45:0696(62)NG - - NTEU and Treasury, Financial Management Services - - 1992 FLRAdec NG - - v45 p696



[ v45 p696 ]
45:0696(62)NG
The decision of the Authority follows:


45 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

FINANCIAL MANAGEMENT SERVICE

(Agency)

0-NG-1971

DECISION AND ORDER ON NEGOTIABILITY ISSUES

July 24, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of five provisions of a negotiated agreement that were disapproved by the Agency head under section 7114(c) of the Statute.1/

For the reasons set forth more fully herein, we conclude as specifically set forth below.

Provision 1, which concerns the use of official time by Union representatives and employees, is within the duty to bargain. Provision 2, which relates to the selection technique used by selecting officials is negotiable as a procedure under section 7106(b)(2) of the Statute. Provision 3, which concerns awards for employees who are detailed to higher-graded positions, does not conflict with a Government-wide regulation and is negotiable. Provision 4, which sets forth actions that the Agency will take during an employee's probationary period, is nonnegotiable. Provision 5, which pertains to the use of annual leave and leave without pay, excessively interferes with management's right to assign work and is nonnegotiable.

II. Provision 1

Article 9, section 8, paragraph c

The Union representative will be permitted to contact/meet with the employee unless the employee's and/or Union representative's absence would create a severe workload problem. If the employee cannot be released, the supervisor shall specify in writing: (1) the specific reason for the denial and (2) the earliest time available when the employee and or Union representative can be released to carry out their rights and duties. The Union representative shall notify the employee's supervisor before contacting or meeting with an employee on duty.

[Only the underscored portion is in dispute.]

A. Positions of the Parties

1. The Agency

The Agency asserts that the disputed portion of this provision is nonnegotiable because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency contends that Authority precedent supports a conclusion that proposals requiring an agency to grant an employee's request for leave without regard for the agency's need for an employee's services during the period covered by the request interfere with management's right to assign work. In this regard, the Agency cites, among others, National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1516 (1987), affirmed in part and reversed in part as to other matters sub nom. Department of Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989). The Agency argues that by requiring it to grant permission for employees and Union representatives to meet unless a severe workload problem would result, this provision "unduly limits the Agency's right to determine the necessity for the employee's and representative's presence at work" and directly interferes with management's right to assign work. Statement of Position at 6. The Agency contends that the "severe workload problem" standard places a significant restriction on its ability to accomplish its work.

In its supplemental statement of position, the Agency states that, in view of the Supreme Court's decision in Department of the Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990) (IRS v. FLRA), it does not concede that the application of the Authority's excessive interference test, which was set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), is proper. The Agency asserts that, based on IRS v. FLRA, no appropriate arrangement negotiated in accordance with section 7106(b)(3) can interfere at all with the exercise of management's rights under section 7106(a) of the Statute.

The Agency contends that the threshold portion of the test that was set forth in KANG requires that the Union show that this provision constitutes an arrangement for adversely affected employees. The Agency asserts that to satisfy this portion of the test, the Union must show that the provision addresses reasonably foreseeable adverse effects on employees that flow from the exercise of management's rights. According to the Agency, this provision fails to pass the threshold portion of the test that was set forth in KANG and, therefore, it does not constitute an arrangement under section 7106(b)(3) of the Statute. The Agency asserts that in the absence of an absolute right of employees and union representatives to meet at any time, irrespective of work needs, the adverse effects articulated by the Union "are speculative." Supplemental Statement of Position at 3. The Agency disputes the Union's claim that the possibility of the Union being charged with a failure in its duty of fair representation supports a finding that the provision is an arrangement. The Agency argues that section 7106(b)(3) of the Statute is directed at adverse effects on employees rather than on the Union. Additionally, the Agency contends that this claim is speculative because "[e]ven assuming [a duty of fair representation charge] were filed, the [U]nion could clearly invoke an employer's lack of cooperation" with respect to the release of employees on official time to perform representational activity "as a defense to such an unfair labor practice allegation." Id.

The Agency also challenges the validity of the Union's claim that without the criteria articulated in the provision, the Agency would control the representational duties of the Union. In this regard, the Agency states that "[t]here is simply no basis in fact for the claim that management's failure to grant an employee or [U]nion representative release from his work in accordance with the strict standard set forth in the proposal results in sole control of the [U]nion's representational duties by the Agency." Id.

The Agency argues that even assuming that this provision constitutes an arrangement, it is not appropriate because it excessively interferes with management's right to assign work. The Agency describes the provision as establishing a "single, rigorous standard that would be determinative of whether an employer could assign work" in the face of a request to permit an employee and Union representative to meet. Id. at 4. The Agency also contends that the provision does not recognize that the degree to which employees may be adversely affected by a refusal to grant such a request will vary depending on the circumstances. The Agency asserts that, on balance, the restriction placed on management's right to assign work outweighs the benefits to employees.

2. The Union

The Union contends that the Agency's reliance on Authority decisions relating to leave is misplaced in that this provision deals with the Union's use of official time under section 7131 of the Statute. Citing Military Entrance Processing Station, Los Angeles, California, 25 FLRA 685 (1987) (Military Entrance Processing Station), the Union argues that, under Authority precedent, section 7131 creates an exception to management's right to assign work. The Union asserts that the right to negotiate official time arrangements must prevail over management's rights under section 7106 of the Statute.

The Union contends that if the Agency were allowed the unilateral right to determine when and if an employee could contact a Union representative, the Agency could effectively deny an employee his or her right under section 7102 of the Statute to engage in collective bargaining. Additionally, the Union asserts that such circumstance would place the Agency in a position to control and dominate the Union in violation of section 7116(a)(3) of the Statute and could result in the Agency placing the Union in a position that would subject the Union to charges that it had violated its duty of fair representation.

