45:0603(53)NG - - NFFE and Army, Engineering District, Kansas City, MO - - 1992 FLRAdec NG - - v45 p603



[ v45 p603 ]
45:0603(53)NG
The decision of the Authority follows:


45 FLRA No. 53

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 29

(Union)

and

U.S. DEPARTMENT OF THE ARMY

ENGINEER DISTRICT

KANSAS CITY, MISSOURI

(Agency)

0-NG-1919

DECISION AND ORDER ON NEGOTIABILITY ISSUES

July 22, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of four proposals relating to the Agency's implementation of the procurement integrity provision of the Office of Federal Procurement Policy Act, (Procurement Act), codified as amended at 41 U.S.C. § 423 (1988).1/

For the reasons stated below, we find that the record is insufficient to assess the negotiability of the first sentence of Proposal 2, which requires the Agency to invite the Union to participate in all training sessions on procurement integrity. Accordingly, we will dismiss the petition for review as to that portion of the proposal. The second sentence of Proposal 2, which requires that procurement officials receive periodic update training, is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

Proposal 7, which requires that the Agency provide bargaining unit employees with appropriate training, a synopsis of the procedures and requirements of the procurement integrity program, and an opportunity to discuss their concerns about the program before executing the "Procurement Integrity Certification," directly and excessively interferes with management's right to assign work. Therefore, the proposal is nonnegotiable.

Proposal 8, which defines the term "familiar" as used in the "Procurement Integrity Certification for Procurement Officials," is negotiable.

Proposal 9, which constitutes the Union's proposed "Procurement Integrity Certification for Procurement Official" form, is inconsistent with 41 U.S.C § 423(l)(2) and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

II. Preliminary Matters

A. The Timeliness of the Union's Response

On February 25, 1991, the Union filed its petition for review with the Authority. On March 7, 1991, the Authority issued an Order suspending the processing of the negotiability case because the Union filed concurrent unfair labor practice charges and had selected to proceed first with the unfair labor practice proceedings. On August 9, 1991, the Authority issued an Order resuming processing of the negotiability case following the disposition of the charges. The Agency was given 30 days from the date of receipt of the Authority's Order to file a statement of position, as provided under section 2424.6 of the Authority's Rules and Regulations. The Union was given 15 days from the date of receipt of the Agency's statement of position to file a response with the Authority, as provided under section 2424.7 of the Authority's Rules and Regulations. The Agency filed its statement of position on September 11, 1991, and the Union claims to have received it on September 26, 1991.

The Union's response was hand-delivered to the Authority's docket room after 5:00 p.m. on Friday, October 11, 1991. The actual date of filing, therefore, was Tuesday, October 15, 1991.2/ On October 18, 1991, the Authority issued an Order requiring the Union to show cause why its response should be considered by the Authority, noting that the response was due by October 11, 1991. The Authority granted the Union until October 25, 1991, to file a submission and stated that a failure to comply with the Order would result in the Authority not considering the Union's response. The Union did not respond to the Authority's Order. Consequently, we will not consider the Union's untimely response. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 513, 514 (1990).

B. The Union's Appropriate Arrangements Contentions

The Agency contends that the Union "has failed to make any showing in support of its claim that the proposals are appropriate arrangements." Statement of Position at 8. The Agency argues that the Union did not fully address the issue of appropriate arrangements as required by National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard). The Agency adds that the Union's failure to make any showing in support of its claim is similar to the situations presented in American Federation of Government Employees, Local 2062 and U.S. Department of Veterans Affairs, New Orleans Regional Office, New Orleans, Louisiana, 39 FLRA 857, 861 (1991), and International Association of Fire Fighters, Local F-159 and U.S. Department of the Navy, Naval Station Treasure Island, San Francisco, California, 37 FLRA 836, 839 (1990), in which the Authority noted the absence of sufficient records on which to determine whether the proposals were negotiable as appropriate arrangements. The Agency urges the Authority to reach the same result here.

We reject the Agency's contention that the Union has failed to support its claim that the proposals constitute negotiable appropriate arrangements. Instead, we find there is a sufficient basis on which to address the Union's assertion that the proposals are appropriate arrangements for employees adversely affected by the implementation of the Procurement Act.

C. Whether the Proposals Concern Conditions of

Employment

The Agency states that "[i]t is long established that if the subject matter of a proposal is covered by law then the proposal is not negotiable." Statement of Position at 2. The Agency also states that the "proposals at issue impinge on requirements dictated by Congress to Federal agencies under the Office of Federal Procurement Policy Act (41 USC 423)." Id.

