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

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ALCOHOL, TOBACCO AND FIREARMS

(Agency)

0-NG-1817

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 24, 1992

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

[Provision 1]

Article 3 Employee Rights

Section 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

[Provision 2]

Article 3 Employee Rights

Section 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 Responsibilities

Section 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 Stewards

Section 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 Stewards

Section 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 significantly enhances the ability of those representatives to obtain adequate training in the performance of their representational functions. Such training affords benefits to employees, both individually and collectively, by increasing the level of competence of Union representatives and, by extension, the quality and effectiveness of the representation afforded employees. We find that increasing the competence of the Union representatives and, by extension, their ability to engage in a collective bargaining relationship in a more effective and efficient manner would also benefit the Agency. Additionally, as we noted earlier, collective bargaining in the civil service is in the public interest. See 5 U.S.C. § 7101. It follows that training that fosters the ability of Union representatives to improve the collective bargaining relationship will promote the public interest.

As to the burden on management rights, we find that the provision would impose on management by depriving it of the services of the employees involved during particular periods of time. However, as we have noted earlier, some flexibility in the scheduling of absences and work assignments is afforded by virtue of the fact that more than one training session is available during the year and advance notice of absences is possible. Additionally, as noted above, raising the level of the competence of the Union representatives who are involved in the conduct of the collective bargaining relationship would contribute to effective and efficient Government operations.

On balance, we find that the benefits that the provision affords to employees, both individually and collectively, and to the public interest outweigh the burden placed on management's right to assign work. Consequently, we conclude that, as an alternative to the "carve out" theory set forth in Military Entrance Processing Station, Provision 7 constitutes an appropriate arrangement, which is negotiable under section 7106(b)(3) of the Statute.

VII. Provision 8

Article 9 - Promotions

Section 1

C. All applicants for any bargaining unit position shall be evaluated against the same criteria and will be given simultaneous consideration.

[Only the underscored portion is in dispute.]

A. Positions of the Parties

The Agency contends that the effect of this provision would be "to funnel candidates from every appropriate source through the rating and ranking procedure" and that, consequently, it would preclude the Agency from selecting directly from other appropriate sources. Agency's statement of position at 8. The Agency asserts that, like Provision 6 in Marine Corps Logistics Base, Albany, 29 FLRA 1587, this provision interferes with the Agency's management right to make selections from any appropriate source under section 7106(a)(2)(C) of the Statute.

The Union contends that the Agency "reads beyond the actual language" of this provision in asserting that it requires that all candidates be rated and ranked using the negotiated promotion procedure. Union's reply brief at 19. According to the Union, the provision requires only that the Agency "assess all candidates using the same (employer determined) criteria." Id. The Union states that under this provision the Agency can select from any source it wishes but is "precluded from requiring a Ph.D. from internal candidates and an elementary school diploma from external candidates." Id. at 20. The Union contends that as long as the Agency looks at the qualifications of all applicants and uses the same standards for evaluating candidates, it can use any legal process and source for non-internal candidates.

B. Analysis and Conclusions

The Union's statements as to the intent of this provision are consistent with the language of the provision and are adopted for purposes of this decision. Based on the language and the Union's statement of intent, we find that the disputed portion of this provision does not limit the Agency to making selections from among properly ranked and certified candidates for promotion and that it does not preclude selection from any other appropriate source. We reject the Agency's assertions that the provision has that effect and, consequently, that it is inconsistent with management's right to select under section 7106(a)(2)(C) of the Statute. As the Agency asserts no other grounds in support of its contention that this provision is nonnegotiable, we conclude that Provision 8 is within the duty to bargain.

VIII. Provision 11

Article 11 - Assignment of Ill or Injured Employees

Section 3

A. Efforts shall be made to reassign or detail the employee concerned to a different duty assignment within his/her post of duty.

B. After efforts regarding Subsection A of this section are exhausted, consideration will be given to reassigning or detailing the employee concerned to a different post of duty.

[Only the underscored portion is in dispute.]

A. Positions of the Parties

The Agency contends that this provision mandates that efforts be made to reassign an ill or injured employee to a different duty assignment. The Agency argues that the provision is inconsistent with management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency acknowledges that the Authority concluded that a similar proposal was negotiable as an appropriate arrangement in International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31 (1990) (Provision 2) (Portsmouth Naval Shipyard I). However, the Agency asserts that that conclusion is in error. The Agency bases this assertion on the Supreme Court's decision in IRS v. FLRA, which the Agency describes as supporting a conclusion that no appropriate arrangement negotiated under section 7106(b)(3) can interfere with the exercise of management's rights under section 7106(a) of the Statute.

The Union states that this provision applies when an employee becomes handicapped or injured and still wishes to work. The Union contends that the Authority's decision in Portsmouth Naval Shipyard applies and that the provision is negotiable. The Union argues that the Agency's interpretation of IRS v. FLRA is erroneous and would render section 7106(b)(3) null and void.