The Union argues alternatively that this provision is negotiable as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute under the test that was set forth in KANG. The Union contends that the impact on employees and the Union is substantial in that employees can be denied their right to full and adequate representation and Union officials can be forced to violate their duty of fair representation by the "arbitrary actions of management." Reply Brief at 4. The Union maintains that employees have no control over the adverse impact because employees "almost exclusively" seek to speak to the Union in response to actions taken by management. Id. The Union asserts that the Agency has not shown more than an insignificant effect on the exercise of its right to assign work and that the "severe workload problem" standard contained in the provision "does not prevent the [A]gency from acting at all." Id. at 5.

The Union contends that the balance of employee and Union rights versus management rights must fall in favor of employees and the Union. In this regard, the Union argues that "[t]he statutory right to representation and the duty to represent employees must take precedence over a nebulous need to get work done, unless the interruption in work is severe." Id. at 5. The Union states that under the provision the Agency can deny the request for an employee and a Union representative to meet if the Agency cannot make do without an employee or representative, if no alternative staff is available, and if external deadlines must be met. The Union contends that the provision allows the Agency to meet its work assignment needs with only minor impact. The Union asserts that the Agency has not shown how this proposal interferes with the efficient and effective operation of Government.

In its reply to the Agency's supplemental statement of position, the Union argues that the adverse effect resulting from the denial of official time for a meeting between employees and Union representatives is clearly and reasonably foreseeable. The Union contends that in the absence of the provision or similar language, the Agency would have absolute control over whether an employee could ever meet with the Union.

The Union argues that the Authority should reject the Agency's assertion that the "[S]tatute's protections against adverse impact do not apply to the Union." Reply to Agency's Supplemental Statement of Position at 2. The Union asserts that the Union is the equivalent of a group of employees. Additionally, the Union asserts that the fact that it might have a sound defense to a duty of fair representation charge "does not ameliorate the adverse impact of being a party to a [d]uty of [f]air [r]epresentation case due to circumstances beyond [the Union's] control." Id. at 3.

In response to the Agency's contention that the provision is inappropriate as an arrangement because it establishes a single standard, the Union asserts that "[i]f all adverse impact cases were analyzed using this standard of inflexibility, all would be declared nonnegotiable." Id. The Union argues that the purpose of a collective bargaining agreement is to establish one rule for a given situation and to provide some degree of uniformity and fairness in the workplace.

B. Analysis and Conclusions

Initially, we reject the Agency's argument that the 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 right under section 7106(a). See, for example, American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 44 FLRA 63 (1992), petition for review filed sub nom. United States Department of the Treasury, Office of Thrift Supervision v. FLRA, No. 92-1170 (D.C. Cir. Apr. 17, 1992). By its terms, 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).2/ See Overseas Education Association v. FLRA, 876 F.2d 960, 965 (D.C. Cir. 1989) ("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.)); American Federation of Government Employees, AFL-CIO, Local 2782 v. FLRA, 702 F.2d 1183 (D.C. Cir. 1983) (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.

This provision is similar to Provisions 2 and 6 in National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA No. 30 (1992) (BATF), in that this provision places restrictions on the Agency's ability to deny a request that an employee and/or Union representative be excused from performing assigned duties in order to meet with each other. The Union contends, as did the Union in BATF, that this provision concerns the use of official time, which operates as an exception to management's rights under section 7106. In BATF, we reviewed our approach to the relationship between section 7131(d) of the Statute, which authorizes the negotiation of official time, and section 7106, which concerns management rights, in view of the Court's decision in IRS v. FLRA.

Prior to BATF, the Authority held that section 7131(d) carved out an exception to section 7106(a) and 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. In reviewing the approach that was adopted in Military Entrance Processing Station, we stated in BATF:

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 phrase "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).

BATF, 45 FLRA No. 30, slip op. at 9-10.

In determining whether to adopt this approach in BATF, we expressed our concern that subordinating section 7131(d) to section 7106(a) of the Statute would effectively void section 7131(d). We noted the 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." Id. at 10. In view of the need to give effect to all provisions of the Statute, we stated that we read IRS v. FLRA to apply to situations where according predominance to the rights established by section 7106 could be achieved without eviscerating another provision of the Statute as was the case in IRS v. FLRA. Because sections 7106 and 7131(d) could not be reconciled in a manner that continued to give effect to section 7131(d), we stated that we would continue to carve out an exception to section 7106 "in order to maintain the negotiability, where otherwise warranted, of matters involving official time." Id.

However, as an alternative to finding Provisions 2 and 6 negotiable based on application of the theory set forth above, the majority in that case (Member Armendariz concurring in part and dissenting in part) also analyzed those provisions to determine whether they were negotiable as appropriate arrangements under section 7106(b)(3) of the Statute by applying the analytical framework that was set forth in KANG. As was the circumstance in BATF, the Union in this case, in addition to arguing that this proposal is negotiable under the approach taken in Military Entrance Processing Station, contends that it is negotiable as an appropriate arrangement. Thus, as in BATF, we will analyze this provision to determine whether it constitutes an appropriate arrangement, which is negotiable under section 7106(b)(3).3/

For those reasons expressed in BATF, we conclude that Provision 1 directly interferes with management's right to assign work because it places restrictions on the Agency's ability to deny a request that an employee be excused from performing assigned duties in the circumstances specified in the provision. 45 FLRA No. 30, slip op. at 12.

