45:0339(30)NG - - NTEU and Treasury, Bureau of Alcohol, Tobacco and Firearms - - 1992 FLRAdec NG - - v45 p339
[ v45 p339 ]
45:0339(30)NG
The decision of the Authority follows:
45 FLRA No. 30
Before Chairman McKee and Members Talkin and Armendariz. 1/
I. Statement of the Cases
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of 16 provisions of a negotiated agreement that were disapproved by the Agency head under section 7114(c) of the Statute.2/ For the reasons that follow we conclude:3/
Provisions 1 and 5, which concern travel, per diem, and official time for employees and Union officials to attend meetings for the purpose of an oral reply to the proposed termination of a probationary employee, do not establish procedural protections for probationary employees as asserted by the Agency. Therefore, they are negotiable. Provisions 2 and 6, which concern the release of employees and Union representatives from their duties to use official time, are negotiable.
Provision 3, which allows a 15 minute forum at formal training sessions for the purpose of allowing the Union to address employees, is nonnegotiable because it excessively interferes with management's right to assign work and does not constitute an appropriate arrangement. Provision 4, which permits the use of official time by Union representatives to prepare and maintain reports required by Federal agencies, is not inconsistent with section 7131(b) of the Statute and is negotiable. Provision 7, which provides for attendance at Union-sponsored training on official time, is negotiable.
Provision 8, which requires that all applicants for bargaining unit positions be evaluated against the same criteria, does not interfere with management's right to make selections from appropriate sources under section 7106(a)(2)(C) and is negotiable. Provision 11, which requires that the Agency make efforts to reassign an ill or injured employee, is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
Provisions 12 and 14, which require the Agency to provide the Union with a meeting room and a file cabinet, are not inconsistent with 5 C.F.R. § 735.205 and are negotiable. Provisions 15, 16 and 18, which concern the granting of annual leave, excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and are not negotiable. Provision 17, which concerns the granting of annual leave or leave without pay to Union officers for attendance at Union-sponsored conventions and meetings, excessively interferes with management's right to assign work and is not negotiable.
We dismiss the petition as to section 2 of Provision 21 because the record does not permit a determination of whether it is negotiable. We dismiss the petition as to section 3 of Provision 21 based on procedural grounds.
II. Provisions 1 and 5
Article 3 Employee RightsSection 10
A. A directly affected employee will be granted travel and per diem, reasonable official time to travel, and official time to participate in the following activities:
4. attending meetings for the purpose of presenting an oral reply to a proposed termination of a probationary employee,
if the employee is still on the rolls of the Employer[.]
[Provision 5] Article 6 - Union Stewards
Section 3 D.
1. At the Union's option, one of the following Union officials, i.e., Steward, Chief Steward, or Chapter President will receive reasonable official time to be present at discussions with the Employer concerning conditions of employment related to employees of the unit. Such discussions are limited to:
b. meetings for the purpose of presenting replies to proposed termination of probationers[.]
[Only the underscored portion of this latter provision is in dispute.]
A. Positions of the Parties
The Agency contends that these two provisions grant procedural rights to probationary employees by allowing official time, travel, and per diem for the purpose of attending meetings at which an oral reply to a proposed termination of a probationary employee is presented. The Agency argues that under Authority precedent, only the Office of Personnel Management (OPM) can provide procedural protections for probationary employees and such protections cannot be established through collective bargaining. As an example, the Agency cites American Federation of Government Employees, AFL-CIO, Local 1625 and Non-appropriated Fund Instrumentality, Naval Air Station, Oceana, Virginia, 31 FLRA 1281, 1285-88 (1988). The Agency asserts that under OPM regulations probationers who are advised that they are being terminated based on deficiencies in performance or conduct after entrance on duty are given no right to reply. The Agency contends that these two provisions would provide employees with more procedural protections than OPM regulations provide and, therefore, that they are nonnegotiable.
The Union asserts that these provisions do not accord probationers a right to an oral reply and do not establish any procedural protections for probationers. Rather, the Union contends that the provisions merely grant official time, travel, and per diem in the event that the Agency permits such a reply. Thus, the Union contends that these provisions would be effective only if the OPM regulations change or the Agency permits an oral reply of its own accord, with the permission of OPM if necessary.
B. Analysis and Conclusions
As the Agency points out, the Authority has held that in enacting the Statute, Congress did not intend that procedural protections for probationary employees be established through collective bargaining. For example, National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois, 39 FLRA 848, 852 (1991). OPM, rather than the FLRA, has been designated to implement the probationary program and provide whatever procedural protections are necessary for probationary employees. For example, id.
As the Union explains, these provisions are limited to authorizing official time, travel, and per diem in circumstances where an oral reply to a proposed termination of a probationary employee is permitted under OPM regulations or becomes permissible under OPM regulations. The Union's statement of intent is consistent with the wording of the provisions and we adopt it for purposes of this decision. Based on this interpretation, Provisions 1 and 5 do not establish a right to make an oral reply. Thus, these provisions do not establish any procedural protections for probationary employees, and we reject the Agency's claim that they do.