B. Analysis and Conclusions

Initially, we reject the Agency's argument that the Supreme Court's decision in IRS v. FLRA requires a conclusion that a matter cannot be negotiable as an appropriate arrangement under section 7106(b)(3) if it interferes with management's rights under section 7106(a). See Office of Thrift Supervision, 44 FLRA 63. As we discussed in conjunction with Provisions 2 and 6 above, Section 7106 specifically provides that management's rights under section 7106 are "subject to" section (b) of the Statute. Thus, section 7106 unequivocally establishes that management's rights under section 7106 are "subject to" the Union's right to negotiate "appropriate arrangements" under section 7106(b)(3). See OEA v. FLRA, 876 F.2d at 965 ("Section 7106(a) . . . enumerates the prerogatives reserved to management, but the immunity of [those] rights from the duty to bargain is '[s]ubject' to Section 7106(b)(3).") (Footnote omitted.); AFGE, Local 2782 v. FLRA, 702 F.2d 1183 (opinion by then-Judge Scalia). Thus, the literal wording and structure of section 7106 support a conclusion that a proposal that constitutes an appropriate arrangement under section 7106(b)(3) is negotiable notwithstanding "some constraints upon rights generally reserved (in other contexts) to management." Id. at 1188.

As the parties acknowledge, we have previously examined proposals requiring an agency to make efforts to place an employee who is physically disabled for service in his or her current position in a position that he or she is physically able to perform. We have concluded that such proposals directly interfere with management's rights to assign employees and work, but, nevertheless, are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute. American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249 (1990) (Portsmouth Naval Shipyard II) (Proposal 5); Naval Facilities Engineering Command, Western Division, 36 FLRA 834 (Provision 1); Portsmouth Naval Shipyard I, 35 FLRA 31 (1990) (Provision 2).

We find that this provision constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute. As explained by the Union, it applies in circumstances where an employee who has become handicapped or injured wishes to continue working but cannot unless the Agency reassigns the employee to duties that he or she can perform. Thus, we find that this provision is intended to address the adverse effects that would foreseeably result if the Agency, in exercising its management rights, assigns an employee to a position or work that he or she is unsuited to perform because of handicap or injury or if the Agency exercises its right by choosing not to assign any work because of such a condition. In the first instance, the Agency's actions could place the employee at risk of discipline or a negative performance evaluation as a result of the employee's inability to perform satisfactorily. In the second instance, the employee could be faced with depleting his or her leave balances and/or forgoing his or her normal income if leave balances are exhausted.

Provision 11 has the same effect as the proposals that we have held negotiable as appropriate arrangements in the above-cited cases and the parties acknowledge the applicability of that precedent. Moreover, the Agency offers nothing to support a conclusion that a disposition different from that reached in the above-cited cases is warranted as to Provision 11. It is well established that parties bear the burden of creating a record upon which the Authority can make a negotiability determination. For example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 711-12 (1990); National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts at its peril. For example, National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990). Accordingly, we conclude that the disputed portion of Provision 11 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute and that it is negotiable.

IX. Provisions 12

Article 14 - Facilities

Section 1

A. The Employer, upon appropriate advance request, will provide the Union, when available, at the Employer's facility, a meeting room for the following purposes:

4. for other activities deemed necessary by the Union.

A. Positions of the Parties

The Agency asserts that under this provision the Union would be permitted to conduct internal union business in meeting space provided by the Agency. In view of this, the Agency contends that this provision is inconsistent with 5 C.F.R. § 735.205, which provides that Government equipment will be used for only officially approved activities. In support of its contention, the Agency cites National Treasury Employees Union and Internal Revenue Service, Denver District, 24 FLRA 249 (1986) (IRS, Denver), in which the Authority found that a proposal that granted the use of a computer to the union but expressly excluded the use of the computer for internal union business was not inconsistent with 5 C.F.R. § 735.205. The Agency states that this provision contains no such limitation and that the Union has not indicated that any such limitation is intended.

The Union argues that the Agency's reliance on IRS, Denver is misplaced. The Union contends that in that decision the Authority did not address the question of whether or not use of an agency computer for internal union business would be nonnegotiable. The Union contends that there is "a long history" of decisions by the Federal Service Impasses Panel (FSIP) awarding office or meeting space to unions with no limitation placed on their use. Union's reply brief at 23. Additionally, the Union states that in American Federation of Government Employees, AFL-CIO, Local 1631 and Veterans Administration Medical Center, Chillichothe, Ohio, 25 FLRA 366 (1987), the Authority held that Provision 1, which required the agency to provide a union with office space, was negotiable even though that provision did not contain any requirement that the space be used solely for representational purposes. The Union asserts that the Agency has offered no evidence or rationale to support its claim that the use of meeting space for internal union business conflicts with regulations governing the use of government property.

B. Analysis and Conclusions

OPM has promulgated regulations that require each agency head to issue regulations covering the agency's employees, prescribing, among other things, standards of conduct and responsibilities. 5 C.F.R. § 735.101. The OPM regulations require that, as a minimum, agency regulations "contain provisions covering the standards of and governing the ethical and other conduct of its employees" that are specified within the OPM regulations. 5 C.F.R. § 735.201. One of the standards required by the OPM regulations relates to the use of Government property and provides:

An employee shall not directly or indirectly use, or allow the use of, Government property of any kind, including property leased to the Government, for other than officially approved activities. An employee has a positive duty to protect and conserve Government property, including equipment, supplies, and other property entrusted or issued to him.

