44:1375(113)NG - - AFGE Local 1658 and Army Tank-Automotive Command, Warren, MI - - 1992 FLRAdec NG - - v44 p1375



[ v44 p1375 ]
44:1375(113)NG
The decision of the Authority follows:


44 FLRA No. 113

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1658

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ARMY TANK-AUTOMOTIVE COMMAND

WARREN, MICHIGAN

(Agency)

0-NG-1921

DECISION AND ORDER ON NEGOTIABILITY ISSUES

May 28, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of three provisions in a collective bargaining agreement that were disapproved in the course of Agency head review under section 7114(c) of the Statute.(1) The Agency filed a statement of position. The Union did not file a reply brief to the Agency's statement of position.

For the following reasons, we conclude that Provision 4, which requires the Agency to limit the length of temporary duty assignments away from an employees duty station to 15 work days, is nonnegotiable because it directly and excessively interferes with management's right to assign employees and to assign work.

Section C of Provision 7, which requires the Agency to provide advance notification to employees of overtime assignments, is a negotiable procedure. Section D of the provision, which precludes the Agency from assigning overtime that involves duties and functions that are below an employee's grade level, and section G, which prohibits the Agency from compelling employees to work overtime unless it is necessary to accomplish essential mission and function related requirements, directly and excessively interfere with the Agency's right to assign work and are nonnegotiable.

Provision 10, which requires the Agency normally to avoid assigning incidental duties to employees that are inappropriate to an employee's position and qualifications, is negotiable as an appropriate arrangement.

II. Provision 4

The maximum length of TDY [temporary duty] in CONUS [the continental United States] will be 15 work days or less for BU [bargaining-unit] employees where TDY is not a requirement of their position. Only when essential mission[-]related requirements dictate, will the maximum length of TDY be extended.

A. Positions of the Parties

1. The Agency

The Agency contends that the provision is nonnegotiable because it directly interferes with management's rights to assign employees under section 7106(a)(2)(A) of the Statute and to assign work under section 7106(a)(2)(B) of the Statute. The Agency further argues that the Union has not supported its assertion that the provision is an appropriate arrangement under section 7106(b)(3) of the Statute and that, in any event, the provision is nonnegotiable because it excessively interferes with management's rights.

More specifically, the Agency argues that the provision directly interferes with its right to assign employees by prohibiting the assignment of TDY away from a bargaining unit employee's official work station, but within the continental United States, for longer than 15 work days if such an assignment is not a requirement of the employee's position and is not necessitated "by essential mission related requirements." Statement of Position at 2. In support, the Agency cites various Authority decisions for the proposition that limitations on the duration of an assignment directly interfere with management's right to assign employees. The Agency claims, for example, that limiting the duration of a TDY to 15 days would prevent the Agency from assigning an employee with unique qualifications needed at another location unless the conditions set forth in the provision are met.

The Agency also argues that the provision directly interferes with its right to assign work. By way of example, the Agency asserts that it could not assign training involving TDY for more than 15 days unless an employee so assigned had a TDY requirement in his or her job position or the training was related to an essential mission requirement. The Agency estimates that, in its Tank-Automotive Command, it has only 1,500 employees with a TDY job requirement and, consequently, it would be prohibited under the provision from assigning TDY training lasting over 15 work days to the 4,000 other employees in this command. Thus, the Agency asserts that the limited conditions under which it could assign TDY in excess of 15 days do not negate the provision's interference with management's rights.

With respect to its contention that the provision excessively interferes with its rights to assign employees and to assign work, the Agency argues that the provision would completely prevent the Agency from assigning TDYs in excess of 15 days unless the provision's requirements are met. The Agency claims that the provision here is similar to a provision in Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 139-41 (1988), that sought to limit the duration of details within a calendar year and was found to excessively interfere with the rights to assign employees and assign work. The Agency further asserts that the Union did not explain how the provision would ameliorate any negative effect on employees, but assuming that the negative effect is that employees would be away from their homes, that effect would be outweighed by providing employees with career enhancing training. The Agency claims that there is no economic hardship on employees resulting from TDY assignments because the Agency pays the employees' food, lodging, and travel expenses while they are on TDY. Thus, the Agency argues that the benefits to be derived from limiting travel for employees, as contemplated by the provision, is clearly outweighed by the effect on management of being unable to assign TDY to employees for periods longer than 15 work days.