Under the Statute, parties are obligated to bargain over proposals concerning conditions of employment, provided that the proposals do not violate law, Government-wide regulation, or an agency regulation for which there is a compelling need. Conditions of employment are defined as personnel policies, practices, and matters whether established by rule, regulation, or otherwise, affecting working conditions. 5 U.S.C. § 7103(a)(14). However, matters that are specifically provided for by federal statute are excluded from the definition of conditions of employment. 5 U.S.C. § 7103(a)(14)(C).

It is well established that where an agency has discretion under applicable law and regulation over a matter affecting conditions of employment, the agency is obligated under the Statute to exercise that discretion through bargaining unless the governing law or regulation specifically requires that only the agency may exercise that discretion. For example, National Federation of Federal Employees and U.S. Department of Agriculture, Forest Service, 35 FLRA 1008, 1014 (1990); National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986), aff'd sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988); National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 759-60 (1980). Thus, it is only where law or applicable regulation vests an agency with exclusive authority or unfettered discretion over a matter that the exercise of the agency's discretion is not subject to negotiation. See, for example, Illinois National Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988); Police Association of the District of Columbia and Department of the Interior, National Park Service, U.S. Park Police, 18 FLRA 348 (1985).

Additionally, the Authority has rejected any interpretation of section 7103(a)(14)(C) that would hold that reference to a particular matter in a statute is sufficient to except that matter from the definition of conditions of employment. 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, 487-88 (1990), decision on remand, 43 FLRA 47 (1991). Rather, "where a statute specifically provides for or establishes a particular aspect of a matter, that aspect of the matter is not included within the conditions of employment about which an agency is obligated to bargain." Id. at 488 (emphasis in original).

We have reviewed the record before us and find that the proposals do not concern matters that are specifically provided for by federal law. Consequently, the proposals are not excepted from the duty to bargain on that basis.

The Agency also states that "not all actions required of an employee by his or her Federal employer lead to a concomitant right to negotiate." Statement of Position at 2. In support, the Agency cites National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981), in which, among other things, the Authority found nonnegotiable a proposal that did not directly relate to conditions of employment of unit employees. As we stated above, the proposals are not excepted from the definition of conditions of employment under section 7103(a)(14)(C) of the Statute. Moreover, as the proposals involve training for employees and other matters that directly relate to the work situation of bargaining unit employees, we find, as a general matter, that the proposals directly relate to conditions of employment of bargaining unit employees. See, for example, American Federation of Government Employees, Department of Education Council of AFGE Locals and Department of Education, 35 FLRA 56, 59-60 (1990) (Education) (proposals relating to training of unit employees concern personnel policies, practices and working conditions within the meaning of section 7103(a)(14) of the Statute).

III. Proposal 2

The union shall be invited to participate in all training sessions regarding procurement integrity. Each employee identified as a "procurement official" will receive periodical [sic] update training.

A. Positions of the Parties

1. The Agency

The Agency contends that the proposal interferes with management's right to assign work because it mandates that a specific type of training course be developed, that employees affected by the Procurement Act attend that training, and that participation be extended to the Union. The Agency also states that, to understand the intent of Proposal 2, the two sentences of the proposal must be read together. The Agency explains that the Union cannot be expected to participate in the training, and employees cannot receive periodic training, unless the Agency is required to develop a training course.

The Agency notes that the Authority consistently has held that an agency's right to assign work encompasses the right to train, or not to train, employees. In support, the Agency cites American Federation of Government Employees, Local 3407, and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557, 560 (1991) (Defense Mapping, Washington). The Agency states that the training at issue in Proposal 2 concerns aspects of procurement integrity for which all procurement and contracting personnel are responsible, is directly related to the duties of the employees, and directly affects employees' work performance. The Agency further explains that the procurement integrity provisions of the Procurement Act not only addresses employees' responsibilities regarding improper business practices and conflicts of interest but also involves the requirement that employees sign certain procurement integrity certification forms. The Agency notes that a "[f]ailure to fulfill these certification responsibilities will result in the employee's violation of the law and [G]overnment wide regulation governing procurement integrity." Statement of Position at 3.