5 C.F.R. § 735.205.

The Agency argues that Provision 7 is inconsistent with 5 C.F.R. § 735.205 because it would allow the use of Government property for internal union business. We reject the Agency's assertion that internal union business necessarily constitutes "other than officially approved activities" for which the use of Government property is prohibited. Here, the Agency offers no support for its assertion, and none is otherwise apparent to us, that, as a matter of law, internal union business cannot constitute an "officially approved activity." Determinations as to what constitutes an "officially approved activity" are within the discretionary administrative authority of an agency and an agency is obligated to exercise that discretion through negotiations unless precluded by regulatory or statutory provisions. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 615, 619 (1990) (NTEU and IRS), affirmed as to other matters sub nom. National Treasury Employees Union v. FLRA, No. 91-1048 (D.C. Cir. May 3, 1991).

We note that in the administration of this provision, employees would be bound by the requirements of 5 C.F.R. § 735.205 insofar as the use of Government property for other than officially approved activities is concerned. If the Union seeks to use a meeting room for "other than officially approved activities," other proceedings are available to remedy such abuse. See, for example, Id. at 621. The possibility that some abuse may occur does not remove an otherwise negotiable proposal from bargaining. See, for example, id.

Based on the foregoing, we conclude that the Agency's assertion that Provision 12 is inconsistent with 5 C.F.R. § 735.204 must be rejected. See Id. (Provisions 1 and 2). We conclude that Provision 12 is negotiable. In reaching this conclusion, we also reject the Agency's claim that the Authority concluded in IRS, Denver that use of Government property for internal union business was inconsistent with 5 C.F.R. § 735.205. In that decision, the Authority did not reach the issue of whether use of Government property for internal union business would be inconsistent with 5 C.F.R. § 735.205 because it found that the proposal at issue did not seek to use Government property for that purpose.

X. Provision 14

Article 14 - Facilities

Section 9

B. The Employer will provide each Chapter with a lockable four-drawer file cabinet to be located in the immediate work area of the chapter president.

A. Positions of the Parties

The Agency contends that this provision conflicts with 5 C.F.R. § 735.205 because it would permit the Union to use the file cabinet for internal union business. Citing the Authority's decision in IRS, Denver, the Agency contends that Provision 13 is nonnegotiable.

The Union asserts that this provision is negotiable. The Union reiterates its contention that the Agency's reliance on IRS, Denver is misplaced. The Union states that the FSIP has rendered many decisions awarding filing cabinets to unions and that, by tradition, this provision is legal.

The Union also argues that the denial of a file cabinet to the Union unless it agrees not to place "internal documents" in it is "impractical and unenforceable." Union's reply brief at 25. In this regard, the Union asserts that if the Agency were to search through the file cabinet for such documents, it would violate the confidentiality of other records relating to employees whom the Union represents. The Union describes the Agency's position as requiring that the entire provision be struck down "because there may be an incidental use of the cabinet for internal union business." Id. The Union contends that the Agency's failure to show any burden that use of a filing cabinet for internal union papers would place on management "makes it impossible to find this proposal in conflict with [5 C.F.R. § 735.205]." Id.

B. Analysis and Conclusions

This provision has the same effect as Provisions 1 and 2 in NTEU and IRS, 38 FLRA 615, which required that, among other things, a 4-5 drawer lockable cabinet be provided for the exclusive use of the Union. In that decision, we rejected the agency's argument that Provisions 1 and 2 were inconsistent with 5 C.F.R. § 735.205 because they did not preclude the use of Government equipment for internal business. Rather, we concluded that the incidental use of Government equipment for such institutional purposes as the storage of election records, tax returns and membership forms is not contrary to 5 C.F.R. § 735.205. NTEU and IRS, 38 FLRA at 619. For the reasons relied on in NTEU and IRS, we reject the Agency's contention that Provision 13 is inconsistent with 5 C.F.R. § 735.205 and we conclude that it is negotiable.

XI. Provisions 15, 16 and 18

[Provision 15]

Article 16 - Annual Leave

Section 1

A. Annual leave will be granted in accordance with applicable laws and regulations. The employer agrees to grant annual leave in a manner which permits each employee, if he/she wishes, to take at least two (2) consecutive weeks of accrued annual leave each year unless permitting such leave causes a severe work interruption.

B. Each employee will monitor his/her annual leave account in order to make appropriate advance requests to the Employer for leave for vacation and other purposes which will contribute to avoiding losing annual leave. Payroll earnings statements issued to employees shall serve as the notification of annual leave balances. Employees faced with the possibility of loss of leave shall notify the Employer of their leave requests for the balance of the leave year by October 1. The Employer will approve such leave requests unless the leave would cause a severe work interruption.

C. In the event of a conflict of unapproved annual leave requests among employees at a given post of duty, Service Computation Date will govern.

[Only the underscored portions are in dispute.]

[Provision 16]

Section 3

Any person on scheduled annual leave will be called back to work only in the case of emergency.

[Provision 18]

Section 6

The employee will be granted annual leave for a workday which occurs on a religious holiday unless such request causes a severe work interruption.