2. The Union

As previously noted, the Union did not file a response to the Agency's statement of position. In its petition for review, the Union defines TDY as "temporary duty encompassing travel away from the employee's permanent duty location." Petition for Review at 3. The Union also states that it intends for the second sentence of the provision to be "conjunctive to the first sentence[,]" and apply only in instances where TDY lasting more than 15 work days is assigned to an employee "whose position does not include TDY as a position requirement." Id. The Union also states, generally, that any provision that the Authority finds directly interferes with a management right should be considered as an appropriate arrangement.

B. Analysis and Conclusions

We conclude that Provision 4 is outside the duty to bargain because it directly and excessively interferes with management's rights to assign employees and to assign work.

1. The Provision Directly Interferes with the Agency's Rights to Assign Employees and to Assign Work

The Authority previously has held that proposals or provisions that limit the duration of work assignments or details directly interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute. See, for example, National Treasury Employees Union and United States Customs Service, 31 FLRA 31, 33-34 (1988) (Customs); American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA 493, 510-14 (1987). As the Authority stated in Customs, "[t]he right to decide when an assignment should begin and end is inherent in the right to assign employees under section 7106(a)(2)(A)." 31 FLRA at 33. Provision 4 would prevent the Agency from making temporary duty assignments in excess of 15 days unless TDY was a requirement of an employee's position or essential mission-related requirements were present to support a lengthier TDY assignment. On all other occasions, however, the Agency would be limited to making TDY assignments of 15 days or less. Under these circumstances, we find that the provision directly interferes with management's right to assign employees.

The Authority also has found that proposals that preclude management from determining the duration of work assignments directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, International Association of Fire Fighters, Local F-159 and U.S. Department of the Navy, Naval Station Treasure Island, San Francisco, California, 37 FLRA 836, 837-38 (1990); American Federation of Government Employees, National Council of Field Labor Locals, Local 644 and U.S. Department of Labor, Office of the Assistant Secretary, Philadelphia, Pennsylvania, 37 FLRA 828, 832-33 (1990). Provision 4 would limit the duration of TDY unless certain conditions were met and, therefore, directly interferes with the exercise of management's right to assign work as well.

2. The Provision Does Not Constitute an Appropriate Arrangement

A provision that directly interferes with management's rights under section 7106(a) of the Statute is negotiable if it constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. To determine whether a proposal constitutes an appropriate arrangement, we determine whether the provision is: (1) intended to be an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986).

The Union merely asserts that if the Authority finds that any of the disapproved provisions, including Provision 4, interfere with a management right, the disapproved provision is intended as an appropriate arrangement. We find that, as the provision constitutes an attempt to limit the duration of a work assignment involving travel within the continental United States, it is intended as an arrangement for employees who are adversely affected by the exercise of management's rights to assign employees and to assign work where those assignments involve TDY of more than 15 work days.

We further find, on balance, that the provision excessively interferes with management's rights. Initially, we note that the Union has failed to create a sufficient record on which the Authority can assess the benefits to employees that are to be derived from the provision. It is well established that parties bear the burden of creating a record upon which the Authority can make a negotiability determination and that a party acts at its peril when it fails to do so. See, for example, National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Western Region, 42 FLRA 964, 976-77 (1991). It is apparent from the provision, however, and the Agency notes, that there are benefits to employees from limiting the duration of TDY assignments. For example, employees' personal lives would be less disrupted by shorter TDY assignments. On the other hand, the Agency would be precluded from assigning TDY in excess of 15 work days to bargaining unit employees who do not have TDY as one of their job requirements and where essential mission-related requirements were not present. Thus, the Agency would be precluded from assigning employees who, in the Agency's view, possessed the skills and qualifications necessary for a particular TDY assignment if that assignment were to last longer than 15 work days, unless the provision's prerequisites were met. We view the intrusion on the Agency's ability to assign employees and to assign work as outweighing any benefits that would inure to employees under the provision. Consequently, we conclude that Provision 4 is not an appropriate arrangement.