Provision 1 in this case establishes conditions similar to those established by Provisions 2 and 6 in BATF to govern Agency denials of requests that employees be released from their duties for the purpose of using official time. In BATF the majority found that the use of official time authorized under section 7131(d) is an integral part of the representational process, which, in turn, generally is a response to management actions taken pursuant to the exercise of the rights reserved to management under section 7106 and which have an adverse effect on employees. The majority found that Provisions 2 and 6 were intended to enable employees to address the myriad adverse effects that foreseeably could flow from the exercise of management rights set forth in section 7106 of the Statute and, consequently, constituted an arrangement for employees within the meaning of section 7106(b)(3). Additionally, in BATF the majority found that in those few circumstances where the need to engage in representational activity was not attributable to the exercise of a management right, Provisions 2 and 6 served 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. In this regard, the majority found that agency denials of requests to use official time for a purpose that had been agreed to under section 7131(d) undermined the statutory scheme of enabling employees to protect their work-related interests through collective bargaining.

We view the circumstances regarding Provision 1 in this case as sufficiently similar to those surrounding Provisions 2 and 6 in BATF that the rationale applied to those two provisions is equally applicable here. Thus, for the reasons expressed in conjunction with Provisions 2 and 6 in BATF, we conclude that Provision 1 constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute.

Turning to the issue of whether this arrangement is appropriate, we find that nothing in the record in this case suggests that a different outcome from that reached in BATF is warranted with respect to the second portion of the KANG analysis. Because the reasoning expressed in conjunction with Provisions 2 and 6 in BATF is equally applicable to Provision 1 in this case, we adopt it in this case. Thus, based on an examination of the competing practical needs of the parties, we conclude that the benefits that this arrangement confers on employees outweigh the negative impact on management's right to assign work. Therefore, we conclude that Provision 1 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

III. Provision 2

Article 13, section 10, paragraph E

The Selecting Official will consider all pertinent data on each certified candidate. The selection technique utilized by the selecting official will be uniformly applied in a fair and objective manner to all Service candidates referred to him/her (e.g., if one candidate is interviewed, all will be interviewed).

[Only the underscored portion is in dispute.]

A. Positions of the Parties

1. The Agency

The Agency asserts that this provision directly interferes with management's right to select employees under section 7106(a)(2) of the Statute. The Agency states that it "recognizes that the Authority has found that proposals providing for fair and equitable procedures for selection of candidates are negotiable." Statement of Position at 7. However, the Agency urges that the Authority "reconsider its decisions in this area . . . ." Id. The Agency argues that the Authority has recognized that "fair and equitable" is a substantive term, citing 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, 464-66 (1990) (Naval Underwater Systems Center, Newport), remanded 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. July 23, 1991). The Agency contends that "a proposal requiring that selection criteria be 'fairly and objectively' applied establishes substantive criteria that dictate a selection." Statement of Position at 7.

The Agency asserts that the conclusion that this provision impermissibly intrudes on management's right to select employees "is bolstered by the possibility that the provision will be subjected to arbitral review." Id. The Agency states that its objection does not "lie with the arbitral review process itself, but rather the lack of any standard by which the terms 'fairly' and 'objectively' may be measured." Id. The Agency contends that because the terms are undefined, an arbitrator would be free to substitute his judgment for that of the Agency in the exercise of a management right. The Agency argues that consideration of the effects of arbitral review on the part of agencies is increasingly appropriate in view of the Authority's decision in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service). The Agency states that under Customs Service an arbitrator's interpretation of a contract provision will be subjected to a stricter standard, i.e., abrogation of a management right, than the excessive interference standard used in negotiability determinations. The Agency argues that, therefore, an agency must exclude from the contract "allegedly procedural proposals which have the effect of establishing substantive restrictions that serve to regulate, not the manner of the exercise of the management right, but rather the exercise of the management right itself." Statement of Position at 8.

In its supplemental statement of position, the Agency contends that an employee cannot be adversely affected by the exercise of a management right until that right has been exercised. The Agency argues that this provision cannot operate as an arrangement because it operates simultaneously with, rather than subsequent to, the exercise of management's right to select. The Agency asserts that assuming that the proposal is an arrangement, it is not appropriate. In support of this claim, the Agency states:

The proposal sets forth the standard that is determinative of the exercise of the management right. Accordingly, management must exercise its right to select according to this standard and no other. Because the standard is one established by the proposal, the proposal fails to preserve management's right. Accordingly, it cannot constitute an appropriate arrangement.

Supplemental Statement of Position at 5.

2. The Union

The Union asserts that the Authority "has a long standing practice of finding proposals which provide for 'fair and equitable' procedures to be used when selecting candidates to be negotiable." Reply Brief at 6.

In response to the Agency's arguments concerning arbitral review, the Union contends that "there are ample decisions issued by the [Authority] to which [the arbitrator] could look for guidance." Id. Additionally, the Union contends that "no management right is touched, let alone abridged[,]" because the "plain language" of the provision allows for arbitral review of the selection process and not of the selection criteria. Id. The Union also states that the disputed language has been in effect since 1985 with "a longstanding history of interpretation in accordance with law and regulation[]" and that the Agency has failed to cite a single incident that would indicate any problem with the language. Id. at 7.

Alternatively, the Union argues that even assuming that the provision directly interferes with management's right to select, it is negotiable as an appropriate arrangement. The Union contends that if the procedures used when selecting employees are not applied in as fair a manner as is possible, the harm to the morale and careers of employees is "catastrophic." Id. The Union argues that employees have absolutely no control over the circumstances involving the procedures used to select employees for positions.