A. Positions of the Parties

The Agency argues that all three of these provisions are nonnegotiable because they directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency contends that the right to assign work encompasses the right to determine when the assigned work will be performed. The Agency argues that Provisions 15 and 18 have the identical effect as Provision 5 in Fort Rucker, 28 FLRA 1172, which the Authority concluded was nonnegotiable because it directly interfered with the right to assign work. Additionally, the Agency contends that the Authority concluded that a proposal similar to Provision 16 directly interfered with management's right to assign work and was not an appropriate arrangement in Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA 714 (1987) (Proposal 6), reversed as to other matters sub nom. Veterans Administration Medical Center, North Chicago, Illinois v. FLRA, No. 87-1405 (D.C. Cir. Sept. 27, 1988).

The Union urges reconsideration of the Authority's precedent concerning the granting of leave requests. The Union acknowledges that these provisions "impact[] on management's right to assign work" but argues that the right to assign work must be balanced against an employee's statutory right to leave. Union's reply brief at 27. The Union contends that giving management the "unfettered, unilateral" right to determine when leave can be taken voids the employee's right to take leave. Id. The Union points to the phrase "in accordance with applicable law" contained in section 7106(a)(2) of the Statute and argues that "any right established by statute must be balanced with a reading of section 7106." Id. The Union contends that "[p]ermitting the parties to negotiate a substantive workload test is a fair balance" that is more practical than allowing any workload need to void an employee's right. Id.

The Union argues in the alternative that these three provisions constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. The Union contends that the impact of allowing management to call an employee back from leave, cancel leave, forbid a two-week vacation, or prevent the observance of a religious holiday is significant. The Union asserts that such actions can result in restrictions on an employee's family life, loss of deposits that have been made on holiday reservations, and violation of spiritual beliefs.

The Union contends that employees have no control over the circumstances leading to management's denial of their leave. The Union maintains that management, on the other hand, retains the ability to assign work to other qualified employees and to manage internal deadlines.

The Union argues that the provisions would have a minimal impact on management. In this regard, the Union contends that the "severe work interruption" language allows the Agency to delay an employee's leave if an alternate employee cannot be found to perform necessary work, if an external deadline requires that the particular employee do work at a particular time, or if leave would interfere with a training session or conference that the employee must attend and there is no alternate session. The Union asserts that the "emergency" language in Provision 16 affords management some flexibility because it retains the option of recalling an employee from leave in situations that rise to the level of an emergency.

The Union contends that "[t]he balance of the strong employee right to leave versus the relatively small possible inconvenience to management falls squarely in favor of employees." Union's reply brief at 29-30. The Union maintains that the Agency has not shown how these proposals would interfere with the effective and efficient operation of the Government. In this regard, the Union states that because management is obligated to develop work plans that acknowledge the right of employees to take leave, it should provide staffing levels that can accommodate the use of leave.

B. Analysis and Conclusions

Annual leave is governed by chapter 63 of title 5, United States Code. OPM is responsible for prescribing regulations necessary for the administration of the annual leave provisions contained in that chapter. 5 U.S.C. § 6311. Annual leave is provided and used for two general purposes: (1) to allow employees an annual vacation period; and (2) to provide periods of time off for personal and emergency purposes. FPM chapter 630, subchapter 3-4(a); FPM Supplement 990-2, book 630, subchapter S3-4(a). According to OPM, the employee has an absolute right to take annual leave subject to the right of the agency to fix the time at which leave may be taken. FPM Supplement 990-2, book 630, subchapter S3-4(b); FPM Letter 630-29. Thus, while the legal provisions governing annual leave may provide employees with the right to accrue and take annual leave, they do not provide employees with the right to determine when the leave may be taken. Rather, under the law and regulations governing annual leave, approval of requests to take annual leave is discretionary on the part of the agency with limited exceptions. See 5 U.S.C. § 6302(d); FPM chapter 630, subchapter 3-4(b); FPM Supplement 990-2, book 630, subchapter S3-4(b); FPM Letter 630-29.

Management's right to assign work under section 7106(a)(2)(B) includes the right to determine when work will be performed. See, for example, VAMC, Department of Memorial Affairs, 40 FLRA at 670. Consequently, proposals that place restrictions on an agency's right to determine when annual leave may be used directly interfere with management's right to assign work. See, for example, Army Information Systems Command, 42 FLRA at 1126. We conclude that the disputed portions of Provision 15, and Provisions 16 and 18 directly interfere with the right to assign work. See, for example, American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 589 (1991) (Provision 2, which would prevent the agency from disapproving annual leave requests or rescinding previously approved annual leave requests when such action would result in the forfeiture of annual leave, directly interfered with management's right to assign work); Portsmouth Naval Shipyard II, 37 FLRA 249 (Proposal 1, which required that annual leave be granted upon request for religious holidays except where an employee's absence would prohibit the agency from accomplishing a critical job, directly interfered with management's right to assign work); Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521 (1990) (Provision 1, which prohibited the agency from rescinding approved leave requests except in extreme emergency, directly interfered with management's right to assign work).

Accordingly, we must consider the Union's claim that these provisions constitute appropriate arrangements that are negotiable under section 7106(b)(3) of the Statute. Under the analysis set forth in KANG, we first must determine whether these provisions are intended as arrangements for employees adversely affected by the exercise of management's rights.