The Agency also argues that Proposal 2 is similar to a proposal in National Federation of Federal Employees, Local 1437 and United States Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1055-56 (1990) (Army Research, Picatinny), which required the agency to allow five employees designated by the union to attend a specific training course at least once each year during the life of the parties' agreement and which the Authority found was nonnegotiable. The Agency argues that Proposal 2 is similar in that it proposes that all procurement officials attend periodic procurement integrity training. The Agency states that the only difference between Proposal 2 and Army Research, Picatinny is that a specific count of employees was not made and the Union did not specify the length of time between each class.

The Agency also argues that Proposal 2 mandates that training be given and, on this basis, is distinguishable from Proposal 1 in Education, 35 FLRA at 61, in which a proposal requiring the agency to consider employee training requests was found negotiable. The Agency maintains that, by the use of the words "will receive," Proposal 2 mandates that training be given and does not suggest that the Agency can only "consider" a request for training. Statement of Position at 4. The Agency also states that the proposal "mandates participation of [U]nion representatives in the training, rather than allowing the [A]gency to consider for the training only those who need and are eligible for the training." Id.

2. The Union

As noted above, the Union's response was untimely filed and has not been considered. In its petition for review, the Union did not specifically address each proposal but rather made statements that are applicable to all the proposals in dispute. The Union stated that the proposals are intended to apply only to bargaining unit employees, are appropriate arrangements for employees adversely affected by the implementation of the Procurement Act, and are "clear on their face when read in the context of the entire proposal." Petition for Review at 1. The Union maintained that the proposals are not in conflict with the Procurement Act, the Statute, or Government-wide rules and regulations.

B. Analysis and Conclusions

We find that there is insufficient information in the record on which to make a negotiability determination with respect to the first sentence of the proposal. Therefore, we will dismiss the petition for review as to that sentence. We also find that, although the second sentence of the proposal directly interferes with management's right to assign work, it is negotiable as an appropriate arrangement.

1. The First Sentence

The first sentence of the proposal states that the Union shall be invited to participate in all procurement integrity training sessions. When read in conjunction with the second sentence of the proposal, it is apparent that the training sessions are those the Union seeks to establish for employees identified as procurement officials. The Agency contends that the proposal interferes with the right to assign work by preventing the Agency from considering for training "only those who need and are eligible for the training." Statement of Position at 4. The Union did not explain the intent of Proposal 2 other than to state that it is clear on its face.

Based on the record before us, we are unable to determine the negotiability of the first sentence. Critical to an assessment of its negotiability is the meaning to be ascribed to the term "participate." However, neither party has addressed the meaning of that term. For example, if the intent of the proposal is to give the Union an opportunity to assist in conducting the training sessions, the proposal would be found nonnegotiable on the basis that it interferes with the right to assign work. See National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA No. 30, slip op. at 19-22 (1992) (proposal providing a union representative an opportunity to address formal training classes for up to 15 minutes during duty hours, at which job-related training would be given, excessively interfered with management's right to assign work). We would reach a similar result if the proposal is intended to provide instruction to the Union representatives in connection with the performance of their job-related duties. See Defense Mapping, Washington, 39 FLRA at 560. Alternatively, if the proposal is designed to permit the Union to attend and observe the training sessions, then we would examine whether the Union had a representational interest in addressing employee concerns related to the training. Without a clear indication of the meaning of the term participate, however, we are unable to assess the negotiability of the first sentence of the proposal.

The parties bear the burden of creating a record on which a negotiability determination can be made. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). A party failing to meet this burden acts at its peril. Accordingly, as we are unable to determine whether the first sentence of Proposal 2 is negotiable, we will dismiss the petition for review as to that sentence. See also 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, 747 (1990).

2. The Second Sentence

The second sentence of the proposal provides that employees identified as procurement officials will receive periodic update training. The Union states that the proposal applies only to bargaining unit employees. As explained by the Agency, the training concerns aspects of the procurement integrity process for which all procurement and contracting personnel are responsible, is directly related to the duties of employees, and directly affects their work performance. Thus, we find that the training encompassed by the second sentence is directly related to the duties of those bargaining unit employees who are identified as procurement officials. The Authority previously has held that proposals requiring agencies to provide training to employees consisting of instruction on their duties and responsibilities directly interfere with the right to assign work. See Defense Mapping, Washington, 39 FLRA at 560. As the second sentence requires the Agency to provide training for employees relating to the performance of their duties, we conclude that the second sentence directly interferes with management's rights under section 7106(a)(2)(B) of the Statute.