The Union asserts that the effect of the negotiated language on management's right to select is "minimal at best." Id. at 8. The Union contends that the Agency is free to select any applicant it desires as long as the procedure used to make the determination is uniformly applied to all candidates. The Union maintains that if the same procedures are applied to all candidates who are presented to the selecting official, the amount of time and money expended as a result of challenges to selections by both parties will decrease. The Union asserts that the negative impact of the requirement for uniform application of selection procedures is minimal compared to the substantial benefit to employees. The Union contends that the provision would enhance effective and efficient Government operations by preventing any perceptions of favoritism in the selection process.

In its reply to the Agency's supplemental statement of position, the Union contends that nothing in case law or the Statute requires that an arrangement operate subsequent to management's actions and that the Agency's argument in this regard is unsupportable. The Union asserts that the Agency's argument that the arrangement forces management to use one standard for selection of employees "defies the plain meaning of the language[.]" Reply to Agency's Supplemental Statement of Position at 4. According to the Union, the provision establishes a standard for how selections will be processed and not a standard for determining whether someone is a good candidate.

B. Analysis and Conclusions

The Union states that this provision requires only that the procedures used by the selecting official be applied uniformly, fairly, and equitably and does not establish a standard or criteria that would govern the selection itself. This statement of intent is consistent with the language of the provision and we adopt it for purposes of this decision. Thus, we interpret this provision as applying only to the procedures that a selecting official will use in making a selection from candidates referred to him or her and does not place any substantive restrictions on the Agency's decision in determining which employee to select. For example, the provision does not inhibit the Agency's ability to solicit or consider applications from any appropriate source or limit the universe of candidates that section 7106(a)(2)(C) of the Statute guarantees management the right to consider. See, for example, American Federation of Government Employees, Local 738 and U.S. Department of the Army, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, 39 FLRA 872, 875 (1991). The provision does not prescribe criteria by which the decision on a selection must be made. See Department of Defense, Army Air Force Exchange Service v. FLRA, 659 F.2d 1140, 1152 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982). Under this provision, the Agency retains the discretion to determine the qualifications for a position and to determine which candidate is best qualified. See, for example, U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 36 FLRA 28, 31-32 (1990). Also, the Agency retains the discretion to make the actual selection from a merit promotion certificate or from any other appropriate source. See Department of Agriculture, Food and Nutrition Service and National Treasury Employees Union, 35 FLRA 1154, 1158-59 (1990).

This provision does not place any limitations on the Agency's discretion to make substantive decisions concerning selections and does not directly interfere with management's right to select employees under section 7106(a)(2)(C) of the Statute. Rather, it concerns procedures that management officials of the Agency will observe in exercising their right to select employees and is negotiable under section 7106(b)(2) of the Statute. See, for example, National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279, 1287-88 (1992); U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Payment Center Locals, Local 1760, 36 FLRA 466, 473 (1990); National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 367-68 (1990).

In reaching this conclusion, we note that this provision is distinguishable from proposals that imposed criteria similar to "fair" and "objective" on Agency action and that were found to directly interfere with management's rights. For example, National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 682-87 (1991) (Department of Memorial Affairs); Naval Underwater Systems Center, Newport, 38 FLRA at 464-66. In those proposals, the criteria impinged on substantive management decisions involved in the exercise of a management right and were not limited in application to procedural matters.

Additionally, we reject the Agency's contention that this provision is nonnegotiable because it would permit arbitral review of a management right. The Agency's assertion that an arbitrator's judgment may be substituted for its own is not a basis for finding that this provision is nonnegotiable. See, for example, National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA 346, 350 (1991). The question of whether any subsequent arbitral award based on this provision constitutes an impermissible interference with management's rights must be directed to the merits of such an award. See, for example, id. Moreover, there is no basis in the record of this case on which to conclude that Provision 2, either by language or intent, would authorize an arbitrator to intrude impermissibly on management's rights. See, National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Western Region, 42 FLRA 964, 991-92 (1991).

In view of the fact that we have concluded that Provision 2 does not directly interfere with management's right to select employees under section 7106(a)(2)(C) of the Statute, it is unnecessary to address the parties' arguments concerning whether the provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3). Based on the foregoing, we conclude that Provision 2 constitutes only a procedure that the Agency will observe in exercising its right to select employees and is negotiable under section 7106(b)(2) of the Statute.

IV. Provision 3

Article 14, section 2, paragraph B

The Service has determined that when an employee is detailed to a higher graded position for more than 30 consecutive days, but is not eligible for a temporary promotion, the employee's performance at an acceptable level of competence in the higher graded position will operate as a [sic] prima facie evidence that the employee is deserving of a Special Achievement Award. The amount of such an award would be determined in accordance with the scale in the Department's incentive awards regulations applicable to cash awards for job performance exceeding job requirements. An employees may receive only one award in a twelve month period. For the purposes of this position, each 12 month period is a discrete entity, i.e., no month which is a portion of an 12 month period may count toward another 12 month period.

A. Positions of the Parties

1. The Agency

The Agency contends that this provision requires mandatory awards when an employee has performed at a particular level and argues that proposals providing for mandatory performance awards are nonnegotiable because they are inconsistent with a Government-wide regulation, 5 C.F.R. § 430.504(d)4/ and (e)5/. In support of this claim the Agency cites Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA 938 (1990). The Agency asserts that under 5 C.F.R. § 430.504(d) and (e) the ability to review and approve, or disapprove, an award must be unrestricted and argues that the concept of a mandatory award is inconsistent with that intent. The Agency contends that the fact that the regulation provides that the failure to pay an award may not be appealed "suggests that the official(s)' determination is absolute and that it is not intended to be subject to outside restrictions, such as collective-bargaining proposals." Statement of Position at 9.