III. Provision 7

C. In the assignment of overtime on days outside the basic workweek, the EMPLOYER agrees except in cases of mission[-]related emergencies, to notify the affected employee no later than the start of his scheduled lunch period on the next to the last day of the basic work week.

D. Except for EMPLOYER mission[-]related emergencies, BU employees should not be required to work overtime for the purpose of performing duties and functions below their grade levels.

. . . .

G. Overtime shall not be compulsory except in case of EMPLOYER mission[-]related requirements necessary to accomplish essential mission and function.

A. Positions of the Parties

1. The Agency

The Agency asserts, generally, that the provision prohibits the assignment of overtime except in those instances where such an assignment is necessitated by "mission[-]related emergencies" or "mission[-]related requirements necessary to accomplish essential mission and function." Statement of Position at 8. As such, the Agency argues that the provision directly interferes with its right to determine "when and what work will be performed during overtime, except when certain conditions exist." Id.

More particularly with regard to section C, the Agency asserts that this portion of the provision would restrict management from assigning overtime unless employees were notified of the assignment no later than the beginning of their scheduled lunch period on the next to the last day of their basic work week or there was a mission-related emergency. The Agency distinguishes this section from Proposal 3 in American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400 (1987) (Veterans Administration Medical Center), which provided for 2 days of advance notice of overtime and provided also that any overtime not so scheduled would be considered emergency overtime. The Agency notes that the Authority found that Proposal 3 in Veterans Administration Medical Center permitted management to assign overtime without providing notice 2 days in advance. In this case, the Agency argues that "there is no similar out." Statement of Position at 9. The Agency argues that, except where overtime is necessitated by a mission-related emergency, management is prohibited from assigning overtime if the notice described in the provision is not provided.

The Agency argues that section D prohibits the assignment of overtime work in instances "where the duties and functions are below the employee['s] grade level, unless there is a mission related emergency." Id. at 9. The Agency argues that this section is essentially similar to Proposal 4 in Veterans Administration Medical Center, which was found nonnegotiable because it would have restricted the assignment of lower graded duties to higher graded employees, while on overtime, unless there were no lower graded employees available. The Agency argues that the restriction in section D is the same in that overtime could not be assigned in certain circumstances.

Finally, the Agency argues that section G is equivalent to Proposal 2 in National Federation of Federal Employees, Council of Consolidated Social Security Administration Locals and Social Security Administration, 13 FLRA 422 (1983), which was found nonnegotiable because it would have prevented the assignment of mandatory overtime except in emergency situations. The Agency argues that section G prescribes the same restriction on the assignment of overtime. The Agency also argues that section G is almost identical to Proposal 5 in Veterans Administration Medical Center, which prevented the assignment of emergency overtime except when official requirements had to be met and which was found nonnegotiable. On this same basis, the Agency argues that the Authority should find that section G is nonnegotiable.

2. The Union

The Union argues, generally, that nothing in the disputed language interferes with any management right, but that if there is any interference, the language constitutes an appropriate arrangement. With regard to section C, the Union states that the notice requirement refers to "the work week immediately prior to the administrative work week in which the assigned overtime is to occur." Petition for Review at 3-4. With respect to the remainder of the provision, the Union maintains that "the disputed language has its facial meaning." Id. at 1.

B. Analysis and Conclusions

We find that section C is negotiable. However, we find that sections D and G directly and excessively interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and are nonnegotiable.