However, we further find that the second sentence is negotiable as an appropriate arrangement. To determine whether a proposal constitutes an appropriate arrangement, we must decide whether it is intended as an arrangement for employees adversely affected by the exercise of a management right, and whether it is appropriate because it does not excessively interfere with the exercise of a management right. Kansas Army National Guard, 21 FLRA at 31-33.

Initially, we find that the second sentence is intended as an arrangement for employees who may be adversely affected by the exercise of management's right to assign work. As noted by the Agency, the procurement integrity provisions of the Procurement Act address various employee responsibilities and require that employees sign certain procurement integrity certification forms. The Agency acknowledges that an employee who fails to fulfill the certification responsibilities will be found to have violated law and Government-wide regulations. In this connection, we note that 41 U.S.C. § 423(h) provides that employees who engage in conduct prohibited by the Procurement Act "shall be subject to removal or other appropriate adverse personnel action pursuant to the procedures specified in chapter 75 of title 5 or other applicable law or regulation." 41 U.S.C. § 423(h)(2). By requiring the Agency to provide periodic update training to procurement officials, the second sentence of the proposal is designed to apprise employees of new or changed requirements relating to the performance of their duties. Thus, with the training, employees would be provided with the information needed to avoid the legal consequences of failing to fulfill the requirements of the Procurement Act.

We further find, after balancing the competing interests of the Agency in being able to assign work and the interests of employees in ensuring that they have appropriate training to perform the requirements of the Procurement Act, that the second sentence would not excessively interfere with the right to assign work. Periodic update training would afford obvious benefits to employees. For example, it would be easier for employees to keep abreast of changes in law or regulation that affect the performance of their duties if the Agency were to provide a systematic means of dispensing that information. Additionally, as a general matter, employees would benefit from such training by improving their knowledge, proficiency, ability, and skill in carrying out their official duties. It is also noteworthy that a logical consequence of improved individual performance would be the beneficial effect on the Agency's administration of its procurement program.

On the other hand, the second sentence would require the Agency to take whatever measures are necessary to provide training for employees on a recurring basis. However, both the Procurement Act and its implementing regulations already require the head of each federal agency to establish training on procurement ethics.3/ At a minimum, the Procurement Act and the implementing regulations require that the training program include the distribution of a written explanation of certain provisions of the Procurement Act. Thus, the second sentence simply requires the Agency to supplement the training that is required by law and regulation. In addition, the Agency would retain the discretion to determine the content, duration, and timing of the training. In this regard, the second sentence does not specify the type of training that the Agency will provide, such as formal classes or on-the-job training, nor does it dictate the schedule of training, its duration, or who will provide the actual training. See Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 837-38 (1991) (Commerce, Patent Office) (portion of proposal requiring that agency provide adequate training for examiners found not to excessively interfere with right to assign work insofar as agency retained discretion to determine the type of training, its schedule, duration, and who would conduct the training).

In our view, the burden imposed on the Agency to provide periodic update training is minimal when compared with the benefits afforded to employees by providing such training. Consequently, we conclude that the second sentence of Proposal 2 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. Finally, we find that Army Research, Picatinny, relied on by the Agency, is distinguishable. Although the Authority found that a proposal requiring the agency to provide training directly interfered with the right to assign work, a result we also reach here, the Authority did not address whether the proposal constituted a negotiable appropriate arrangement because that issue was not before the Authority. In contrast, the Union claimed that the second sentence constitutes a negotiable appropriate arrangement and, based on the foregoing analysis, we have concluded that it does.

IV. Proposal 7 4/

No bargaining unit employee will be required to execute the "Procurement Integrity Certification" until they have been provided appropriate training, the synopsis identified in item 4 above, and the opportunity to discuss areas of concern with the agency official charge [sic] with oversight of the procurement integrity program.

A. Positions of the Parties

The Agency contends that the proposal is outside the duty to bargain pursuant to section 7117(a)(1) of the Statute because it prevents the Agency from complying with law and regulation. More specifically, the Agency contends that if Proposal 7 were found negotiable, it would require federal officials to provide training before employees could be required to execute procurement integrity certifications. The Agency argues that 41 U.S.C. § 423(e)(3),5/ provides that a procurement official may be required to execute a procurement integrity certification at any time "during the conduct of any federal agency procurement of products or services." Statement of Position at 2. The Agency also states that the proposal is inconsistent with 48 C.F.R. § 3.104-9(c)(2), which "mandates that employees will execute the procurement integrity certification form when a contract award or modification is made." Id. at 5. Additionally, the Agency claims that the proposal is inconsistent with 48 C.F.R. § 3.104-12(a)(2), which provides that "as a condition of serving as a procurement official, each employee must certify that he or she is familiar with certain provisions of [the] Act." Id.