The Agency asserts that because this provision is nonnegotiable based on inconsistency with a Government-wide regulation, section 7106(b)(3) is inapplicable.

2. The Union

In the petition, the Union describes this provision as "standardiz[ing] when employees will be considered for a Special Achievement Award." Petition at 2. According to the Union, a detail to a higher graded position for more than thirty days "will be taken into consideration when making the Special Achievement Award." Id. The Union states that this provision does not mandate entitlement to an award but, rather, establishes a rebuttable presumption "in favor of" granting a Special Achievement Award to an employee who meets the conditions specified in the provision. Reply Brief at 9. According to the Union, "[i]mplicit in the contractual language . . . is the right of management to deny an award to an employee even if the employee in question meets the criteria noted." Id. The Union contends that the regulation on which the Agency relies establishes a procedure for the review of awards by Agency management and does not address the formulation of approval criteria for awards. The Union asserts that the determination of such criteria is within the discretion of the Agency and that the Agency must bargain as to how that discretion is exercised.

The Union argues that the Agency's reliance on 5 C.F.R. § 430.504(d) is misplaced because neither the intent of the parties nor the plain meaning of the provision prevent review and approval of awards by Agency officials. Additionally, the Union asserts that insofar as 5 C.F.R. § 430.504(e) prohibits an "appeal" over the failure to pay an award or the amount of the award, it refers to an "appeal" to the Merit Systems Protection Board and does not foreclose the matter from being "grieved" under the negotiated grievance procedure.

The Union contends that even if this provision is inconsistent with a Government-wide regulation, it is nevertheless negotiable as an appropriate arrangement under section 7106(b)(3). The Union maintains that there is a substantial impact on an employee of being placed in a position of carrying the extra burden of working above the employee's grade level with no assurance that regularly scheduled work will not be stockpiled awaiting the employee's return. The Union asserts that the employees have no control over the decision to assign work to them or whether they will receive an award.

The Union argues that the provision has no negative effect on Government operations and that it would enhance Government operations by improving the morale and motivation of employees. The Union also asserts that establishing a "prima facie expectation of an award" will enhance the Agency's efforts to accomplish its mission by providing employees with some understanding of the criteria used in giving awards. Reply Brief at 12. The Union contends that the benefits to employees outweigh any negative impact on management. The Union describes the impact on the Agency as minimal because the provision requires only that it bargain to the extent of its discretion and leaves the Agency with the ability to deny or disapprove awards.

B. Analysis and Conclusions

Initially, we note that the regulatory provision on which the parties rely in their submissions, 5 C.F.R. § 430.504, governs "performance awards," which, by definition, are based on an employee's rating of record. 5 C.F.R. § 430.502. It is unclear to us whether the awards contemplated by this provision appropriately fall within the category of "performance awards" or whether they fall within the category of "incentive awards," which are governed by 5 C.F.R. Part 451. In any event, both regulations contain a requirement that decisions to grant such awards be subject to review and approval by an official of the agency at a higher level than the official who made the initial decision. 5 C.F.R. § 430.504(d) and 5 C.F.R. § 451.104(j). Because both parties have relied on the regulations that govern "performance awards" in their arguments, we will assume for purposes of this decision that this provision concerns performance awards.

We have previously held that proposals that mandate the granting of awards are inconsistent with 5 C.F.R. Part 430 because they prevent an agency from reviewing and approving such awards as is required by that regulation.6/

The Authority's decision in National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, Arlington, Virginia, 40 FLRA 3 (1991), in which we concluded that a provision mandating the granting of an award was nonnegotiable, was recently reviewed by the U.S. Court of Appeals for the District of Columbia Circuit. In our decision, we had concluded that the provision was inconsistent with 5 C.F.R. Part 430 and was therefore nonnegotiable on two grounds: (1) it eliminated the discretion of the reviewing official to disapprove an award on any basis other than budgetary constraints; and (2) it did not adequately preserve the agency's discretion to disapprove an award even for budgetary reasons. The Court upheld our decision on the second ground but reserved judgment on the first. National Treasury Employees Union v. FLRA, No. 91-1262 (D.C. Cir. March 20, 1992) (mem.). The first ground is at issue in this case. However, because we conclude below that Provision 3 in this case does not mandate the granting of an award, a determination on the viability of the first ground is unnecessary to the disposition of this provision.

The Agency asserts that this provision is inconsistent with 5 C.F.R. § 430.504 because it mandates the granting of awards. The Union denies that the provision mandates the granting of awards and states that under this provision the Agency retains the ability to deny or disapprove an award. The Union's statement as to the intent of this provision is consistent with the language of the provision and we adopt it for purposes of this decision. Thus, contrary to the Agency's assertion, this provision does not create an entitlement to an award, but is limited to establishing a criterion for determining whether an employee is "deserving" of an award. The fact that an individual is considered "deserving" of an award says no more than that he or she is worthy of being so honored. There is nothing about such a designation that mandates the actual granting of an award. For example, nothing in the provision requires that the established criterion be the sole consideration relied on in determining whether to grant an award to the employee or that an award automatically ensue once an employee meets the established criterion. Moreover, consistent with the provision, an employee could be "deserving" of an award that nonetheless could not be given for budgetary reasons.