We note that OPM has provided procedural protections for probationers who are terminated based on unsatisfactory performance or conduct after appointment that differ from those provided for probationers who are terminated based on conduct before appointment. 5 C.F.R. § 315.804-315.805; Federal Personnel Manual (FPM) chapter 315, subchapter 8-4. The former group "is not given a right of reply." FPM chapter 315, subchapter 8-4(a)(3). The latter group is entitled to "the right to reply." FPM chapter 315, subchapter 8-4(b)(1). Also, as to the latter group, OPM has provided that they are "not entitled to an examination of witnesses nor to a trial or hearing, except at the discretion of the employing agency." FPM chapter 315, subchapter 8-4(b)(4). We find that this last provision permits the Agency to allow an oral reply where the termination of a probationer is based on conduct before appointment. Consequently, we conclude that in some circumstances an oral reply to a proposed termination of a probationary employee is permissible under OPM regulations.
Because these provisions are limited to providing official time, travel, and per diem only in circumstances where an oral reply is otherwise legally permissible, they are distinguishable from Proposal 7 in National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, 41 FLRA 1158 (1991). Unlike these two provisions, Proposal 7 allowed for use of official time without regard to the fact that the purpose for which the time was sought was inconsistent with an applicable regulation.
Based on the foregoing, we conclude that Provisions 1 and 5 are within the duty to bargain.
III. Provisions 2 and 6
Article 3 Employee RightsSection 10
1. If an employee wishes to meet with the Union, the employee will request permission from his/her supervisor. Such a request will normally be granted if no substantial workload disruption would result. If the request is denied, the supervisor and the employee will endeavor to reach a mutually agreeable time for the meeting. If postponement of the meeting directly affects an employee's ability to meet a filing deadline on a grievance or other action, the deadline shall be extended to the extent of the delay.
[Only the underscored portion is in dispute.]
[Provision 6] Article 6 - Union Stewards
Section 3 F.
1. A Steward, Chief Steward, or Chapter President wishing to perform representational
functions during duty hours will check with his/her immediate supervisor and will be released absent a severe workload disruption. If a request is denied due to work requirements, the supervisor will explain the reasons and will indicate when he/she will grant the request. If the request is denied, any deadline impacted by the denial will be extended to accommodate the delay.
[Only the underscored portion is in dispute.]
A. Positions of the Parties
The Agency asserts that these provisions are inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute and are, for that reason, nonnegotiable. The Agency contends that the right to assign work encompasses the right to determine when the work assigned will be performed. The Agency argues that these two provisions are to the same effect as Provision 5 in American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172 (1987) (Fort Rucker), which required an agency to grant an employee's request for leave absent compelling workload requirements and was nonnegotiable because it "nullified management's ability to determine when assigned work would be performed . . . . " Agency's reply brief at 3.
The Union contends that Provision 5 in Fort Rucker, which concerned annual leave, is distinguishable from Provisions 2 and 6 in this case, which concern official time. Rather, the Union contends that Authority precedent that holds that section 7131 of the Statute carves out an exception to management's right to assign work is dispositive of these two provisions. The Union cites Military Entrance Processing Station, Los Angeles, California, 25 FLRA 685 (1987) (Military Entrance Processing Station), in support of this contention.
The Union argues that if the Agency is allowed to determine unilaterally when and if an employee can contact a Union representative, it could effectively deny an employee his or her right under section 7102 of the Statute to engage in collective bargaining. The Union also maintains that allowing the Agency unilateral control over the release of a Union representative from his or her assigned duties to perform representational duties would undermine statutory rights granted under section 7102 of the Statute. The Union contends that allowing the Agency unilateral control over the use of official time would place the Agency in the position of being able to dominate the Union in violation of section 7116(a)(3) of the Statute and could result in situations in which the Union would be vulnerable to allegations that it had failed in its duty of fair representation.
In the alternative, the Union contends that these two provisions constitute appropriate arrangements that are negotiable under section 7106(b)(3) of the Statute. The Union argues that under the analytical framework for determining whether a proposal constitutes an appropriate arrangement, which was set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), these provisions are negotiable. The Union asserts that the impact on employees of being denied their right to full and adequate representation is substantial. The Union contends that the Agency alone controls whether it will allow a meeting or when it will take action that aggrieves an employee and, therefore, that employees have little control over the circumstances leading to the adverse impact. The Union argues that the standards set forth in the disputed portions of the provisions allow the Agency to meet its work assignment needs with only minor impact. The Union asserts that under the provisions, if the Agency "cannot make do without the representative or employee, if no alternative staff is available and if external deadlines must be met, it can delay the meeting or deny the request." Union's reply brief at 9. The Union contends that the balance of Union and employee rights against management rights "must fall in favor of employees and the Union." Id. Finally, the Union asserts that the Agency has not shown how these provisions interfere with the efficient and effective operation of the Agency. The Union states that "[t]hese proposal [sic] have been in effect in the [Agency] contract since it was first negotiated" and the Agency has not offered "a single incident to indicate there has been a problem." Id. at 9-10.
B. Analysis and Conclusions
In Military Entrance Processing Station, the Authority reexamined the relationship between management's right to assign work under section 7106(a)(2)(B) and the authorization to negotiate official time for representational purposes under section 7131(d) of the Statute. The Authority noted that Congress provided in section 7131(d) that agencies and unions should jointly determine through negotiations the amount of official time that will be available to employees during any given time period that is "reasonable, necessary, and in the public interest." The Authority also noted that the U.S. Court of Appeals for the District of Columbia Circuit had stated that "[u]nless section 7131(d) carves out an exception to section 7106(a), section 7106(a) would preclude any negotiation of official time provisions, since official time always affects an agency's ability to assign work." American Federation of Government Employees, AFL-CIO, Council of Locals No. 214 v. FLRA, 798 F.2d 1525, 1530-31 n.8 (D.C. Cir. 1986) (AFGE v. FLRA). Therefore, the Authority held that "the use of official time under section 7131(d)--that is, its amount, allocation and scheduling--is negotiable absent an emergency or other special circumstances . . . ." Military Entrance Processing Station, 25 FLRA at 689.