The Agency further contends that Proposal 7 interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency explains that employees engaged in executing contracts for the Agency are required to execute certifications when work is completed. The Agency argues, however, that the proposal would prevent the assignment of work involving the execution of contracts until employees had completed the training provided by Proposal 2. The Agency states that Proposal 7 is similar to Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 537 (1990) (VAMC, Milwaukee), in which the Authority found nonnegotiable a proposal limiting the assignment of work to those employees who were qualified to perform the work or were undergoing training to perform such work. The Agency also asserts that Proposal 7 has the identical effect of imposing conditions on management's right to assign work as Proposal 14 in National Union of Hospital and Health Care Employees, AFL-CIO, District 1199 and Veterans Administration Medical Center, Dayton, Ohio, 28 FLRA 435, 461 (1987), decision on remand, 33 FLRA 281 (1988), which required management to provide some form of training to newly hired employees as a condition precedent to making specific work assignments and which was held nonnegotiable.

The Union's position is as stated in connection with Proposal 2.

B. Analysis and Conclusions

We conclude that Proposal 7 is nonnegotiable because it directly and excessively interferes with management's right to assign work.

Initially, we note that the Agency has made a number of arguments with respect to certification requirements that are imposed on a variety of persons and at various stages of the procurement process. We find, however, that the type of certification encompassed by the proposal is limited to that which procurement officials are required to complete as a condition of serving as a procurement official. We reach this conclusion because the proposal itself refers to the "Procurement Integrity Certification." That is the title of a specific form, referred to in 48 C.F.R. §§ 3.104-12(a)(2) and (3), and an example of which is set forth at 48 C.F.R. § 53.302-333.6/ The requirement that procurement officials complete a certification as a condition of serving in that capacity emanates from 41 U.S.C. § 423(l)(2). This certification is different from that which procurement officials may be required to complete under 41 U.S.C. § 423(e)(3) that is relied on by the Agency. Additionally, although the proposal refers to bargaining unit employees, we find that the proposal is intended to apply to procurement officials only and not to contracting officers, to whom 48 C.F.R. § 3.104-9(c)(2) applies. We reach this conclusion because the Procurement Integrity Certification form itself applies only to procurement officials. Moreover, the synopsis identified in Proposal 4, which the proposal requires the Agency to provide to employees, applies only to procurement officials.

In sum, we conclude that the certification referred to in Proposal 7 is that which procurement officials are required to complete as a condition of serving in that capacity. Therefore, the Agency's arguments as to the applicability of 41 U.S.C. § 423(e)(3) and 48 C.F.R. § 3.104-9(c)(2) are inapposite and we need not address them further.

The Agency's remaining arguments are that the proposal is inconsistent with 48 C.F.R. § 3.104-12(a)(2) and with the right to assign work under section 7106(a)(2)(B) of the Statute. For the following reasons, we find that Proposal 7 directly and excessively interferes with the right to assign work. In view of this conclusion, we will not address the claimed inconsistency with the cited regulation.

Proposal 7 provides that before employees can be required to execute the Procurement Integrity Certification, they will be given adequate training, information concerning the regulations and procedures of the procurement integrity program, and an opportunity to discuss concerns with a specified Agency representative. According to the Agency, the proposal would prevent management from assigning duties involving the execution of procurement contracts until all the requirements set forth in the proposal have been met. This assertion is uncontradicted. Therefore, we find that by requiring the Agency to provide training and information to employees before requiring them to complete the requisite certification, the proposal would limit the assignment of duties attendant to the procurement process for an unspecified period of time until the requirements of the proposal have been satisfied. It is well established that management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See, for example, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 399 (1990); VAMC, Milwaukee, 35 FLRA at 537-39. Proposal 7 would place conditions on management's ability to assign work involving the procurement process until the requirements set forth in the proposal have been met. We find that such restrictions on the Agency's ability to assign duties to employees constitute a direct interference with the right to assign work. Accordingly, we find that the Proposal 7 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.