1. Section C

This section of the provision requires the Agency to provide notification to employees of overtime assignments outside the basic work week no later than the start of an affected employee's lunch period on the next to the last day of the preceding basic work week. Contrary to the Agency's assertion, we find that section C does not interfere with the Agency's right to assign work. The section is simply designed to provide notice to employees of the overtime assignments that are scheduled to occur outside the basic work week. When such notice is not provided, section C permits the assignment of overtime in cases of mission-related emergencies. In this manner, section C is comparable to a negotiable proposal in Veterans Administration Medical Center, 30 FLRA at 402-03, in which the Authority found that overtime not scheduled 2 days in advance could be assigned as emergency overtime. Section C similarly provides for the assignment of overtime on an emergency basis where the notice requirement is not satisfied.

We also find it noteworthy that the Agency has not claimed that it would be unable to provide the requisite notice or that the determination of what constitutes a mission-related emergency would be proscribed in any way. Moreover, there is no indication in either the language of the provision or the Union's explanation to suggest that the provision was designed to permit employees to refuse overtime assignments made without sufficient notice. Finally, there is nothing in either the provision or the record to suggest that the Agency would be limited in any manner from assigning overtime work because it was unaware of the need for overtime sufficiently in advance to enable it to provide the requisite notice. Consequently, as the Agency has not established that section C would prevent management from assigning work, we find that it is a negotiable procedure.

2. Sections D and G

Section D provides that, except for mission-related emergencies, bargaining unit employees will not be required to work overtime for the purpose of performing duties and functions below their grade levels. Section G provides that, except in cases of mission-related requirements that are necessary to accomplish the Agency's essential mission and function, overtime will not be compulsory. The Agency claims that these sections are comparable to provisions that were found nonnegotiable in Veterans Administration Medical Center. The Union merely states that these sections have their facial meaning.

The Authority has held that the right to assign work includes the right to determine the particular qualifications and skills needed to perform the work and to make judgments as to whether a particular employee meets those qualifications. See, for example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 513, 519 (1990). The right to assign work encompasses work which is performed on overtime. See, for example, American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1040-42 (1988), rev'd as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989). Section D would prevent the assignment of overtime work to bargaining unit employees where such work is below an employee's grade level, unless a mission related emergency exists. The section would condition the assignment of certain duties and functions to bargaining unit employees solely on the existence of a mission-related emergency. Thus, this section would deprive management of the right to assign lower graded work to unit employees, except in cases of emergency, without regard to unit employees' qualifications to perform designated tasks.

As the Agency notes, this section is comparable to a proposal found nonnegotiable in Veterans Administration Medical Center, 30 FLRA at 403-04, which would have conditioned the exercise of management's right to assign overtime on the availability of lower or higher graded employees. Although the condition prescribed in section D is the existence of a mission-related emergency, rather than the availability of employees at other grade levels, the restriction imposed on the Agency's right to assign work warrants the same conclusion. See also American Federation of Government Employees, AFL-CIO, Local 2024 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 30 FLRA 650, 652-54 (1987) (Portsmouth Naval Shipyard) (proposal that higher graded employees not be assigned overtime work normally performed by lower graded employees held to directly and excessively interfere with the right to assign work). Consequently, we find that section D directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

As to section G of the provision, we find that it is essentially identical to the first sentence of Proposal 5 in Veterans Administration Medical Center, 30 FLRA at 405, which we found nonnegotiable. Proposal 5 provided, in part, that emergency overtime would not be compulsory except when official time requirements had to be met. The Authority found that the proposal prevented management from requiring employees to work overtime in all but one circumstance and, therefore, was outside the duty to bargain. Similarly, section G would prohibit management from requiring employees to work overtime unless it was necessary to accomplish essential mission-related requirements. Consequently, based on Veterans Administration Medical Center, we find that section G directly interferes with the Agency's right to assign work.