Based on that theory, the Authority found negotiable provisions that, similar to Provisions 2 and 6, required agencies to grant requests by employees and union representatives to engage in representational activity on official time, absent certain work-related exceptions. For example, American Federation of Government Employees, AFL-CIO, Local 2354 and Department of the Air Force, HQ 90th Combat Support Group, F.E. Warren Air Force Base, Wyoming, 30 FLRA 1130 (1988) (Provisions 1 and 2).
More recently, the Supreme Court issued a decision that bears on the relationship between section 7106 and other portions of the Statute. In Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922 (1990) (IRS v. FLRA), the Court rejected the Authority's position that section 7106 did not supersede section 7121 of the Statute. In its decision the Court stated:
The FLRA's position is flatly contradicted by the language of § 7106(a)'s command that 'nothing in this entire chapter'--i.e., nothing in the entire Act--shall affect the authority of agency officials to make contracting-out determinations in accordance with applicable laws. Section 7121 is among the provisions covered by that italicized language. [Emphasis in original.]
494 U.S. at 928.
In our view, Congress intended by section 7131(d) of the Statute to authorize unions to negotiate over the use of official time for representational activity. However, the breadth and effect that the Court has ascribed to the phase "nothing in this chapter," which appears in section 7106(a) of the Statute, requires us to reconsider our previous conclusion that section 7131(d) carves out an exception to section 7106(a). A strict reading of the Court's decision in IRS v. FLRA leads to a conclusion that section 7131(d) does not override section 7106(a) of the Statute and, thus, that any proposals concerning official time that are negotiated under section 7131(d) are subject to section 7106(a).
We are mindful, however, that an elementary rule of statutory construction is that effect must be given to every word, clause, and sentence of a statute so that no part is rendered inoperative or insignificant. See, for example, United States v. Menasche, 348 U.S. 528, 538-39 (1955) ("It is our duty 'to give effect, if possible, to every clause and word of a statute,' Inhabitants of Montclair Tp. v. Ramsdell, 107 U.S. 147, 152 . . . rather than to emasculate an entire section, as the Government's interpretation requires."). As recognized by the Court of Appeals for the District of Columbia Circuit in AFGE v. FLRA, subordinating section 7131(d) to section 7106(a) of the Statute would effectively void section 7131(d). Accordingly, as the agency charged with the duty of enforcing the Statute, and of harmonizing its provisions, we read IRS v. FLRA to apply to situations where according predominance to the rights established by section 7106 can be achieved without eviscerating another provision of the Statute. Such was the case in IRS v. FLRA, which narrowed the scope of negotiation involving the grievance procedure but did not render section 7121 of the Statute inoperative.4/ Sections 7106 and 7131(d) cannot be reconciled in such a manner. Therefore, we will continue to carve out an exception to section 7106 in order to maintain the negotiability, where otherwise warranted, of matters involving official time.
The Union argues, as an alternative to carving out an exception to section 7106 of the Statute, that these provisions should be found negotiable as appropriate arrangements under section 7106(b)(3). In view of the Union's argument and as the effect, if any, of IRS v. FLRA on the carve-out theory is one of first impression, we will consider the Union's argument that these provisions constitute appropriate arrangements. We note that section 7106(a) is itself subject to section 7106(b), which authorizes negotiations over procedures that management will observe in exercising its management rights and appropriate arrangements for employees affected by the exercise of management's rights.5/ Therefore, under section 7106 as a whole, a provision or proposal that directly interferes with section 7106(a) may nevertheless be negotiable by operation of section 7106(b)(3), which addresses the negotiation of appropriate arrangements. American Federation of Government Employees, AFL-CIO, Local 2782 v. FLRA, 702 F.2d 1183 (D.C. Cir. 1983) (AFGE, Local 2782 v. FLRA). Accordingly, until we receive further guidance from the courts on this issue, where it is asserted that a provision seeking to negotiate over official time under section 7131 is inconsistent with section 7106, we will analyze such provisions to determine whether the provision directly interferes with management's rights under section 7106 and whether it constitutes an appropriate arrangement that is negotiable pursuant to section 7106(b)(3).6/
Here, the Agency asserts that Provisions 2 and 6 are inconsistent with management's right to assign work under section 7106(a)(2)(B). Provisions 2 and 6 establish the circumstances under which employees and Union representatives will be released from their duties for purposes of meeting with the Union or performing representational functions. The provisions effectively require release upon request absent, in the case of employees, a substantial workload disruption or, in the case of Union representatives, a severe workload disruption.
