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46 FLRA No. 67

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

CUSTOMS SERVICE

WASHINGTON, D.C.

(Agency)

0-NG-1935

DECISION AND ORDER ON NEGOTIABILITY ISSUES

November 27, 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), and concerns the negotiability of 44 provisions⁽¹⁾ of a collective bargaining agreement that were disapproved by the Agency head under section 7114(c) of the Statute and three proposals that were declared nonnegotiable during bargaining.

For the reasons stated below, we make the following findings. Provision 1, which provides that the Union may establish an arbitration fund to which unit employees who are not Union members would contribute, is inconsistent with section 7114(a)(1) of the Statute and is nonnegotiable under section 7117(a)(1). Provision 2, which bars the use of supervisory notes or diaries to support disciplinary and adverse actions and performance related actions unless affected employees are shown and provided copies of the documents, is a negotiable appropriate arrangement under section 7106(b)(3). Provision 3, which requires that management select unit employees for training on a fair and equitable basis, is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B). The disputed portion of Provision 4, which permits the use of performance ratings assigned more than 4 years prior to the issuance of a reduction-in-force notice, is inconsistent with 5 C.F.R. §§ 351.504(b)(1) and 351.504(c) and, therefore, is nonnegotiable under section 7117(a)(1).

Provision 5, which concerns when the Agency will approve annual leave requests, is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B). Provision 6, which requires the Agency to consider certain matters in acting on requests for advanced annual leave, is negotiable. Provisions 7 and 8, which provide that home leave will be granted and used within 90 days after an employee becomes eligible, directly interfere with management's right to assign work under section 7106(a)(2)(B) and are nonnegotiable. The disputed sentence in Provision 9, which requires management to exercise its discretion in a fair and objective manner in deciding when to require evidence supporting an employee's use of sick leave, is nonnegotiable because it directly interferes with management's right to discipline under section 7106(a)(2)(A).

Provision 10, which requires that the Agency grant administrative leave to donate blood unless work demands leave no other reasonable alternatives to denial of such leave, directly interferes with management's right to assign work under section 7106(a)(2)(B) and is nonnegotiable. Provision 11, which requires that the Agency grant employees meeting certain conditions administrative leave to take certain licensing examinations, is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B).

Provision 12, which requires that the Agency grant leave without pay (LWOP) in three situations, directly interferes with management's right to assign work under section 7106(a)(2)(B) and is nonnegotiable. Provision 13, which provides that any other requests for LWOP will be approved in a fair and objective manner under certain conditions, also directly interferes with management's right to assign work under section 7106(a)(2)(B) and is nonnegotiable. Provision 14, which requires that an employee returning to duty after LWOP be assigned to the position held before the leave began or, in certain circumstances, to a like position, directly interferes with the Agency's right to assign employees under section 7106(a)(2)(A) and is nonnegotiable. Provisions 15 and 16, which authorize maternity or paternity leave in certain circumstances, are nonnegotiable because they directly interfere with management's right to assign work under section 7106(a)(2)(B).

Provision 17, which concerns the earning and use of compensatory overtime for religious observances, is negotiable. Section 2A of Provision 18, which requires immediate supervisors to make acceptable level of competence determinations, directly interferes with management's right to assign work under section 7106(a)(2)(B) and is nonnegotiable. The last sentence of section 2C of Provision 18, which provides that an employee whose performance later improves to the fully successful level will receive his or her within grade increase retroactive to the date it was due, is inconsistent with 5 C.F.R. § 531.412(b) and, therefore, is nonnegotiable.

Provisions 19, 36, 37, 39, and 40, which require the Agency to furnish the Union with unsanitized copies of documents concerning certain personnel actions, are inconsistent with the Privacy Act and nonnegotiable under section 7117(a)(1) of the Statute. Provision 20 and paragraph (1) of Provision 21, which require that critical elements and performance standards be consistent with duties and responsibilities contained in employees' position descriptions, are negotiable procedures under section 7106(b)(2). Paragraphs (2) through (5), (7), and (8) of Provision 21, which describe the contents of performance standards, directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) and are nonnegotiable. Provision 22, which provides that supervisors must prepare fair and objective performance appraisals, is negotiable.

Provision 23, which requires Internal Affairs agents to provide certain employees with information and notices, is negotiable. The first sentence of Provision 24, which requires management to grant requested leave if competent medical authority determines that the employee is unable to return to work, is inconsistent with an applicable Government-wide regulation and nonnegotiable.