Next, we address whether the proposal constitutes a negotiable appropriate arrangement. As noted in our discussion concerning the second sentence of Proposal 2, there are possible penalties for employees who fail to comply with provisions of the procurement integrity program. By requiring the Agency to provide employees with appropriate training and information relevant to the procurement integrity program before they execute the applicable certification that enables them to operate as procurement officials, Proposal 7 constitutes an arrangement for employees who may be adversely affected by management's exercise of its right to assign work relating to the procurement integrity process. Therefore, we find that Proposal 7 is intended as an arrangement.

We further find, however, that the proposal would excessively interfere with the right to assign work. On the one hand, requiring management to provide employees with appropriate training and other information relevant to the procurement integrity program would assist employees in avoiding the adverse consequences of failing to adhere to the requirements of the Procurement Act and would serve to improve their performance in carrying out the provisions of the Procurement Act. On the other hand, the proposal would preclude the Agency from assigning duties involving the procurement process until the Agency fulfilled the requirements of the proposal. Thus, the proposal would place a severe limitation on the Agency's right to assign work. As a result, until the required training, information, and discussion period was provided, procurement officials would not be able to complete the assigned duties necessary for the Agency to obtain the property or services to support the Agency's mission, such as drafting, reviewing, and approving specifications for particular procurement actions; preparing or issuing procurement solicitations; evaluating bids or proposals; selecting sources for procurements; conducting negotiations for procurements; and reviewing and approving awards or modifications of procurement contracts. See 41 U.S.C. § 423(p)(3)(A). See, also, Overseas Education Association and U.S. Department of Defense Dependents Schools, FPO, Seattle, 42 FLRA 197, 206-07 (1991), petition for review denied sub nom. Overseas Education Association v. FLRA, 961 F.2d 36 (2d Cir. 1992) (proposal that students be dismissed to allow teachers to prepare for open house program excessively interfered with right to assign work insofar as proposal would have unduly hampered agency's ability to efficiently and effectively conduct its operations). On balance, therefore, we conclude that Proposal 7 excessively interferes with management's right to assign work under section 7106(a)(B)(2) of the Statute.

V. Proposal 8

The term "familiar" as used in the "Procurement Integrity Certification For Procurement Officials" shall have the following meaning:

Familiar - a general knowledge of, rather than practical application.

A. Positions of the Parties

The Agency contends that the proposal's definition of the word "familiar" is contrary to that ascribed by Congress in 41 U.S.C. § 423(e)(1)(B)(i).7/ The Agency states that under that section, "contracting officers, and others participating in the preparation or submission of a contract bid, must certify he or she is familiar with particular sections of the procurement integrity provision and its applicable implementing regulations." Statement of Position at 6. The Agency argues, citing various dictionary definitions of the word, that the Union is attempting to bargain a broader meaning of "familiar" than that normally accepted. The Agency states that, "absent discussion in the legislative history, Congress did not intend to attach a meaning to the word familiar other than the one generally accepted[,]" and that "[i]t is not appropriate for the [U]nion to substitute its judgment for that of Congress[.]" Id.

The Union's position is the same as that stated in connection with Proposal 2.

B. Analysis and Conclusions

Proposal 8 concerns the meaning of the term "familiar" as used in the Procurement Integrity Certification for procurement officials. Consistent with the plain language of the proposal and our discussion of Proposal 7, we find that the procurement integrity certification encompassed by the proposal is that which procurement officials must execute as a condition to serving in that capacity. In contrast, 41 U.S.C. § 423(e)(1)(B)(i), which the Agency claims is inconsistent with the proposal, involves certifications by officers or employees of contractors with respect to participation in bids or offers by competing contractors. Thus, the certification required under section 423(e)(1)(B)(i) is different from that set forth in the proposal and does not provide a basis on which to find the proposal nonnegotiable.

We note, however, that the term "familiar" does appear in the procurement integrity certification form set forth at 48 C.F.R. § 53.302-333 that agencies may use. The Agency makes no argument that defining "familiar" for purposes of that form in the manner set forth in the proposal is inconsistent with any law, rule, or regulation, and none is apparent to us. Consequently, we find that Proposal 8 is negotiable.

VI. Proposal 9

"Procurement Integrity Certification for

Procurement Official"

As a condition of serving as a procurement official, I (type or print name) hereby certify that I am familiar with of [sic] the provisions of subsections 27(b), (c), and (e) of the Office of Federal Procurement Policy Act (41 USC 423) as amended by section 814 of Public Law 101-189. I further certify that I will not engage in any conduct prohibited by such subsections and will report to the contracting officer any information concerning a violation or possible violation of subsections 27(a), (b), (d), or (f) of the Act. A written explanation of subsections 27(a) through (f) has been made available to me. I understand that should I leave the Government during the conduct of a procurement for which I have served as a procurement official, I have a continuing obligation under section 27 not to disclose proprietary or source selection information relating to that procurement and a requirement to so certify.