The right to assign work encompasses the right to determine when work that has been assigned will be performed. See, for example, National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 670 (1991) (VAMC, Department of Memorial Affairs). Applying this principle, the Authority has found that proposals that require an agency to grant leave to an employee or place restrictions on an agency's ability to deny leave without regard to the agency's need for the employee's services during the period covered by the request directly interfere with the right to assign work. See, for example, National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1126-27 (1991) (Army Information Systems Command); American Federation of Government Employees, AFL-CIO, Local 2263 and Department of the Air Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580, 583-85 (1984). Applying this principle, we also have found that proposals that require an agency to provide employees with time during their hours of duty to clean up directly interfere with management's right to assign work because they preclude the assignment of other types of work during the specified period. See, for example, National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, Illinois Air National Guard, 35 FLRA 740 (1990) (Illinois Air National Guard). It follows that Provisions 2 and 6 directly interfere with management's right to assign work because they place restrictions on the Agency's ability to deny a request that an employee be excused from performing assigned duties for the period covered by the request.
The Union contends that Provisions 2 and 6 constitute appropriate arrangements negotiable under section 7106(b)(3) of the Statute. To determine whether these provisions are negotiable under section 7106(b)(3), we initially must determine whether they constitute arrangements within the meaning of that section. To do that, we must ascertain whether these provisions seek to address or compensate for the adverse effects on employees produced by the exercise of management rights. See KANG, 21 FLRA at 31.
The management rights that are set forth in section 7106 of the Statute cover a broad range of matters that affect fundamental working conditions of employees. Those rights vest agency management with the authority to take actions that can result in effects on bargaining unit employees that are adverse in nature. See Overseas Education Association, Inc. v. FLRA, 876 F.2d 960 (D.C. Cir. 1989) (OEA v. FLRA) (section 7106(b)(3) authorizes negotiation of appropriate arrangements for employees adversely affected by the exercise of any of the management rights set forth in section 7106). Where management action adversely affects employees, collective bargaining is one of the processes provided by Congress to which "disgruntled employees may . . . resort." Id. at 970. For example, section 7106(b)(3) of the Statute allows employees who have been adversely affected by the exercise of management rights to "combine their views and their voices in a concerted responsive effort[]" in an attempt to ease the impact of such management actions. Id. at 971. Crucial to the efficacy of any concerted, responsive effort is the ability of employees to seek and receive the assistance of their collective bargaining agent, i.e., their union. Concerted, responsive efforts will not be limited to the negotiation of appropriate arrangements but necessarily will include an assortment of representational activities. The use of official time that is authorized under section 7131(a) and (d) is an integral part of the representational process involved in such efforts.
These provisions establish the conditions under which either employees who wish to meet with their Union representatives or specified Union representatives who wish to perform representational functions will be released from their normal duties to engage in labor-management activity on official time that is authorized under section 7131(d) of the Statute. The weight of our case law suggests that the need of an employee to meet with a union representative or of a union representative to perform representational functions generally will be related to some action taken, or proposed, by management in the context of its management rights. Thus, the representational activity generally will seek to ease the effect of such actions. It follows that the ability of employees and their union representatives to engage in such activities is essential to their ability to obtain some mollification of the adverse effects that can flow from the numerous management actions covered by section 7106 of the Statute. We conclude that these provisions are intended to enable employees to address the myriad adverse effects that foreseeably can flow from the exercise of the panoply of management rights that are set forth in section 7106. Accordingly, we find that under the analytical framework that was set forth in KANG, these provisions constitute arrangements for employees adversely affected by the exercise of management's rights under section 7106 of the Statute.
Moreover, we find that in those few circumstances where the need to engage in representational activity is not attributable to the exercise of a management right, these provisions serve as arrangements for employees whose ability to seek and obtain union representation would be curtailed by the Agency's exercise of its right to assign work. As discussed above, section 7131(d) of the Statute authorizes the parties to a collective bargaining agreement to negotiate over official time for labor-management relations activities. We can only conclude that the purpose of this authorization is to foster the ability of employees to exercise rights accorded them by section 7102 of the Statute to "form, join, or assist" unions and to promote the statutory purpose, as expressed in section 7101, of enabling employees to participate in decisions that affect them. When the Agency denies requests to use official time for a purpose that has been agreed to under section 7131(d), it undermines this statutory scheme with the foreseeable adverse effect on employees of diminishing their ability to pursue effectively and efficiently the avenues that are available to them under the Statute to protect their work-related interests.
In order to determine whether the proposed arrangements are "appropriate," within the meaning of section 7106(b)(3), we must examine the competing practical needs of the parties and determine whether the negative impact on management's rights is disproportionate to the benefits that the arrangements confer on employees. See KANG, 21 FLRA at 33.
Insofar as the nature and extent of the impact experienced by the adversely affected employees is concerned, we note that the effects will be myriad and dependent on the circumstances that surround the management action that generates the particular need for Union representation. Similarly, the extent to which the circumstances giving rise to the adverse effects are within an employee's control will be varied and dependent on the circumstances surrounding the management action involved.
Management's right to assign work would be affected by the provisions to the extent that the Agency could deny requests by employees that they be released from duties to use available official time only where a "substantial" workload disruption would result and by Union representatives only where a "severe" workload disruption would result.
Now we turn to the benefits and burdens entailed in the proposed arrangements. The arrangements would facilitate the employees' ability to obtain Union representation when faced with the prospect of adverse effects flowing from Agency action. An employee's rights to be represented by his or her union in such circumstances flow from various portions of the Statute.