Provision 25, which obligates the Agency to exercise its management rights in a fair and objective manner; Provision 26, which requires management to schedule employees' tours of duty in a fair and objective manner; and Provision 27, which requires management to assign and rotate overtime fairly and objectively, directly interfere with management's right to assign work under section 7106(a)(2)(B) and are nonnegotiable. Provision 28, which authorizes qualified employees to exchange certain overtime assignments, is a negotiable procedure under section 7106(b)(2).

Provision 29, which provides that employees can select their lodging while on official travel except under certain circumstances, is negotiable. Provision 30, which requires the Agency to provide employees with "legal support" to the extent authorized by law, is negotiable. Section (c) of Provision 31 which requires that Firearms and Range Officers be designated in a fair and objective manner directly interferes with management's right to assign work and is nonnegotiable.

Provision 32, which requires supervisors to undertake certain actions concerning probationary employees, is negotiable. The last sentence of Section 3A in Provision 33, which requires management to allow probationary employees an opportunity to respond to supervisory recommendations concerning their retention or termination, is inconsistent with FPM chapter 315, subchapter 8-5.c and is, therefore, nonnegotiable. Provision 34, which provides certain procedural protections for probationary employees, is inconsistent with FPM chapter 315, subchapter 8-5.c and is, therefore, nonnegotiable.

Provisions 35 and 38, which require progressive discipline, are nonnegotiable because they directly interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute. Section 10B of Provision 41, which concerns details and temporary promotions of Union officers and stewards to supervisory positions, directly interferes with management's right to assign work and is nonnegotiable. The petition for review of Sections 10A and 10C of Provision 41 is dismissed because the record does not provide sufficient information on which to base negotiability determinations. Provisions 42 and 43, which require that certain employees receive monetary performance awards, are inconsistent with 5 C.F.R. § 430.504(d) and, therefore, are nonnegotiable. Provision 44, requiring negotiation of a formula for distribution of awards is negotiable.

The petition for review also addresses three proposals that were declared nonnegotiable by the Agency during contract negotiations. Proposals 2 and 3, which require the Agency to pay for alterations and maintenance of employees' uniforms, do not concern conditions of employment within the meaning of section 7103(a)(14)(C) and are nonnegotiable. Proposal 4, which provides for an Evaluation Board to consider applicants for vacancies and requires that the Board perform certain functions, is a negotiable procedure under section 7106(b)(2), except for the second sentence of section 8A, which excludes the selecting official from serving on the Board. The latter portion directly interferes with management's right to assign work under section 7106(a)(2)(B) and is, therefore, nonnegotiable.

II. Preliminary Matter

We have not considered the Union's reply brief because it was not timely. We reject the Union's assertion that its reply brief is timely because, under section 2429.22 of the Authority's Rules and Regulations, it was entitled to 5 additional days from the date of receipt of the Agency's statement of position, which was served by U.S. Mail, to file its brief with the Authority.

Under section 7117(c)(4) of the Statute and section 2424.7(a) of our Regulations, a reply brief must be filed with the Authority within 15 days after a union's receipt of an agency statement of position.⁽²⁾ Section 2429.22 of the Authority's Regulations adds 5 days to time limits only when the time limits are measured from "service of a notice or other paper upon such party, and the notice or paper is served on such party by mail . . . ." As the time limit applicable to reply briefs is measured from a union's receipt of a statement of position, section 2429.22 is inapplicable, and the Union is not entitled to 5 additional days to file its reply brief. See American Federation of Government Employees, Local 1692 and U.S. Department of the Air Force, Mather Air Force Base, California, 40 FLRA 868, 869 n.1 (1991) (Mather) (as time limit for filing agency statement of position is measured from receipt of petition for review, additional 5 days was inapplicable).

The Union states that it received the Agency's statement of position on June 10, 1991. Union's Response to Order to Show Cause at 1. Therefore, to be timely, the Union's reply brief had to be filed with the Authority by the close of business on June 25, 1991. However, the Union filed its reply brief with the Authority by personal delivery on July 1, 1991. Consequently, the Union's reply brief was untimely. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 890 (D.C. Cir. 1982)(NFFE v. FLRA), affirming National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981) ("the statutory time limits for filing union appeals, agency statements and union responses must be strictly observed").

We deny the Union's request that, if we found that the reply brief was untimely, we waive the time limit under section 2429.23(b) of the Authority's Rules and Regulations. That section provides, with exceptions not applicable here, that expired time limits may be waived "in extraordinary circumstances." The Union argues, in this regard, that it should not be penalized "for good faith reliance on a reasonable interpretation of an ambiguous regulation." Union's Response to Order to Show Cause at 2.