As we have set forth above, the regulatory scheme acknowledges that employees have a right to take accrued annual leave, subject to management's right to schedule that leave. When an agency exercises its right to assign work by denying, or canceling, leave there will be a reasonably foreseeable adverse effect on employees who seek to exercise their rights to annual leave. In this regard, it is reasonably foreseeable that the denial of requests for annual leave or the cancellation of previously approved leave will disrupt the employees' personal lives in numerous ways that need not be catalogued here. We find that Provisions 15, 16, and 18 seek to address the adverse effects that would flow from the denial of requests for, or cancellation of, annual leave and, therefore, that they constitute arrangements within the meaning of section 7106(b)(3). See Naval Facilities Engineering Command, Western Division, 36 FLRA at 840-41 (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)).

Now, we address whether the arrangements are appropriate by applying the analytical framework set forth in KANG. The condition of employment affected is the employees' ability to schedule and use accrued annual leave. The nature and extent of the impact experienced by individual employees as a consequence of denials of requests for, and cancellation of, annual leave will vary based on the circumstances involved. Depending on both the employee's own circumstances and those surrounding the denial of leave, employees could suffer inconvenience and disruption to their personal lives ranging from mild to severe. While the level of disruption and inconvenience, to some extent, may be influenced by the employee's personal circumstances, the action producing the disruption--the denial of annual leave--is not within the employee's control.

Turning to the question of the nature and extent of the effect on management's ability to deliberate and act, we find that these provisions would place limits on the Agency's ability to deny leave requests or to call employees back who are on scheduled leave. Thus, the provisions would affect the Agency's right to assign work by restricting the Agency's ability to determine when particular employees would be available to perform work assignments. Under the circumstances governed by Provisions 15 and 18, the Agency could not deny requests for annual leave unless a "severe work interruption" would result. Under Provision 16, the Agency could call an employee back to work when that employee was on scheduled annual leave only in the case of an emergency.

These provisions offer significant benefits to employees by permitting them a greater degree of control over the scheduling of their annual leave. However, these provisions also have a significant negative impact on the Agency's right to assign work to employees by requiring the Agency to grant or continue annual leave notwithstanding its need for an employee's services unless, in the circumstances covered by Provision 15 and 18, a "severe work interruption" would result, or, in the circumstances covered by Provision 16, an emergency exists. Absent a severe work interruption or an emergency, the Agency would be required to accommodate an employee's absence by foregoing the accomplishment of the work involved, rescheduling the work, or reassigning it to another employee. While the Agency would not be prevented from accomplishing its operations, its ability to do so in an efficient and effective manner would be diminished as a result of the obligations placed on it by these provisions.

We find that although these provisions would impose a burden on the Agency's ability to assign work similar to that imposed by Provisions 2, 6, and 7, the nature and extent of the benefits afforded is significantly different. Provisions 15, 16 and 18 would benefit employees on an individual basis. In contrast, as discussed at greater length above, Provisions 2, 6 and 7 offer benefits of a broader scope. By promoting collective bargaining, they afford benefits to employees on both an individual and collective basis and they also benefit the public interest.

Given the difference in the nature of the benefits afforded, we conclude that, on balance, a different outcome is warranted as to Provisions 15, 16 and 18 than that reached as to Provisions 2, 6 and 7. Insofar as Provisions 15, 16 and 18 are concerned, we conclude that the benefits afforded are more limited than those afforded by Provisions 2, 6 and 7 and do not outweigh the burden placed on management's right to assign work. Therefore, we conclude that Provisions 15, 16 and 18 excessively interfere with management's right to assign work and are not appropriate arrangements that are negotiable under section 7106(b)(3) of the Statute.

XII. Provision 17

Article 16 - Annual Leave

Section 4

The Employer agrees to authorize annual leave or leave without pay to Union officers and to any national officer of the Union for attendance at any Union-sponsored conventions or meetings unless authorization would cause a severe work interruption.

A. Positions of the Parties

The Agency argues that this provision directly interferes with management's right to assign work under section 7106(a)(2)(B) because it requires that leave be granted to employees. The Agency contends that this provision is identical in effect to Provision 5 in Fort Rucker, which the Authority concluded directly interfered with management's right to assign work.

The Union contends that although this provision presents a different issue, i.e., annual leave, than that presented by Provisions 2 and 6, i.e., official time, the results should be the same. In this regard, the Union states that the purpose of this provision, unlike "other annual leave cases[,]" is to permit an employee who is a Union official to fulfill a statutory obligation that "[U]nion representatives have to meet on a periodic basis in a convention of [U]nion delegates or even at executive board functions of the local chapter and national [U]nion to openly and fairly decide matters of the [U]nion." Union's reply brief at 6-7. The Union maintains that these obligations flow from section 7120 of the Statute and section 401 of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 401. The Union contends that if it is prevented from negotiating an arrangement to attend to matters required by law, "then that law is rendered useless." Id. at 7.

The Union maintains that there is precedent for carving out exceptions to management's rights for reasons other than section 7131 of the Statute. Specifically, the Union cites National Federation of Federal Employees, Local 29 and Department of Defense, HQ, U.S. Military Entrance Processing Command, 29 FLRA 726, 728 (1987), in which the Authority held that "the requirement of section 7121 that the parties' mandatory grievance procedure be negotiated carves out an exception to management's right to assign work . . . ." The Union contends that the obligation that unions act in accordance with the LMRDA constitutes a strongly defined Congressional policy that warrants an exception to management's rights.