Next, we address whether sections D and G are negotiable as appropriate arrangements. It is apparent that these sections are designed to ameliorate the adverse effects of the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 672 (1991) (Department of Memorial Affairs) (Authority rejected agency contention that there were no adverse effects flowing from the assignment of overtime). Consequently, we find that these sections are intended as arrangements. We further find, however, after balancing the competing interests of the Agency in assigning work on an overtime basis, and of the employees in limiting such assignments, that these sections excessively interfere with the exercise of management's right to assign work.

As we stated above, inherent in the Agency's exercise of the right to assign work is the ability to determine which employees possess the necessary skills and judgment to perform prescribed duties. Section D, as a general matter, would prevent the Agency from assigning lower graded duties to bargaining unit employees who might be better qualified to perform such duties, unless a mission-related emergency exists. Although the employees would benefit by not being required to perform work attendant to lower graded duties, we view the intrusion on the exercise of management's right to assign work as outweighing any benefits inuring to employees under the section. See also Portsmouth Naval Shipyard, 30 FLRA at 654. Similarly with respect to section G, we view the Agency's ability to require employees to perform overtime assignments, except for mission-related requirements that are essential to accomplish an essential mission and function, as seriously impaired by the provision. Again, although employees would benefit from not being required to perform duties on an overtime basis, we find that the burden imposed on management outweighs the benefits to employees under the section. See also International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 120 (1987) (portion of Provision 8 stating that no employee would be required to work overtime on a compulsory basis except when unusually heavy workloads exist found to excessively interfere with management's right to assign work).

In sum, we conclude that section C is a negotiable procedure. Sections D and G are nonnegotiable because they excessively interfere with the Agency's right to assign work.

IV. Provision 10

In so far [sic] [as] possible, for other duties as assigned, incidental duties which are inappropriate to an employee's position and qualifications normally will be avoided by the Employer.

A. Positions of the Parties

1. The Agency

The Agency argues that the provision interferes with its right to assign work. In support, the Agency states that the provision is "almost identical" to Provision 8 in American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172 (1987) (Chairman Calhoun concurring) (Fort Rucker), which would have precluded management from assigning incidental duties to employees that were inappropriate to their positions and qualifications. The Agency states that the Authority found that Provision 8 in Fort Rucker was nonnegotiable because it directly interfered with management's rights to assign work by precluding it from assigning certain duties to specific employees. The Agency states that the Authority considered the qualifying language "insofar as possible" but found that it did not remove the limitation on management's right to assign work. The Agency further notes that the Authority has found nonnegotiable proposals that contained wording such as "normally" and "insofar as possible" because they imposed substantive conditions on the exercise of management's reserved right to assign work under section 7106(a)(2)(B) of the Statute.

2. The Union

The Union states that the provision has "its facial meaning." Petition for Review at 1, 4. Additionally, the Union generally argues that there is no direct interference with a management right but that, if one exists, the provision constitutes an appropriate arrangement.

B. Analysis and Conclusions

Provision 10 directly interferes with management's right to assign work. However, the provision constitutes a negotiable appropriate arrangement.

Proposals that restrict an agency's ability to assign particular duties to employees directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, National Federation of Federal Employees, Local 1655 and Department of Military Affairs, Illinois Air National Guard, 35 FLRA 815, 816-20 (1990) (proposals that restricted and/or imposed conditions on the assignment of certain work to technicians found to directly interfere with the right to assign work). Provision 10 would prevent the Agency from assigning incidental duties to an employee if those duties are not appropriate for that employee's position or qualifications. Although the provision conditions the assignment of such duties by including the terms "in so far [sic] [as] possible" and "normally," we do not view such language as warranting a different result. As noted by the Agency, the provision, including the qualifying language, is virtually identical to Provision 8 in Fort Rucker, which the Authority found nonnegotiable. That provision would have required the agency to ensure, insofar as possible, that employees not perform duties that were inappropriate to their positions and qualifications. The Authority found that the use of the qualifying language did not remove the limitation on the exercise of management's right to assign work. Similarly, use of that term here, as well as the term "normally," does not eliminate the restrictions imposed on the Agency's right to assign work. Consequently, by imposing certain conditions on the Agency's ability to assign duties to employees, Provision 10 directly interferes with the right to assign work.