We reject the Union's argument. Under applicable law and regulation, the Union had 15 days from the date of receipt of the statement of position in which to file its reply brief or to request an extension of time. The Union did neither. Section 2429.22 of our Regulations is not ambiguous and our interpretation of it is not new. See Mather. In these circumstances, we find no "extraordinary circumstances" justifying a waiver of the expired time limit under section 2429.23 of our Regulations, and we will not waive the prescribed time limit.⁽³⁾ See U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1312-13 (1990).

As the Union's reply brief was untimely, we will not consider it in this decision. In addition, during the pendency of this issue, we granted the Agency's request to file a supplemental brief addressing matters which, it claimed, were raised for the first time in the Union's reply brief. We also granted the Union's request to respond to the Agency's supplemental brief. As we have determined that we will not consider the Union's reply brief, we find it unnecessary to consider either the Agency's or the Union's supplemental submission.

III. Provision 1

Article 3, Section 4B- The Employer recognizes that the Union may establish an arbitration fund to finance arbitrations which may require fees from non-members. The Employer takes no position as to whether the establishment of such fund does or would discriminate against employees based on their membership on [sic] non-membership in the Union.

A. Positions of the Parties

The Agency contends that Provision 1 is nonnegotiable because it is inconsistent with section 7114(a)(1) of the Statute. The Agency argues that the provision assesses arbitration costs "exclusively according to non-membership status" and, therefore, discriminates against non-members. Statement of Position at 2. The Agency also claims that Provision 1 has the same effect as a provision found nonnegotiable in National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 615, 621-25 (1990) (IRS).

The Union states that Provision 1 recognizes that the Union "may establish a fund to require non-members to contribute toward the cost of arbitrations." Petition for Review at 2. The Union further states that the provision "explicitly recognizes that the Agency takes no position concerning the question of whether such a fund discriminates against non-members." Id.

B. Analysis and Conclusions

Section 7114(a)(1) of the Statute provides, in pertinent part, that "[a]n exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." In IRS, the relevant disputed provision stated that the union had the right to require non-members to pay the union for certain costs incurred in arbitrating grievances on their behalf. We concluded that the provision discriminated against non-members on the basis of their membership status. Consequently, we found that the provision was nonnegotiable.

Like the provision in IRS, the first sentence of Provision 1 provides that the Union may require fees from non-members to finance arbitrations. Such fees would be based exclusively on the membership status of unit employees. A union's obligations under section 7114(a)(1) of the Statute require, with respect to matters falling within the scope of that section, that a union's activities be undertaken without regard to membership status. IRS, 38 FLRA at 624. By requiring non-member bargaining unit employees to pay arbitration costs, the first sentence of Provision 1 permits the Union to discriminate against non-members on the basis of their membership status and, therefore, is inconsistent with section 7114(a)(1) of the Statute and is nonnegotiable.

The second sentence of Provision 1 is inextricably intertwined with the first. Consequently, we conclude that the second sentence, also is nonnegotiable. Accordingly, we conclude that Provision 1 is inconsistent with the Union's duty of representation under section 7114(a)(1) and, therefore, that it is nonnegotiable under section 7117(a)(1). See also American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, McClellan Air Force Base, California, 44 FLRA 98 (1992) (proposal requiring certain employees to pay a fee to the union to cover expenses directly associated with the union's contractual representational obligations held to be inconsistent with section 7102).

IV. Provision 2

Article 8, Section 5B- Such records, notes or diaries shall not be used as the basis to support any disciplinary or adverse action against an employee unless the employee has been shown and provided a copy of such record, note or diary within a reasonable time after the date of the incident so recorded.

Article 8, Section 5C- Such records, notes or diaries shall not be used as a basis to support:

(1) a performance evaluation of marginal or unacceptable[;]

(2) the denial of a career ladder promotion;

or

(3) the denial of a within-grade increase;

unless the employee has been shown and provided a copy of such documentation within a reasonable period of time, not to exceed thirty (30) calendar days, after it has been determined that the information will be used for such purpose, and before it is used.

A. Positions of the Parties

The Agency asserts that Provision 2 directly interferes with management's rights to direct employees, assign work, and take disciplinary action under section 7106(a)(2)(A) and (B) of the Statute and is not merely procedural. Further, the Agency argues that the provision excessively interferes with management's rights by precluding the Agency from taking disciplinary or adverse action if "recordations of poor performance or disciplinary actions" are not given to an employee. Statement of Position at 5. In this regard, the Agency disagrees with the Authority's finding that a similar provision was a negotiable appropriate arrangement. See National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 57-59 (1991) (Chief Counsel, IRS, I), enforced and remanded as to other matters sub nom. U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992) (IRS v. FLRA). The Agency requests the Authority to reconsider its determination in Chief Counsel, IRS, I.