Alternatively, the Union contends that this provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Union asserts that the effect of the Agency's denial of annual leave for the purpose of attending conventions and meetings on employees and the Union is substantial. The Union argues that preventing local Union representatives from attending conventions would deny members their LMRDA right to vote on dues increases or other Union policy matters. The Union contends that employees have no control over the circumstances leading to the adverse impact in that "[t]he [A]gency alone controls whether it will allow the convention or meeting[.]" Union's reply brief at 9.

The Union asserts that the "statutory right" to a union convention must take precedence over a "nebulous need to get work done, unless the interruption in work is severe." Id. The Union contends that the standard of "severe work interruption," which is established by the provision, allows the Agency to meet its work assignment needs with only minor impact. The Union argues that the balance of employee and Union rights versus management's rights must fall in favor of employees and the Union. The Union maintains that the Agency has not shown, and that it cannot be shown, that this provision interferes with the efficient and effective operation of the Government.

B. Analysis and Conclusions

Initially, we reject the Union's argument that this provision requires that we carve out section 7120 as an exception to the exercise of management's rights. In this regard, the exercise of management's rights does not have the same effect on the obligations set forth in section 7120 as it does on the rights to negotiate for official time that are embodied in section 7131(d). As we have shown above with respect to Provisions 2 and 6, a strict application of section 7106(a) to provisions seeking to negotiate official time would eviscerate section 7131(d). In contrast, provisions requiring that annual leave or leave without pay be granted for the purpose of carrying out responsibilities under section 7120 leaves that section intact. That is, while the express purpose of section 7131(d) is to authorize the negotiation of official time for use in certain

circumstances, section 7120 contains no reference to the use of leave and its requirements can be complied with regardless of whether a specific grant of annual leave is negotiated.9/

As we have previously found, proposals that place restrictions on an agency's ability to deny requests for leave directly interfere with management's right to assign work under section 7106(a)(2)(B). This is true with respect to both annual leave and leave without pay. See, for example, Army Information Systems Command, 42 FLRA at 1126. By requiring that requests for annual leave or leave without pay be granted unless a severe work interruption would result, this provision directly interferes with management's right to assign work and is nonnegotiable unless it constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

Even assuming that this provision constitutes an arrangement,10/ we conclude that it is nonnegotiable because it excessively interferes with management's right to assign work.

Denying an employee's request to take leave for the purpose of attending a Union-sponsored convention or meeting would preclude that employee from engaging in a particular exercise of his or her right to form, join, or assist a labor organization. See U.S. Department of Justice, Immigration and Naturalization Service, United States Border

Patrol, San Diego Sector, San Diego, California, 38 FLRA 701, 712 (1990), petition for review filed sub nom. Immigration and Naturalization Service v. FLRA, No. 91-70078 (9th Cir. Jan. 28, 1991) (holding leadership positions within a union is one of the many ways that employees can exercise their right to form, join, or assist a labor organization). For employees who wish to attend Union-sponsored conventions or meetings, the impact of being denied leave that is for that purpose is significant. However, insofar as the conventions or meetings are not directly related to activities undertaken on behalf of employees as part of the collective bargaining relationship but, rather, concern the internal business or institutional needs of the Union, the impact of the denial of leave on the conditions of employment of employees as a whole would be indirect and incidental. That is, while we recognize that the ability of the Union to accomplish its internal business and satisfy institutional needs may affect the Union's ability to represent employees, such activities generally do not involve the actual representation of employees. Therefore, the effect on bargaining unit employees as a whole of the denial of requests by Union officers for leave to attend Union-sponsored conventions and meetings is limited.

As discussed above, although the benefits afforded to the employee requesting the leave are significant, the

benefits afforded by the arrangement to employees as a whole are limited in that the activities for which the leave is requested generally have only an indirect bearing on the conduct of the collective bargaining relationship and the unit employees' conditions of employment. Provision 17 would require the Agency to grant leave even though it had a legitimate need for an employee's services unless that need involved a severe work interruption. Although Provision 17 would not require the Agency to suffer a severe work interruption, it nevertheless would require that the Agency undergo any lesser degree of work disruption that might result. In our view, this places a substantial burden on the Agency that outweighs the benefits to employees who desire leave to attend Union conventions and meetings. Moreover, adding in the limited benefits that the provision affords employees as a whole does not serve to offset this burden. We find that, on balance, the benefit to employees is outweighed by the burden on the Agency.

In reaching this conclusion, we emphasize that in our view a critical distinction exists between this provision and Provisions 2, 6, and 7. The latter three provisions involve absences from work in which the time would be spent in activities that are directly related to the representation of employees and the collective bargaining relationship. By contrast, Provision 17 involves absences from work to engage in activities that are related for the most part to the internal business and institutional needs of the Union. Thus, the level of benefits afforded to employees as a whole by the two groups of provisions is quite different and this difference is critical insofar as offsetting the burden placed on management's rights is concerned.

For similar reasons, this provision is distinguishable from Provisions 6, 7, 8, and 9 in National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27 (1991) (Office of Chief Counsel, IRS), remanded sub nom. Treasury, Office of Chief Counsel, v. FLRA. In Office of Chief Counsel, IRS, we concluded that Provisions 6, 7, 8 and 9, which related to approving leaves of absence for employees elected to union office, constituted appropriate arrangements that were negotiable under section 7106(b)(3) of the Statute. In so concluding, one of the factors that we found determinative was the benefit that the provisions afforded to employees seeking representation. 39 FLRA at 49. In this case, Provision 17 affords the employees who are represented by the Union, as contrasted with those who are acting as representatives, only indirect and limited benefits.