We recognize that the provision states that meeting the specified conditions operates as "prima facie evidence" that an employee is deserving of an award, and that the Union refers to the award as establishing a "rebuttable presumption in favor of an employee" who meets those conditions. Reply Brief at 9. Although neither the language of the provision nor the Union indicates the measure of proof required to rebut the presumption that an employee deserves an award, we find it significant that 5 C.F.R. § 430.504 places no restrictions on the standards that an agency may use to determine eligibility for an award so long as the Agency retains the ultimate ability to approve or disapprove the granting of the award. As we view Provision 3, the Agency retains the right to deny an award to an employee notwithstanding the fact that he or she meets the conditions specified in the provision and the reviewing official retains the ability to disapprove an award. Therefore, as the provision does not establish conditions that are incompatible with 5 C.F.R. § 430.504 and does not mandate that an award be granted, we reject the Agency's contention that Provision 3 is inconsistent with that regulation. See American Federation of Government Employees, Local 1409 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 747 (1990).

Because the Agency claims only that this provision is inconsistent with a Government-wide regulation and does not argue that the provision interferes with any management right under section 7106 of the Statute, it is unnecessary to address the Union's contention that this provision constitutes an appropriate arrangement under section 7106(b)(3). Section 7106(b)(3) applies only to the exercise of the management rights set forth in section 7106 and does not apply to proposals that are claimed to be inconsistent with a Government-wide regulation. See, for example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 211 (1990) (Proposal 1).

Based on the foregoing, we conclude that Provision 3 is negotiable.

V. Provision 4

Article 23, section 1, paragraphs B and C

B. At the end of two, six, and ten months of the first year with the Service, probationary employees will be given written follow-ups. These will also include at least:

1. A statement that the employee's performance and conduct have been satisfactory and the employee should be continued in employment; or a statement that the employees should be closely observed and a further report will be made before the close of the probationary period; or a recommendation that the employee should be terminated at this time;

2. If appropriate, a discussion with the employee on ways and means to assist in raising the employee's performance to a satisfactory level; and

3. A statement to the employee at this time that he/she has the opportunity to attach comments.

C. The employee's signature on the written placement follow-up indicates only that he/she has received a copy and that it has been discussed with him/her.

A. Positions of the Parties

1. The Agency

The Agency contends that this provision is nonnegotiable because it is inconsistent with law and regulation governing the probationary period. In support of this contention, the Agency asserts that the Authority has consistently held that proposals that establish procedural protections for probationary employees beyond those provided by law and regulation are nonnegotiable. The Agency notes that the Authority distinguished between proposals that pertain to the termination of probationary employees and those that deal with the probationary period itself in National Treasury Employees Union and Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 40 FLRA 849, 860-64 (1991) (Office of Chief Counsel, IRS), affirmed in part and vacated and remanded in part as to other matters sub nom. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, Nos. 91-1139, 91-1316 (D.C. Cir. Apr. 14, 1992).

The Agency contends that Provision 4 is distinguishable from the provision that the Authority concluded was negotiable in Office of Chief Counsel, IRS. The Agency asserts that Provision 4, unlike the provision in Office of Chief Counsel, IRS, imposes a different set of procedures relating to the probationary period than those provided for in Office of Personnel Management (OPM) regulations. The Agency also argues that this provision is inherently inconsistent with OPM regulations because it requires the Agency to take certain actions where the OPM regulations only advise agencies to take such actions. The Agency contends that Provision 4 is distinguishable from the provision in Office of Chief Counsel, IRS for the additional reason that Provision 4 applies to the termination of a probationary employee.

Alternatively, the Agency states that it disagrees with the distinction made in Office of Chief Counsel, IRS, and requests that the Authority reconsider that decision. The Agency argues that the distinction made in Office of Chief Counsel, IRS is inconsistent with the court's decision in U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (INS v. FLRA), and the Authority's case law that embraces that decision. The Agency asserts that any attempt to distinguish between proposals based on whether they relate to the probationary period or the termination of probationary employees is inconsistent with Congressional intent as elucidated in INS v. FLRA. The Agency contends that any provision governing probationary employees that grants procedural protections that are greater than those granted by the President, the Congress, and OPM are inconsistent with law and regulation and are nonnegotiable.

2. The Union

The Union claims that Office of Chief Counsel, IRS supports a conclusion that proposals concerning the termination of probationary employees are distinguishable from those that deal with employee progress during the probationary period, and argues that the latter proposals are negotiable. The Union describes this provision as merely amounting to "periodic progress reports which let the employee know how he/she is doing on the job." Reply Brief at 14. The Union contends that this provision "does not afford a probationary employee any rights regarding his/her termination." Id. Citing Federal Personnel Manual (FPM) chapter 315, subchapter 8, the Union argues that this provision "gives substance" to, and is consistent with, those portions of the OPM regulations, which it contends provide that probationary employees be told before the end of the tenth month of the probationary period how they are performing. Id.

B. Analysis and Conclusions

We find that, unlike the provision in Office of Chief Counsel, IRS, Provision 4 is not limited to advising probationary employees of their progress during the probationary period. Rather, Provision 4 extends to the termination of probationary employees. In particular, the provision requires that probationary employees be given "written follow-ups" at specified intervals concerning their conduct and performance that include, if appropriate, a recommendation that the employee should be terminated. The provision also calls for discussions with the employee on ways and means to assist in raising his or her performance to a satisfactory level, if appropriate, and affords the employee the opportunity to attach comments to the written follow-up.

We find that this provision allows probationary employees procedural protections relating to their terminations in that it permits them to comment on a recommendation that they be terminated and requires that they be afforded an opportunity to discuss "ways and means to assist them in raising [their] performance to a satisfactory level" in the context of such a recommendation.