The Union states that section 5B, of Provision 2 "requires supervisors to make an employee aware of supervisory records, notes or diaries" if such documentation is "to be used to support a disciplinary or adverse action against the employee." Petition for Review at 3. The Union states that section 5C, of the provision "sets forth rules" governing the use of supervisory documentation in evaluating performance. Id.

B. Analysis and Conclusions

Provision 2 precludes the use of supervisory records, notes, or diaries to support certain personnel actions, unless the documentation has been shared with the employee within a reasonable period of time. Section 5C defines a reasonable period of time as not to exceed 30 calendar days. Section 5B, unlike section 5C, does not limit a reasonable period to a number of days. However, the effect of both sections is the same: the Agency would be prevented from using certain documentation to support disciplinary actions or employees' evaluations.

We found that a substantively similar provision in Chief Counsel, IRS, I, directly interfered with management's rights to direct employees, assign work, and impose discipline. The provision in Chief Counsel, IRS, I prohibited the agency from using certain information to adversely affect an employee's performance rating if the information was not furnished to the affected employee within a certain period of time. As Provision 2 prevents the Agency from using certain documentation unless it is shared with the employee on a timely basis, we conclude, for reasons stated more fully in Chief Counsel, IRS, I, that Provision 2 directly interferes with the Agency's rights to direct employees, assign work, and take disciplinary action. As the provision directly interferes with a management right, it does not constitute a negotiable procedure under section 7106(b)(2). See National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1126-27 (1991) (Army Information Systems Command).

In Chief Counsel, IRS, I, the union asserted, and we found that the provision constituted an appropriate arrangement under section 7106(b)(3) of the Statute because the benefits to employees outweighed the limitations imposed on the agency's exercise of its rights. That finding was affirmed by the U.S. Court of Appeals for the District of Columbia Circuit in IRS v. FLRA. We acknowledged that the agency's failure to comply with the provision would bar management's subsequent use of a document in appraising employee performance and, consequently, restrict the agency's ability to support a performance-based disciplinary action. However, we noted that the provision gave employees the opportunity to respond to adverse evaluations.

The Union does not contend that Provision 2 is an appropriate arrangement under section 7106(b)(3) of the Statute. However, as the provision is substantively similar to the disputed provision in Chief Counsel, IRS, I, we will consider the issue in order to avoid the anomaly of conflicting results in similar cases. See National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater System Center, Newport, Rhode Island, 42 FLRA 730, 769 (1991).

We find that Provision 2 will benefit employees by giving them the opportunity to review certain documentation and improve their performance or change their conduct before they receive evaluations or disciplinary or adverse actions based on that documentation. Although the provision burdens management by prohibiting the use of documentation that is not shared with employees within a reasonable period of time, we find, for the reasons stated more fully in Chief Counsel, IRS, I, that the benefit to employees outweighs the burden on the Agency. We note that although Provision 2, unlike the provision in Chief Counsel, IRS, I, also requires management to provide employees with documentation concerning their conduct, this addition does not require that we change our conclusion. Clearly, if employees are informed about matters which may lead to disciplinary or adverse actions, they benefit by having the opportunity to change their conduct and avoid such actions.

Consequently, we conclude that Provision 2 does not excessively interfere with management's rights to direct employees, assign work, and take disciplinary action. In reaching this conclusion, we reject the Agency's argument that Provision 2 would prevent management from disciplining an employee for poor performance. Rather, Provision 2 requires only that employees be provided with documentation that the Agency might use in taking disciplinary actions; it does not prevent the Agency from taking such actions. Accordingly, Provision 2 is negotiable under section 7106(b)(3). See IRS v. FLRA, 960 F.2d at 1070-73. See also 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).

V. Provision 3

Article 10, Section 9b- Employees will be selected for such training on a fair and equitable basis, i.e., consistent with the needs of the service and free of personal favoritism.

A. Positions of the Parties

The Agency asserts that Provision 3 is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency contends that the provision, by requiring "fair and equitable" training selections, imposes "substantive criteria" on the selection of trainees. Statement of Position at 8. The Agency also contends that the provision would enable arbitrators to substitute their judgment for that of the Agency "in what is plainly the exercise of a management right." Id.

The Union states that Provision 3 "establishes some rudimentary standards to govern the selection of employees for in-service training to enhance job proficiency." Petition for Review at 3.

B. Analysis and Conclusions

We reject, at the outset, the Agency's argument regarding arbitral review. As we have previously noted, an agency's argument that an arbitrator's judgment may be substituted for its own is not a basis for precluding negotiation over a provision. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 39 FLRA 1197, 1200 (1991) (Health Care Financing Administration).