Based on the foregoing, we conclude that Provision 17 excessively interferes with management's right to assign work and does not constitute an appropriate arrangement that is negotiable under section 7106(b)(3) of the Statute.

XIII. Provision 21

Article 42 - Employee Orientation

Section 2

All new GS-1854 field employees will be brought into the regional office within one year after arriving on duty for an employee orientation and introduction to the regional office staff, functions, and mission. During this visit, NTEU will be invited to meet and address these employees for 15 minutes during duty hours.

Section 3

Within one week after arriving on duty, the employee's immediate supervisor will provide the employee with the name and work phone number of the NTEU steward and chapter president serving the employee's location. The supervisor will also notify the relevant steward and chapter president of the new employee's name and work phone number. If the Union steward and/or the chapter president and the new employee are located in the same building, the supervisor will also introduce them to each other. The steward and/or chapter president will be allowed 15 minutes during duty hours to speak about NTEU's representational role.

A. Positions of the Parties

The Agency argues that section 2 of this provision is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. In this regard, the Agency asserts that orientation constitutes training and, consequently, involves the assignment of work. The Agency also contends that section 3 is inconsistent with management's right to assign work because it mandates that the immediate supervisor be assigned the tasks of providing a new employee with the name and telephone number of specified Union representatives and informing those representatives of the new employee's name and telephone number.

The Union contends, as to section 2, that an orientation is not training because it does not "teach skill, hone competencies or develop abilities" and that it does not explain "how to perform work or how to improve performance." Union's reply brief at 31. The Union describes an orientation as a "formal gathering of employees and managers to explain the logistics of the agency's non-duty operations and to introduce people to one another." Id.

In response to the Agency's objections to section 3, the Union in its reply brief has submitted an amendment, which follows:

Within one week after arriving on duty, management will provide the employee . . . . Management will also notify . . . . If the union

steward and/or the chapter president and the new employee are located in the same building, management will also introduce them to each other . . . . [Emphasis in original.]

B. Analysis and Conclusions

1. Section 2

The parties dispute whether the "orientation" sought by section 2 constitutes "training." Previously, we have distinguished between training that encompasses instruction of employees in some facet of their duties and responsibilities and that which provides information to employees concerning their conditions of employment. See Defense Mapping Agency, 39 FLRA 557 (Proposal 2). Training that falls into the former category is encompassed within the right to assign work, while classes or training that fall into the latter category are not encompassed within the right to assign work. See id.

The record does not make clear what the Union intends that the "employee orientation" required by section 2 will involve. In its reply brief, the Union asserts, as a general matter, that orientation does not constitute training that entails the instruction of employees in some facet of their duties and responsibilities. Under Authority precedent, orientation does not constitute such training in some circumstances. See National Federation of Federal Employees, Local 1430 and U.S. Department of the Navy, Naval Facilities Engineering Command, Northern Division, Philadelphia, Pennsylvania, 39 FLRA 581 (1991) (Proposal 3) (Naval Facilities Engineering Command, Philadelphia). However, in other circumstances orientation does constitute such training. See New York State Nurses Association and Veterans Administration, Bronx Medical Center, 30 FLRA 706 (1987) (Proposal 5).

In its reply brief the Union describes orientation as "a formal gathering of employees and managers to explain the logistics of the agency's non-duty operations." It is not clear to us what this means and that it would not necessarily include matters that directly relate to the employees' duties and responsibilities. Additionally, the fact that one of the specified purposes of the employee orientation is to introduce employees "to the regional office . . . functions, and mission" suggests to us that the prescribed orientation might include matters directly relating to the employees' duties and responsibilities. In the absence of information on which to determine more

precisely the Union's intention regarding the content of the required orientation, we cannot determine whether the orientation constitutes training that comes within the ambit of management's right to assign work or whether it is limited to providing employees with information concerning their conditions of employment.11/ We are, therefore, unable to determine whether section 2 is negotiable and will dismiss the petition for review as to it. See, for example, Naval Facitities Engineering Command, Philadelphia (Proposal 1).

2. Section 3

We conclude that the amended version of section 3 is a substantively different proposal than the original provision that the Agency alleged to be nonnegotiable. There is no indication in the record that the Union requested an allegation of nonnegotiability concerning the amended version of section 3. Therefore, the petition for review of section 3 is not properly before us and will be dismissed without prejudice to the Union's refiling at a later date should it meet the conditions for review. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 38 FLRA 263, 268-69 (1990).

 

XIV. Order

The Agency shall rescind its disapproval of Provisions 1, 2, 4, 5, 6, 7, 8, 11, 12, 14. 12/ The petition for review is dismissed insofar as it concerns Provisions 3, 15, 16, 17, 18, and 21.

 

Opinion of Member Armendariz, concurring in part and dissenting in part as to Provisions 2, 6 and 7:

Section 7131(d) of the Statute authorizes negotiations over the use of official time for representational activity.

