy. The proposal in Department of Energy required management to suspend the filling of bargaining unit positions for which employees who would be affected by the RIF were eligible. Therefore, we conclude that Proposal 15 is intended to freeze only those unit positions for which unit employees are eligible from the date of the initial RIF notices to the effective date of the RIF. As this interpretation of the proposal is consistent with its plain wording, we will adopt it for purposes of this decision. The Union's additional statement that all unit employees are eligible for unit positions is not inconsistent with this interpretation. In our view, the Union's statement means that management may fill a unit position during the period of the freeze with a unit employee who would be qualified for that position.

The Agency contends that Proposal 15 abrogates management's rights, under section 7106(a)(2)(A) and (C) of the Statute, to hire and to fill vacant positions by making selections from any appropriate source. We interpret the Agency's contention as a claim that Proposal 15 directly and excessively interferes with management's rights under section 7106(a)(2)(A) and (C) of the Statute. We also note that the Union claims that Proposal 15 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. We find that, even assuming that the delay in filling bargaining unit positions that results from the freeze imposed by the proposal directly interferes with the Agency's rights under section 7106(a)(2)(A) and (C), Proposal 15 would nevertheless be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute because the delay would not excessively interfere with those rights. See National Treasury Employees Union and U.S. Nuclear Regulatory Commission, 43 FLRA 1279 (1992).

In particular, applying the analytical framework established in Kansas Army National Guard, we find that Proposal 15 is an arrangement. We note that the purpose of the freeze on the filling of vacant bargaining unit positions is to preserve those positions so that the positions might be filled by unit employees who would otherwise be subject to a RIF. The proposal mitigates the adverse effect of the RIF by ensuring that unit employees who would otherwise be released as a result of the RIF could be placed in vacant bargaining unit positions for which they are eligible before the Agency fills the position from another appropriate source. We conclude, therefore, that Proposal 15 is an arrangement, within the meaning of section 7106(b)(3) of the Statute, for employees adversely affected by the exercise of management's right to lay off employees under section 7106(a)(2)(A).

By preserving vacant bargaining unit positions during the RIF so that management, if it decides to fill one of those positions, may fill it with an eligible unit employee, Proposal 15 limits the Agency's ability to select from appropriate sources other than the bargaining unit until after the RIF. See, for example, Department of Energy, 24 FLRA at 481. However, Proposal 15 would provide a substantial benefit to employees. The proposal would allow employees who might otherwise be downgraded or separated to be selected for or reassigned to one of those vacant unit positions.

We find that the benefit to employees afforded by Proposal 15 is significant and that it outweighs the burden on management's rights to hire and select that would result from the proposal. Proposal 15 would preclude management from seeking applicants for unit vacancies from outside the unit during the RIF. Therefore, the burden on management's right to fill vacant bargaining unit positions would apply for a limited period and to a limited group of potential selectees--applicants who are outside the collective bargaining unit. Management would still be able to fill those vacancies during the RIF, should it decide to do so, with eligible unit employees or to fill the vacancies from any appropriate source after the effective date of the RIF. Consequently, we find that Proposal 15 does not excessively interfere with management's rights, under section 7106(a)(2)(A) and (C), to hire and to fill vacancies by selecting from any appropriate source. We conclude, therefore, that Proposal 15 is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

XII. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposal 2, Proposal 3, Proposals 5, 6, and 7, Proposal 9, the second sentence of Proposal 10, and Proposals 12 and 15.(3) The petition for review is dismissed as to Proposal 1, Proposal 8, the first sentence of Proposal 10, and Proposal 11.




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

1. The Agency withdrew its allegation of nonnegotiability as to Proposals 13 and 14. Statement of Position (Statement) at 15. In addition, the Union withdrew its negotiability appeal as to Proposal 4. Union Response to Agency's Statement of Position (Response) at 2-3. Accordingly, those proposals will not be considered in this decision.

2. We construe the Union's statement as a request for a hearing. The Union's request for a hearing is denied because there is sufficient evidence in the record on which to base a reasoned decision.

3. In finding these proposals to be n