This certification shall not be construed in any way to be a waiver of my Constitutional rights.

A. Positions of the Parties

According to the Agency, the proposal constitutes the Union's proposed procurement integrity certification form. The Agency argues that, as such, the proposal is inconsistent with 48 C.F.R. §§ 3.104-9(c)(2) and 3.104-12(a)(2). The Agency explains that, under those regulations, procurement officials are required to report not only violations of the Procurement Act, but violations of the implementing regulations as well. The Agency states that the proposal deletes any reference to the implementing regulations that are contained in the Federal Acquisition Regulation.8/ The Agency also states that it would withdraw its allegation of nonnegotiability if the Union's intent is to include a reference to the applicable implementing regulations.

The Union's position is as stated in connection with Proposal 2.

B. Analysis and Conclusions

As we noted previously, 41 U.S.C. § 423(l)(2) and 48 C.F.R. § 3.104-12(a)(2) require procurement officials to execute certifications as a condition of serving in that capacity. An optional certification form that agencies may use is referenced in 48 C.F.R. § 3.104-12(a)(3) and, as noted earlier, is set forth at 48 C.F.R. § 53.302-333. The Union's proposal constitutes an attempt to negotiate the certification form that procurement officials will execute. For the following reasons, we find that the proposal is inconsistent with federal law. Therefore, the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute.

As relevant to our disposition of the proposal, 41 U.S.C. § 423(l)(2) of the Procurement Act states that the procurement ethics program shall

(2) require each such procurement official, as a

condition of serving as a procurement official, to certify that he or she . . . will report immediately to the contracting officer any information concerning a violation or possible violation of subsection (a), (b), (d), or (f) of this section, or applicable implementing regulations.

Clearly, the Procurement Act requires procurement officials to certify that they will report violations and possible violations of both the Procurement Act and the applicable implementing regulations. The proposal, however, does not include the statutory requirement to certify that employees will report actual and possible violations of the applicable implementing regulations. Although the Agency did not expressly note any differences in unlawful conduct specified in the regulations, as compared with that set forth in the referenced sections of the Procurement Act, it is an elementary rule of statutory construction 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). Thus, 41 U.S.C. § 423(l)(2) requires that violations of both law and regulation must be reported. By deleting the reference to applicable implementing regulations, the proposal effectively eliminates that requirement. As such, the proposal is inconsistent with federal law. Pursuant to section 7117(a)(1) of the Statute, the proposal is nonnegotiable.

Because of this finding, we need not address the Agency's contentions that the proposal is inconsistent with various regulatory provisions. Likewise, we need not address the Union's contention that the proposal constitutes an appropriate arrangement under 7106(b)(3) of the Statute. That section applies only when management exercises one of the reserved rights set out elsewhere in section 7106 and not when a proposal is found to be inconsistent with law. See, for example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 37 FLRA 500, 511 (1990).

VII. Order

The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning the second sentence of

Proposal 2 and Proposal 8.9/ We dismiss the petition for review as to the first sentence of Proposal 2, Proposal 7, and Proposal 9.

 

APPENDIX

41 U.S.C. § 423(e)(1)(B)(i) provides in part:

(e) Certification and enforcement matters

(1) A Federal agency may not award a contract for the procurement of property or services to any competing contractor . . . unless the officer or employee of such contractor responsible for the offer or bid for such contract[.]

. . . .

(B) certifies in writing to such contracting officer that each officer, employee, . . . of such competing contractor who has participated personally and substantially in the preparation or submission of such bid or offer, . . . has certified to such competing contractor that he or she---

(i) is familiar with, and will comply with, the requirements of subsection (a) [entitled "[p]rohibited conduct by competing contractors"] of this section and applicable implementing regulations; (emphasis added)

41 U.S.C. § 423(e)(3) provides:

(e) Certification and enforcement matters

(3) The head of a Federal agency may require any procurement official or any competing contractor, at any time during the conduct of any Federal agency procurement of property or services--

(A) to certify in writing to the head of such agency that such procurement official or the officer or employee of the competing contractor responsible for the offer or bid for such contract or the modification or extension of such contract, as the case may be, has no information concerning a violation or possible violation of subsection (a), (b), (d), or (f) or this section, or applicable implementing regulations, pertaining to such procurement; or

(B) to disclose to the head of such agency any and all such information and to certify in writing that any and all such information has been disclosed.