However, we further find that the provision constitutes a negotiable appropriate arrangement. In Fort Rucker, the Authority was not presented with the question of whether the provision was an appropriate arrangement. Recently, however, the Authority has found that proposals that qualified the assignment of overtime or particular duties, for example, although directly interfering with the right to assign work, were negotiable appropriate arrangements. See Department of Memorial Affairs, 40 FLRA at 671-74 (provision that overtime normally will be scheduled in 8 hour blocks); Overseas Education Association and Department of Defense Dependents Schools, 39 FLRA 153, 164-65 (1991) (proposals that agency make every reasonable effort to obtain volunteers and funding to hire lunchroom monitors and to assign the task of monitoring to aides instead of unit employees).

Provision 10 provides that, "in so far [sic] [as] possible" the Agency will normally avoid the assignment of incidental duties that are inappropriate to the employee's position and qualifications. Initially, we find that, by seeking to restrict the assignment of duties that employees do not normally perform, the provision attempts to limit the situations where employees will lack the necessary skills or knowledge to perform assignments or where they may have to neglect their regular work in order to perform unfamiliar tasks. Accordingly, we conclude that Provision 10 constitutes an arrangement for employees adversely affected by the exercise of management's right to assign work.

We also find that the arrangement is appropriate. In terms of the benefits to employees, the provision would offer some degree of assurance that employees would not be expected to perform duties that are inappropriate to their positions or qualifications. Requiring the Agency to avoid making such assignments, where possible, is reasonable in light of the fact that employees would not be required to perform duties with which they may not be familiar or for which they have not been provided adequate training. Consequently, as a general matter, the employees will not be evaluated based on their performance of unfamiliar work, and they will have more time to devote to perfecting their regular assignments. On the other hand, the Agency's ability to assign work would not be seriously impaired as a result of adherence to the provision. Although the Agency would have to take appropriate action to avoid making incidental work assignments to employees, the restriction imposed on the Agency's right to assign work is limited, inasmuch as the provision would not prohibit the work assignments in all instances. For example, if the Agency were to determine that a particular employee is the most qualified or best suited to perform certain incidental duties, such a determination would satisfy the requirement that assignments be avoided "in so far [sic] [as] possible." In other words, where the Agency could not reasonably avoid making certain work assignments to certain employees, the Agency would retain the ability to make such assignments.

In view of the substantial benefits afforded to employees and because the provision preserves the Agency's ability to assign incidental duties where such assignments cannot be avoided, we conclude, on balance, that Provision 10 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

V. Order

The Agency shall rescind its disapproval of section C of Provision 7 and Provision 10.(2)

The petition for review of Provisions 4 and sections D and G of Provision 7 is dismissed.




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

1. In an Order dated November 27, 1991, the parties were directed to advise the Authority as to which provisions remained in dispute. In its response to this order, the Union withdrew its appeal as to Provisions 1, 3, 8, 9 and 12. The Agency acknowleged that these provisions were no longer in dispute and also claimed that Provisions 2 and 6 were no longer in dispute. Although the Union took the position that Provisions 2 and 6 are still in dispute, the Agency's statement of position contains a clear withdrawal of the allegations of nonnegotiability as to those two provisions. Additionally, in response to the Authority's Order, the Agency stated that it would withdraw its allegations of nonnegotiability with respect to Provisions 5 and 11 if the Union agreed to a particular interpretation of the provisions. The Union objected to the Agency's "conditional disapproval" of the provisions but agreed that its intent was consistent with the Agency's interpretation of the provisions. Union's Supplemental Submission at 2. Therefore, Provisions 5 and 11 are no longer in dispute. Accordingly, Provisions 1, 2, 3, 5, 6, 8, 9, 11 and 12 are not before us and we will no