In enacting the Statute, Congress found that statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations in decisions that affect them safeguards the public interest and contributes to the effective conduct of public business. 5 U.S.C. § 7101. Congress found, therefore, that "labor organizations and collective bargaining in the civil service are in the public interest." Id. Based on that finding, Congress enacted the Statute for the purpose of prescribing certain rights and obligations for employees of the Federal Government and establishing procedures "designed to meet the special requirements and needs of the Government." Id. Under the Statute, employees are given the right to "form, join, or assist any labor organization, or to refrain from any such activity[.]" 5 U.S.C. § 7102. Section 7114 of the Statute prescribes various representational rights and duties for employees and the unions that represent them exclusively. Among other things, a union is entitled to act for and represent the interests of those employees for whom it holds exclusive recognition. To enable the union to do so, as we have noted earlier, section 7131(d) authorizes the parties to a collective bargaining relationship to negotiate over grants of official time for employees who are engaged in labor-management relations activities that are not covered by the remainder of section 7131.7/
An agency's denial of requests by employees that they be released from their duties to perform labor-management activities on available official time severely diminishes the ability of the Union and employees to control when they will perform labor-management activities. Correspondingly, it diminishes their ability to conduct the collective bargaining relationship in a manner that, from the employees' perspective, is effective and efficient. Put simply, depriving the employees and the Union of the ability to perform labor-management relations activities at times that are desirable from their perspective places the employees and the Union at a disadvantage in protecting employee interests in the face of Agency action.
We find that the provisions afford substantial benefits to employees on both an individual and collective basis. In this regard, these provisions enhance the ability of employees and their representatives to engage in labor-management relations activities in an effective and efficient manner by permitting the employees and the Union greater control over when they will perform such activities. These provisions reduce the need for employees to use non-duty hours for such activities and, thus, facilitate the employees' ability to exercise rights provided to them by the Statute and to protect themselves against adverse effects that flow from action taken by their employer.8/ These provisions also benefit both the Agency and the public interest by promoting an effective and meaningful collective bargaining relationship. In particular, we note that facilitating the employees' ability to obtain Union representation affords such benefits as the promotion of the early resolution of disputes and prevention of unjust and unwarranted personnel actions.
The provisions place a burden on the Agency by requiring it to release employees from their duties in circumstances covered by the provisions. Although, under the provisions, the Agency would not be required to endure a workload disruption that amounts to "severe" or "substantial," it would nevertheless be required to undergo any lesser workload disruption in order to accommodate the request for official time. In circumstances that did not meet the specified standards, the Agency would have to either postpone the performance of the particular work that, but for the official time use, would be performed at the specific time by the employee or reassign the work to someone else. Significantly, however, these provisions do not totally preclude the assignment of work to any individual employee or prevent the Agency from scheduling work generally for the purpose of accomplishing its mission and operations.
Insofar as the effect on efficient and effective Government operations is concerned, the provisions would require the Agency to make some concessions with respect to how it accomplishes its work to accommodate requests for official time. However, the provisions would contribute to the effective conduct of public business by promoting collective bargaining and employee participation in decisions that affect them. See 5 U.S.C. § 7101. Thus, while the provisions would require the Agency to endure some disruption in its ability to manage its workload at optimum efficiency at the particular time that coincides with an official time request, the extent of that impairment would be limited by the terms of the provisions and would be offset by the long-term benefits afforded by an effective labor-management relationship.
On balance, we conclude that the benefits to employees and the contribution to the public interest that are afforded by the provisions outweigh the burden placed on the Agency and that the provisions do not excessively interfere with management's right to assign work. Based on the foregoing, we conclude that as an alternative to the "carve out" theory set forth in Military Entrance Processing Station, Provisions 2 and 6 are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute.
IV. Provision 3
Article 4 - Union Rights and ResponsibilitiesSection 2
C. A steward, Chief Steward, or Chapter President shall be given the opportunity to address formal training classes, including training at FLETC [Federal Law Enforcement Training Center], for up to 15 minutes on official time during official duty hours.
A. Positions of the Parties
The Agency asserts that this provision interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. In this regard, the Agency argues that the assignment of training is encompassed within the right to assign work and that the right to assign work includes the right to determine when work assignments will occur. The Agency contends that the provision would preclude management from assigning work or performing training during the covered period by mandating that the Union be given 15 minutes to address employees.
The Union acknowledges that management has the right under section 7106 of the Statute to assign work and decide when the work will be done and that this right extends to the assignment and content of training. However, the Union argues that foreclosing "a mere fifteen minute forum for the [U]nion during a management scheduled training session goes far beyond the intent of the [S]tatute in preserving management's right." Union's reply brief at 10. The Union contends that the Union's right to meet with employees and discuss representational matters should be balanced against management's right to assign 15 minutes of work during a training session and that the provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
Applying the factors set forth in KANG, the Union contends that the impact of preventing the proposed forums is substantial. The Union asserts that the forums would afford employees an opportunity to hear and discuss how the training impacts their work lives from the Union's perspective and would provide an opportunity for discussing the connection between employee rights under the contract and the subject matter of the training. In this regard, the Union contends that such a forum is necessary because the Union is denied the ability to bargain over the content, breadth and scope of training as a consequence of the management's rights provisions of the Statute. The Union contends that the employees and the Union have no control over the potential adverse impact that the training may have on unit members.
The Union argues that the impact on the Agency's right to assign work is negligible. In support of this argument, the Union contends that 15 minutes of a training session that can last from several hours to several weeks is an inconsequential amount of time "wrested from management control." Id.