41 U.S.C. § 423(l) provides:

The head of each Federal agency shall establish a procurement ethics program for its procurement officials. The program shall, at a minimum--

(1) provide for the distribution of written explanations of the provisions of subsections (b), (c), and (e) of this section to such procurement officials; and

(2) require each such procurement official, as a condition of serving as a procurement official, to certify that he or she is familiar with the provisions of subsections (b), (c), and (e) of this section, and will not engage in any conduct prohibited by such subsection, and will report immediately to the contracting officer any information concerning a violation or possible violation of subsection (a), (b), (d), or (f) of this section, or applicable implementing regulations.

48 C.F.R. § 3.104-9(c)(2) provides:

Immediately prior to contract award or execution of a contract modification, the contracting officer shall execute the ["Contracting Officer Certificate of Procurement Integrity"] the following certificate and maintain the completed certificate in the contract file.

48 C.F.R. § 3.104-12 provides:

(a) Subsection 27(l) of the [Office of Federal Procurement Policy] Act provides that the head of each Federal agency shall establish a procurement ethics training program for its procurement officials. The program shall, as a minimum--

(1) Provide for the distribution of a written explanation of subsections 27 (a) through (f) of the Act to such procurement officials; and

(2) Require each such procurement official, as a condition of serving as a procurement official, to certify in writing that he or she is familiar with the provisions of subsections 27 (b), (c), and (e) of the Act and will not engage in any conduct prohibited by such subsections, and will report immediately to the contracting officer any information concerning a violation or possible violation of subsection 27 (a), (b), (d), or (f) of the Act as implemented in the [Federal Acquisition Regulation] FAR.

(3) Certification made under section 27 as originally enacted and implemented in the FAR do not satisfy the certification requirements of subparagraph (a)(2) of this subsection. Agencies may use Optional Form 333 at 53.302-333 to obtain the certifications required by subparagraph (a)(2) of this subsection.

48 C.F.R. § 53.302-333, provides:

As a condition of serving as a procurement official, I hereby certify that I am familiar with the provisions of subsections 27(b), (c), and (e) of the Office of Federal Procurement Policy Act (41 USC 423) as amended by section 814 of Public Law 101-189. I further certify that I will not engage in any conduct prohibited by such subsections and will report immediately to the contracting officer any information concerning a violation or possible violation of subsections 27(a), (b), (d), or (f) of the Act and applicable implementing regulations. A written explanation of subsections 27(a) through (f) has been made available to me. I understand that, should I leave the Government during the conduct of a procurement for which I have served as a procurement official, I have a continuing obligation under section 27 not to disclose proprietary or source selection information relating to that procurement and a requirement to so certify.




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

1/ The petition for review contained an additional proposal. However, in its statement of position, the Agency claims that after the petition for review was filed the parties reached agreement on that proposal. As there is no basis in the record on which to hold otherwise, we find that the proposal is not in dispute and we will not consider it further. 

2/ Under section 2429.24(a) of the Authority's Rules and Regulations, "[d]ocuments hand-delivered for filing must be presented in the Docket Room not later than 5 p.m. to be accepted for filing on that day." The response was considered filed on Tuesday, October 15, 1991, because, due to a Federal holiday on October 14, 1991, that was the next business day following delivery.

3/ The pertinent provisions of 41 U.S.C. § 423(l) and 48 C.F.R. § 3.104-12(a) are set forth in the Appendix to this decision.

4/ The reference to "item 4" is to Proposal 4 in the petition for review. Proposal 4, which is not in dispute, states:

All "procurement officials" in the bargaining unit shall be given a clear and complete synopsis of the requirements and procedures of the procurement integrity program.

Petition for Review, Enclosure No. 1

5/ For the text of 41 U.S.C. § 423(e)(3), as well as the cited regulations, see the Appendix to this decision.

6/ The text of 48 C.F.R. § 53.302-333 is set forth in the Appendix.

7/ The text of 41 U.S.C. § 423(e)(1)(B)(i) is set forth in the Appendix. 

8/ The implementing regulations are set forth in various provisions of title 48 of the Code o