In INS v. FLRA, the court found that in the Civil Service Reform Act of 1978 Congress expressly preserved an agency's discretion to remove summarily a probationary employee, retaining for the probationary employee only minimal due process. 709 F.2d at 729. Consistent with the court's decision, the Authority has held that insofar as the termination of probationary employees is concerned, Congress did not intend that procedural protections for probationary employees be established through collective bargaining under the Statute and that OPM, not the Authority, is to provide whatever procedural protections are necessary for probationary employees. See, for example, Office of Chief Counsel, IRS, 40 FLRA at 861-62; National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois, 39 FLRA 848 (1991) (Provision 1) (FDIC, Chicago Region).

The procedural protections that this provision affords to probationary employees exceed those provided by OPM. In this regard, there is nothing in the OPM regulations governing the termination of probationary employees that provides either for comment by the probationary employee on a recommendation that the employee be terminated or for a discussion to assist in raising a probationary employee's performance to a satisfactory level in the face of a recommendation that he or she be terminated. See 5 C.F.R. Part 315, subpart H; FPM chapter 315, subchapter 8.

Because Provision 4 would establish procedural protections beyond those provided by OPM, it is inconsistent with Federal law and Government-wide regulation. Consequently, it is nonnegotiable. See, for example, FDIC, Chicago Region; American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105 (1988) (Provision 7).

VI. Provision 5

Article 33, section 2; section 3, paragraphs B and C; section 4; section 5; section 6; section 7

Section 2

Requests of annual leave of one (1) full workday or more must be in writing on Standard Form 71 (SF-71), and must be submitted at least two (2) workdays in advance. Such leave requests will be granted unless the employee's absence would create a severe workload problem. Requests for annual leave in situations that do not provide the Service with two (2) workdays notice will be considered by the Service in light of severe workload problems also. However, it is understood by the parties that such leave requests have a greater probability of denial than those leave requests with two (2) workdays advance notice.

Section 3

B. An employee who makes a written request pursuant to Section 2 of this Article will be granted annual leave for a workday which occurs on a religious holiday of his/hers, unless the employee's absence would create a severe workload problem.

C. An employee will be granted accrued annual leave or leave without pay for up to five (5) workdays in case of death in his/her immediate family, unless the employee's absence would create a severe workload problem. Written advance notice shall not be required in such circumstances.

Section 4

A. Extended annual leave of up to two (2) consecutive weeks shall be granted to each eligible employee with sufficient accrued annual leave, provided that granting such leave does not cause a severe workload problem.

Section 5

A. When annual leave has been approved the Service will not change or alter the approved scheduled leave unless the employee's absence would create a severe workload problem. The Service will seek to give the employee as much advance notice as practicable.

Section 6

Use or lose annual leave will be granted unless the employee's absence would create a severe workload problem.

Section 7

A. The Service agrees to authorize the use of accrued annual leave or leave without pay to the Union President or Vice-President, or designees, for attendance at any Union sponsored conventions or meetings, unless the employee's absence would create a severe workload problem. Requests on an SF-71 will be supplied at least fifteen (15) workdays in advance.

[Only the underscored portions are in dispute.]

A. Positions of the Parties

1. The Agency

The Agency argues that this provision is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute because it would require the Agency to grant an employee's leave request without regard for the Agency's need for the employee's services during the period covered by the request. The Agency states that the reasons that it expressed in conjunction with Provision 1 apply to this provision as well.

In its supplemental statement of position, the Agency asserts that this provision fails to meet the threshold portion of the test for determining whether proposals constitute appropriate arrangements. In this regard, the Agency describes as purely speculative the Union's argument that absent the standard imposed by the provision, the Agency will deny leave requests in all circumstances. Additionally, the Agency contends that while the denial of leave may adversely affect employees, the adverse effects of such denials will vary depending on the circumstances.

The Agency argues that even assuming that this provision constitutes an arrangement, it is inappropriate. In support of this claim, the Agency cites 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), in which the Authority concluded that Proposal 1, which required that the agency grant annual leave in specified circumstances unless it would result in prohibiting the agency from accomplishing a critical job, excessively interfered with management's right to assign work. The Agency argues that Provision 5, like Proposal 1 in Portsmouth Naval Shipyard, establishes a "strict, single standard that determines whether management can exercise its right to assign work when faced with a request for leave under the circumstances of [this provision]." Supplemental Statement of Position at 7. The Agency asserts further that the provision would require application of "the strict standard" in all cases without regard to the varying degree to which employees may be adversely affected. Id. at 8. The Agency contends that this provision excessively interferes with management's right to assign work.

2. The Union

The Union urges that the Authority reconsider its decisions, such as American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172 (1987), in which it has concluded that proposals requiring that leave requests be granted directly interfere with management's right to assign work. The Union acknowledges that Provision 5 "impacts on" management's right to assign work, but argues that another law grants employees leave. Reply Brief at 17. The Union contends that management's right to assign work must be balanced with the employees' statutory and regulatory rights to leave and that such an approach is consistent with the phrase "in accordance with applicable law," which appears in section 7106(a)(2) of the Statute.

The Union asserts that assuming the Authority does not find that employees have "a compelling independent statutory right" to take leave, the provision is negotiable as an appropriate arrangement under section 7106(b)(3). Id. at 18. In support of this claim, the Union argues that the impact on employees of allowing the Agency to call an employee back from leave, cancel leave at the last minute, forbid a 2-week vacation, or forbid the observance of a religious holiday is significant. The Union contends that employees have no control over the circumstances leading to management's denial of their leave while the Agency does have control over work assignments and internal deadlines.