The Union asserts that, on balance, the negligible impact on management's right to assign work is outweighed by the employees' need to know their own rights in relation to the course material. The Union also contends that the provision has no negative impact on effective and efficient Government operations. In this regard the Union contends that the forums would entail only a "de minimis incursion" into training sessions and would prevent frivolous grievances and promote quick resolution of any problems that arise. Id. at 13.
B. Analysis and Conclusions
It is well established that the assignment of job-related training during duty hours constitutes an assignment of work. See, for example, National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456 (1990) (Proposals 6 and 14), remanded without decision as to other matters sub nom. United States Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island v. FLRA, No. 91-1045 (D.C. Cir. Jul. 23, 1991). However, a requirement that employees be provided classes that are solely for the purpose of conveying information concerning their conditions of employment and do not concern instruction in some facet of their duties and responsibilities does not involve training that comes within the ambit of the right to assign work. See American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557 (1991) (Proposal 2) (Defense Mapping Agency). Initially, we note that Provision 3 would apply to formal training classes at which job-related training is being given and would require that the Agency include a 15-minute forum during duty hours at which the Union would address employees who are attending the training. Thus, while the Union may wish only to dispense and/or obtain information concerning the conditions of employment of employees during that forum, the forum would occur in the context of training that is encompassed within management's right to assign work under section 7106(a)(2)(B).
This provision requires that the Agency schedule the forum during the period of time at which the training class is held without regard to whatever other work the Agency may wish to accomplish in the training session during that time. It is well established that the right to assign work under section 7106(a)(2)(B) includes the right to determine when work that has been assigned will be performed. See, for example, VAMC, Department of Memorial Affairs, 40 FLRA 657. This provision directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) because it imposes the scheduling of the forum during duty hours regardless of whether the Agency wishes to assign training or other work during the time involved. Thus, it prevents the Agency from determining when work will be performed. See, for example, Illinois Air National Guard, 35 FLRA 740 (Proposal 4, which required that employees be given 10 minutes prior to their lunch break and at the end of the day to cleanup, directly interfered with management's right to assign work).
Moreover, we note that the right to assign work encompasses decisions as to the type of training to be assigned and the frequency and duration of training. See, for example, 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, 124-28 (1987). This provision requires that the Agency include the 15-minute forum for the Union in all of its formal training classes and, consequently, directly interferes with the Agency's right to make decisions concerning the content and duration of its training classes.
We find that this provision is distinguishable from Proposal 2 in Defense Mapping Agency. In that decision we concluded that Proposal 2 concerned classes that did not come within the ambit of management's right to assign work because they were limited to providing employees with information concerning their conditions of employment. We further concluded that Proposal 2, which was otherwise negotiable, was not rendered nonnegotiable based solely on the fact that it involved use of duty time by employees to attend the classes. This provision, unlike Proposal 2, concerns training classes that are encompassed within management's right to assign work and does not permit the Agency to determine when work that has been assigned will be performed. See also U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690, 713-16 (1991), petition for review as to other matters filed sub nom. Professional Airways Systems Specialists Division, District No. 1-MEBA/NMU, AFL-CIO v. FLRA, No. 91-1310 (D.C. Cir. June 23, 1991) (proposal that authorized union representatives to attend agency training programs on drug testing for the purpose of obtaining information about a condition of employment in the bargaining unit did not concern training that was encompassed within management's right to assign work).
The Union claims that this provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. In support of this claim, the Union contends that this provision is intended to provide employees with the opportunity to discuss with the Union, and obtain information on, the effects that the training has on their work lives. In this regard, it is intended to provide employees and the Union with the means to identify and address inadequacies that may exist in the training that is provided employees or any other negative effects that the assigned training may have on their working conditions. We find that this provision is intended to address anticipated adverse effects on employees flowing from management's right to assign the work of training to employees and determining the type, frequency, and duration of that training. We conclude that Provision 3 constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute. See National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 840-41 (1990) (Naval Facilities Engineering Command, Western Division) (a proposal that seeks to ameliorate the adverse effects of the exercise of a management right by inhibiting the exercise of that right may constitute an arrangement within the meaning of section 7106(b)(3)).
Having concluded that this provision constitutes an arrangement, we now address whether it is appropriate or whether it excessively interferes with management's right to assign work. Inadequacies in the job-related training provided employees can have a significant effect on the employees' job performance. The nature and extent of the effect experienced by employees will vary depending on the nature and extent of the inadequacies in the training that are addressed by the Union and how those inadequacies relate to the individual employee's training needs. Thus, although the provision offers a significant benefit to employees in terms of enhancing their ability to address matters that affect their working conditions, the actual extent of the benefits is unpredictable.
With regard to the burdens imposed by the proposal on the Agency, the provision requires that the Agency allocate to the Union 15 minutes at every formal training class regardless of the need to devote that time to the accomplishment of other work and without regard to the importance to employees and the Union of conducting such a forum at a particular training class. Thus, this provision imposes a significant burden on the Agency by requiring that it allocate 15 minutes at every formal training class in order to accommodate the forums.
On balance, we find that the burden that is placed on management's ability to conduct its operations in an effective and efficient manner by this requirement outweighs the benefits to employees and that this provision excessively interferes with management's right to assign work. We conclude that Provision 3 does not constitute an appropriate arrangement under section 7106(b)(3).
Based on the foregoing, we conclude that Provision 3 excessively interferes with management's right to assign work under section 7106(a)(2)(B) and that it is nonnegotiable.