I agree with my colleagues, for the reasons stated by them and consistent with the court's decision in AFGE v. FLRA, that in order to give meaning to section 7131(d), it must be read as carving out a limited exception to section 7106(a) of the Statute. Unlike the situation in IRS v. FLRA, in which the application of section 7106(a) to section 7121 did not render section 7121 inoperative, the introductory portion of section 7106(a) cannot be applied to section 7131(d) without depriving it of meaning. For this reason, I agree that Provisions 2 and 6, which require the Agency to grant employees' requests for official time to engage in representational activity, absent certain work-related exceptions, are negotiable. For the same reason, I would find that Provision 7, providing official time for Union-sponsored training in collective bargaining matters, is negotiable under section 7131(d) of the Statute.

Having found that Provisions 2, 6 and 7 are negotiable for the above-stated reason, I do not believe, however, that it is necessary to reach the Union's alternative argument that the provisions constitute appropriate arrangements under section 7106(b)(3) of the Statute and, therefore, I do not join in that portion of the majority opinion.




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

1/ Member Armendariz' opinion, concurring in part and dissenting in part as to Provisions 2, 6, and 7, is set forth below at page 52. Member Talkin's dissenting opinion as to Provision 21 is set forth at note 11.

2/ The petition had originally included 44 provisions. However, subsequent to the filing of the petition the parties met and successfully renegotiated a number of the provisions that had been disapproved. Agency statement of position at 1. The Union then withdrew five of the remaining provisions in its reply brief. Those provisions that have been renegotiated or withdrawn by the Union will not be considered further in this decision. In numbering the remaining provisions, we will adopt the numbers that the Union has assigned to the particular provisions in its reply brief.

3/ With respect to several of the provisions that are at issue in this case, the Union first raised the applicability of section 7106(b)(3) in its response to the Agency's statement of position. In such circumstances in the past, the Authority has granted agency requests to supplement statements of position in order to address the section 7106(b)(3) contentions. See, for example, American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 44 FLRA 63, 64 (1992) (Office of Thrift Supervision), petition for review filed sub nom. U.S. Department of the Treasury, Office of Thrift Supervision v. FLRA, No. 92-1170 (D.C. Cir. April 17, 1991); American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587 (1987) (Marine Corps Logistics Base, Albany), affirmed as to other matters sub nom. U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia v. FLRA, No. 88-8006 (11th Cir. Aug. 30, 1990). Here, the Agency made no request to supplement its statement of position.

 4/ As will be discussed further in conjunction with Provision 17, the same is true insofar as section 7120 of the Statute is concerned. That is, according predominance to section 7106 in the context of requests for annual leave and leave without pay to attend to matters governed by section 7120 does not render the latter section inoperative.

5/ In particular, section 7106(a) begins:

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency . . . [.] [Emphasis added.]

Section 7106(b), which concerns the negotiation of procedures and appropriate arrangements, begins:

(b) Nothing in this section shall preclude any agency and any labor organization from negotiating . . . [.] [Emphasis added.]

6/ In KANG, the Authority announced that in addressing management allegations that a union proposal for appropriate arrangements was nonnegotiable because it conflicted with management rights described in section 7106(a) or (b)(1), the Authority would consider whether the proposed arrangement was appropriate for negotiation within the meaning of section 7106(b)(3) or whether it was inappropriate because it excessively interfered with the exercise of management rights.

7/ The other subsections of section 7131 govern the use of official time for the purposes of negotiating collective bargaining agreements, conducting the internal business of a labor organization, and participating in proceedings before the Authority.

8/ Limiting representational activities by employees to non-duty hours could place a severe handicap on the employees. For example, in many areas employees commute from widely dispersed areas and are dependent on car pools or public transportation that operate on limited or inflexible schedules. Thus, their ability to be at the workplace outside of duty hours may be restricted by such factors as geographical circumstances.

9/ Insofar as the Union's arguments imply that it is subject to the LMRDA itself, we note that labor unions that exclusively represent employees working for the Federal government or Government-owned corporations are not covered by the LMRDA. See Hester v. International Union of Operating Engineers, 818 F.2d 1537, 1541-42 (11th Cir. 1987).

10/ In U.S. Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, Nos. 91-1139 and 91-1316 (D.C. Cir. April 14, 1992) (Treasury, Office of Chief Counsel v. FLRA), the Court has questioned whether a provision that would require that the agency approve leaves of absence for employees elected to serve in specified, full-time union offices constitutes an arrangement under section 7106(b)(3) of the Statute. In view of our finding that this provision excessively interferes with management's right to assign work, it is unnecessary for us to address that question in this case.

11/ Member Talkin respectfully dissents from these findings and conclusions. She would find that nothing in the language of section 2 and the Union's statement of intent suggests that the orientation that is required by that section entails the instruction of employees in any facet of their duties. Rather, Member Talkin would find that the record establishes that the requirements imposed by the Union for the orientation that is the subject of this section are limited to acquainting new employees with the regional staff and operations. Thus, based on the record, she would find that the orientation reasonably can be characterized as nothing more than providing employees with information concerning their conditions of employment. In her view, the relationship between such orientation and the duties of new employees is indirect at best, and does not provide a sufficient basis on which to conclude that the orientation entails instruction of employees in some facet of their duties and responsibilities. Consequently, she would conclude that the orientation required by section 2 of this provision is not encompassed within management's right to assign work and that section 2 is negotiable.

12/ In finding that these provisions are negotiable, we make no judgment as to their merits.

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