The Union asserts that the impact of this provision on the Agency is minimal in that the provision allows the Agency to delay or disapprove an employee's leave if other alternatives are not available. The Union contends that the balance of the "strong employee right to leave versus the relatively small possible inconvenience to management" should be struck in favor of the employees. Id. at 19. The Union argues that the Agency has not shown how this provision would interfere with the efficient and effective operation of Government and that, in fact, this provision prevents such a result by placing some limitations on when employees can take leave.

In its response to the Agency's supplemental statement of position, the Union points out that the Agency does not dispute that denials of leave may adversely affect employees and contends that the "negative outcomes" that the Union previously suggested in its reply brief are reasonably foreseeable and are sufficient to satisfy the threshold portion of the appropriate arrangements test. Reply to Agency's Supplemental Statement of Position at 5. The Union contends that the circumstances involved in this case are distinguishable from those involved in Portsmouth Naval Shipyard because, unlike the Union here, the union in that case "did not assert any real negative impact" that would allow the Authority to "weigh the [e]ffects of an unfettered management right on the employee." Id. The Union also urges that the Authority reconsider its decision in Portsmouth Naval Shipyard.

B. Analysis and Conclusions

This provision is similar to Provisions 15, 17, and 18 in BATF, 45 FLRA No. 30. Like those provisions, Provision 5 requires that employees be permitted to use annual leave or leave without pay in the specified circumstances unless a severe workload problem would result. As we stated in BATF, proposals that place restrictions on an agency's right to determine when annual leave or leave without pay may be used directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. 45 FLRA No. 30, slip op. at 40. For the reasons expressed in conjunction with Provisions 15, 17, and 18, we conclude that Provision 5 directly interferes with management's right to assign work.7/

Next, we turn to the Union's claim that this provision constitutes an appropriate arrangement and is negotiable under section 7106(b)(3) of the Statute. Under the analysis set forth in KANG, we first must determine whether this provision is intended as an arrangement for employees adversely affected by the exercise of management's rights. For purposes of this analysis we will address sections 2 through 6 separately from section 7.

1. Sections 2 Through 6

These sections concern the circumstances under which employees will be permitted to use annual leave or leave without pay. As we discussed in BATF, the statutory scheme governing annual leave provides employees with a right to take accrued leave, subject to management's right to schedule that leave. 45 FLRA No. 30, slip. op. at 40. When an agency exercises its right to assign work by denying or canceling leave, there will be reasonably foreseeable adverse effects on employees who seek to exercise their rights to annual leave. Our statement in BATF that "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" is equally applicable to this case. 45 FLRA No. 30, slip op. at 41.

We reject the Agency's claim that these sections address purely speculative concerns. While it may not be inevitable that the Agency will deny all leave requests that fall within the scope of these sections, we find that it is reasonably foreseeable that management will exercise its right to assign work by denying some requests. See United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, Nos. 91-1139, 91-1316 (D.C. Cir. Apr. 14, 1992) ("[W]e see nothing in the language of [section 7106](b)(3) that requires union proposals to target in advance the very individual employees who will be adversely affected. We think it sufficient that the Authority reasonably concluded that evaluations will surely have adverse effects on some employees."). It is also reasonably foreseeable that such denials will have a disruptive effect on employee's personal lives and, consequently, to one degree or another will have an adverse effect on those employees. See National Association of Government Employees, Local R12-105 and U.S. Department of Defense, National Guard Bureau, The Adjutant General, California National Guard, 37 FLRA 462, 466 (1990); West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1013 (1990). We find that sections 2 through 6 seek to ameliorate the adverse effects that would flow from management's exercise of its right to assign work by denying requests for leave and, therefore, that they constitute arrangements within the meaning of section 7106(b)(3). See Department of Memorial Affairs, 40 FLRA at 685-86 (proposals that are intended to eliminate the possibility of an adverse effect may constitute arrangements for adversely affected employees within the meaning of section 7106(b)(3) of the Statute).

Now we address whether the arrangement is appropriate by applying the analytical framework set forth in KANG. The condition of employment affected is the employees' ability to schedule and use their annual leave or to use leave without pay in the event of a death in the immediate family. The nature and extent of the impact experienced by individual employees as a consequence of denials of requests for leave will vary based on the circumstances involved. Depending on 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 leave--is not within the employee's control.

Turning to the question of the nature and extent of the effect of these sections on management's ability to deliberate and act, we find that these sections would limit the Agency's ability to deny leave requests to those circumstances where a severe workload problem would result. Thus, these sections 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.

These sections offer significant benefits to employees by permitting them a greater degree of control over the scheduling and use of leave. However, these sections also have a significant negative impact on the Agency's right to assign work to employees by requiring the Agency to grant leave under the conditions specified in the sections unless a severe workload problem would result. Absent a severe workload problem, the Agency would be required to accommodate an employee's absence by either foregoing the accomplishment of work, rescheduling 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 sections.

On balance, we find that the burden that sections 2 through 6 place on management's right to assign work outweighs the benefits afforded employees. We conclude that sections 2 through 6 excessively interfere with management's right to assign work and do not constitute appropriate arrangements that are negotiable under section 7106(b)(3) of the Statute.

In reaching this conclusion, we conclude that although these sections would impose a burden on the Agency's ability to assign work similar to that imposed by Provision 1, the nature and extent of the benefits are significantly different. Section 2 through 6 of this provision would benefit employees on an individual basis. Provision 1 offers benefits of a broader scope. By promoting collective bargaining, Provision 1 affords benefits to employees on both an individual and collective basis and also b