V. Provision 4
Article 6 - Union StewardsSection 3
B. A steward, Chief Steward, or Chapter President may utilize official time from the Union Bank for the following activities:
11. to prepare and maintain records and reports required of the Union by Federal agencies.
A. Positions of the Parties
The Agency acknowledges that the Authority has concluded that proposals allowing official time to prepare certain reports required by the Statute are negotiable. However, the Agency contends that Authority precedent suggests that the use of official time for activities that relate to a union as an organization is proscribed, citing American Federation of Government Employees, AFL-CIO, Local 2823 and Veterans Administration Regional Office, Cleveland, Ohio, 2 FLRA 4 (1979) (VA, Cleveland). The Agency asserts that this provision permits the use of official time for any record or report required by a Federal agency and is not limited to those required by the Statute. The Agency contends that this provision is inconsistent with section 7131(b) of the Statute, which prohibits the use of official time for activities related to the internal business of a labor organization.
The Union states that this provision does not apply to reports that are discretionary in nature or required by non-Federal agencies but applies to records and reports required of Federal sector labor unions by Federal agencies. The Union contends that this provision is to the same effect as the proposal that the Authority found negotiable in VA, Cleveland. The Union argues that the reports and records that are the subject of this provision are of the same nature as those that were the subject of the proposal in VA, Cleveland, that is, reports and records required of labor organizations by the Department of Labor (DOL). The Union maintains that the reports that are the subject of this provision are required by law and provide public oversight to ensure the fiscal integrity of unions. The Union argues that there are no reasonable grounds upon which to distinguish reports required by DOL from those required by other Federal agencies. Finally, the Union asserts that the reports to which this provision is addressed do not involve institutional matters.
B. Analysis and Conclusions
This provision is to the same effect as Proposal 1 in National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 1366 (1991) (IRS). In that case, the agency argued that a proposal that permitted the use of official time to prepare and maintain records and reports required of the union by Federal agencies was inconsistent with section 7131(b) of the Statute. In that decision we stated:
In our view, Proposal 1 is similar to the proposal found negotiable in VA, Cleveland, which concerned official time for the preparation of financial and other reports required by the U.S. Department of Labor under section 7120(c) of the Statute, concerning the operations of a labor organization. In that case, the Authority found that, unlike the activities expressly cited in section 7131(b) of the Statute as not eligible to be conducted on official time, such reports did not solely relate to the structure and institution of the labor organization. Rather, they "make[] available to the public information regarding the conduct of union affairs." Similarly, the records and reports referenced in Proposal 1 do not solely relate to the structure and institution of the Union. Rather, the Union must prepare and maintain these records and reports to meet requirements imposed by Federal agencies upon the Union to disclose certain information about its operations. Accordingly, Proposal 1 is not inconsistent with Federal law and is, therefore, within the duty to bargain.[Citations omitted.]
IRS, 38 FLRA at 1368.
For the reasons expressed in IRS, we conclude that Provision 4 is negotiable.
VI. Provision 7
Article 6 - Union StewardsSection 4
During each year of this Agreement up to 32 hours of administrative leave will be granted to each of 3 representatives from each of the nine designated chapters for travel and attendance at union sponsored training.
A. Positions of the Parties
The Agency asserts that to the extent that this provision mandates the granting of either annual or administrative leave even if the Agency needs the Union representative present to perform work, it is nonnegotiable because it interferes with the right to assign work. The Agency contends that to the extent that this provision mandates the granting of administrative leave for Union-sponsored training that involves internal Union business, it is nonnegotiable because it conflicts with 5 U.S.C. § 7131(b).
The Union states that this provision presents essentially the same issue as Provisions 2 and 6. In this regard, the Union maintains that although the term "administrative leave" is used in this provision, its intent is to allow official time within the meaning of section 7131 of the Statute for attendance at Union-sponsored training about collective bargaining matters. The Union asserts that the term "administrative leave" appears in this provision because that term has been used in contracts since before the Civil Service Reform Act when the parties had to rely on the concept of administrative leave in order to obtain the functional equivalent of the official time that now is covered by section 7131 of the Statute. The Union also contends that administrative leave and official time are interchangeable.
Citing the Authority's decision in Military Entrance Processing Section, 25 FLRA 685, the Union argues that section 7131 creates an exception to management's right to assign work.
The Union contends that having Union representatives properly trained in collective bargaining responsibilities serves the purposes of all parties. The Union states that this provision is intended "solely to allow [U]nion representatives to attend [U]nion sponsored training to deal with matters of collective bargaining, e.g., grievance procedures, contract interpretation, labor law, etc. It is not the intent or reach of this clause to allow official time or administrative leave for training over matters of [U]nion interest only." Union's reply brief at 18. The Union contends that the Agency's speculation that the provision may be improperly used should not provide a basis for finding that the provision is nonnegotiable. The Union maintains that in the event that the Agency believes that the official time is being misused, it retains the ability to refuse the time and force the Union to prove to an arbitrator that the claim for time is in accordance with the law.
B. Analysis and Conclusions
The Union's statement that Provision 7 is intended to apply to Union-sponsored training in collective bargaining matters and not to training over matters of solely Union interest is consistent with the language of the provision. Therefore, we adopt the Union's interpretation. Based on this interpretation, we reject the Agency's contention that this provision is inconsistent with Section 7131(b) of the Statute.
We also construe this provision as seeking official time under section 7131(d) of the Statute. We agree with the Union that official time and administrative leave are based on the same concept and that the use of the latter term in the provision is inconsequential. In this regard, we note that OPM defines the term "administrative leave" as follows:
The term is sometimes used to refer to an excused absence from duty without loss of pay and without charge to leave. The term is not officially recognized in statute or OPM regulations.
FPM chapter 630, subchapter 11-7 (Emphasis in original.). Significantly, in those same FPM provisions concerning excused absences, under the heading "Employee Organizations," cross-reference is provided to "individual contracts between agencies and employee organizations for granting of excused absence." FPM chapter 630, subchapter 11-9. Under section 7131 of the Statute "official time" equates to "paid time," which is granted in connection with labor-management relations activities. See Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983); American Federation of Government Employees, National Council of Field Labor Locals and U.S. Department of Labor, Mine Safety and Health Administration, Denver, Colorado, 39 FLRA 546 (1991). For the reasons stated above in conjunction with Provisions 2 and 6, and consistent with Military Entrance Processing Station, we find that Provision 7 is negotiable.
In the event that the approach taken in Military Entrance Processing Station is no longer viable, we apply the following analysis as an alternative. This provision would require that the Agency grant up to 32 hours of official time per year to each of 27 Union representatives for the purpose of attending Union-sponsored training. The Union states that its representatives can select from at least six training sessions that it sponsors every year. Petition at 4. Thus, under this provision, the Agency would be required to release the designated employees from their duties for up to 32 hours at times that coincide with the training sessions sponsored by the Union. Based on the reasons expressed above in conjunction with Provisions 2 and 6, we conclude that this provision directly interferes with the right to assign work because it would require the Agency to excuse employees from performing assigned duties in order to attend training sessions that are sponsored by the Union.
Although the Union did not expressly raise the issue of appropriate arrangements in conjunction with this particular provision, we cannot ignore its similarity to Provisions 2 and 6, which we concluded were negotiable as appropriate arrangements. In fact, the Union describes this provision as presenting "essentially the same issue" as those two provisions. Union's reply brief at 16. Therefore, we will apply the appropriate arrangement analysis that was set forth in KANG to this provision.
Initially, we note that there is no claim that negotiation of official time for Union-sponsored training that relates to representational activity is not authorized under section 7131(d) of the Statute. As we discussed in conjunction with Provisions 2 and 6, the management rights provisions of the Statute vest agency management with the authority to take actions that can result in adverse effects on bargaining unit employees. Collective bargaining is one of the processes to which employees may resort when they need to protect their work-related interests in the face of management-generated actions. As we have noted previously, in the collective bargaining process that has been established under the Statute, a union that has been accorded exclusive recognition for a particular group of employees is entitled to act for and represent the interests of those employees.
In the Federal sector, many unions rely on employees in the agencies in which they hold recognition to perform representational functions either in addition to or instead of staff employed or retained by the Union. As evidence of this reality, section 7131 of the Statute governs the extent to which agency employees representing a union may conduct representational activities on official time. It follows that the representation of employees in concerted efforts to respond to management-generated actions that may adversely affect employees generally will require action by an employee who is functioning as a union representative at some, if not all, stages of the proceedings. Training of those employee representatives is essential to the competent and effective representation of the interests of bargaining unit employees. The availability of official time for the purpose of attending training dealing with matters relating to collective bargaining facilitates the ability of union representatives to obtain such training. Thus, providing official time for purposes of obtaining that training constitutes an arrangement for employees who are faced with adverse effects flowing from the exercise of management rights and who need representation for the purpose of protecting their interests against such adverse effects.
Moreover, we find that in those few circumstances where the need for Union representation is not attributable to the exercise of a management right, this provision serves as an arrangement for employees whose ability to obtain competent union representation would be curtailed by the Agency's exercise of its right to assign work. That is, if Union representatives are unable to attend training because of the Agency's refusal to release them from their duties, it is reasonably foreseeable that the quality of the representation afforded bargaining unit employees will diminish and, by extension, so will the ability of employees to protect their work-related interests.
We now turn to the question of whether the proposed arrangement is appropriate. As we discussed in conjunction with Provisions 2 and 6, the nature and extent of the effects experienced by the adversely affected employees will be highly varied and dependent on the circumstances that surround the management action that generates the particular need for Union representation. Similarly, the extent to which the circumstances giving rise to the adverse effects are within an employee's control will be varied and dependent on the circumstances surrounding the management action involved.
Requiring the Agency to release employees on official time to attend Union-sponsored training would prevent the Agency from assigning work to the employees during the period involved. The Union states that it offers Union-sponsored training at least six times per year. While this circumstance may afford some flexibility as to the timing of the release of a particular employee, it nevertheless limits the Agency's ability to control the timing of an employee's absence. However, the fact that such training sessions are likely to be prescheduled allows the Agency advance notice of an employee's absence and the opportunity to plan around it in terms of scheduling work assignments. Like Provisions 2 and 6, this provision does not totally preclude the assignment of work to any individual employee or prevent the Agency from scheduling work generally for the purpose of accomplishing its mission and operations.
Similar to Provisions 2 and 6, the benefits to employees afforded by this provision are significant. The opportunity for Union representatives to attend Union-sponsored training concerning collective bargaining matters on official time significant