Provision 3 concerns the Agency's selections for training. Although training is not defined in the provision we find, relying on the Union's undisputed assertion, that Provision 3 concerns in-service training.

Provision 3 requires that management make in-service training selections "on a fair and equitable basis, i.e., consistent with the needs of the service and free of personal favoritism." Provisions that establish substantive criteria governing the exercise of a management right directly interfere with that right. See National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 683 (1991) (VAMC, Department of Memorial Affairs). Based on the plain wording of the provision, we conclude that the requirement that in-service training selections be made on a fair and equitable basis constitutes a substantive restriction on management's discretion to make work assignments. See, for example, id., 40 FLRA at 683-84. Accordingly, we find that Provision 3 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Compare American Federation of Government Employees, Department of Education Council of AFGE Locals and Department of Education, 35 FLRA 56, 62-63 (1990) (a proposal which required training assignments to be made in a "fair and impartial manner" held not to interfere with management's rights to direct employees and assign work because the union explained that the proposal was intended only to require the agency to rely on merit factors required by applicable law, rule, or regulation in making training assignments). The Union does not assert that Provision 3 is an appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, as it directly interferes with management's right to assign work, we find that the provision is nonnegotiable.

VI. Provision 4

Article 12, Section 6C- The service computation date for reduction in force purposes shall be adjusted for performance by the Employer for each competing employee. [A]n additional service credit will be given consisting of a mathematical average (rounded in the case of a fraction to the next higher whole number) of the employee's last three annual performance ratings computed on the following basis:

- twenty (20) additional years of service for each performance rating of outstanding or equivalent;

- sixteen (16) additional years of service for each performance rating of excellent or equivalent; or

- twelve (12) additional years of service for each performance rating of fully successful or equivalent.

The Employer will establish a cut-off date of fifteen (15) days prior to the date of the specific RIF notice. After this cut-off date, no new annual performance ratings will be put on record and used for RIF purposes. However, all performance appraisals that are due will be prepared to be considered in the RIF analysis. At a minimum, the employee's most recent appraisal will not be more than one year old unless the rating has been deferred pursuant to Article 16 or FPM Chapter 430.

[Only the underscored portion of Provision 4 is in dispute.]

A. Positions of the Parties

The Agency contends that the requirement in Provision 4 that adjustments for service credit for a reduction-in-force (RIF) be based on the last three annual performance ratings, regardless of when those ratings were given, conflicts with 5 C.F.R. § 351.504(b).

The Union states that Provision 4 "describes the process for calculating service computation dates" to be used in a RIF. Petition for Review at 4.

B.Analysis and Conclusions

In determining retention order for a RIF, service credit for employee performance is governed by 5 C.F.R. § 351.504, a Government-wide regulation. See West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1019 (1990). 5 C.F.R. § 351.504(b)(1) provides that:

An employee's entitlement to additional service credit for performance under this subpart shall be based on the employee's three most recent annual performance ratings of record received during the 4-year period prior to the date of issuance of reduction in force notices[.]

(emphasis added).

The disputed sentence of Provision 4 requires management to use the last three annual performance ratings in calculating an employee's entitlement to additional service credit. Although employees are generally rated annually, one or more of an employee's last three ratings may not have been actually assigned during the 4-year period prior to the date of issuance of a RIF notice. 5 C.F.R. § 351.504(c) provides for such circumstances:

(c) Service credit for employees who do not have three actual annual performance ratings of record received during the 4-year period prior to the date of issuance of reduction in force notices, or the 4-year period prior to the agency-established cutoff date for ratings permitted in paragraph (b)(2) of this section, shall be determined as follows:

(1) An employee who has not received an annual performance rating of record shall receive credit for performance on the basis of three assumed ratings of fully successful (Level 3) or equivalent.

(2) An employee who has received at least one but fewer than three previous annual performance ratings of record shall receive credit for performance on the basis of the actual rating(s) received and of one, or two assumed rating(s) of fully successful (Level 3) or equivalent, whichever is needed to credit the employee with three ratings.

By requiring management to use performance ratings without regard to when they were assigned, the disputed sentence conflicts with 5 C.F.R. § 351.504(b)(1). In addition, as the sentence requires use of actual performance ratings, including those more than 4 years old, it is inconsistent with 5 C.F.R. § 351.504(c) which requires substitution of assumed fully successful ratings for ratings of record more than 4 years old. Accordingly, as the disputed sentence of Provision 4 permits the use of ratings assigned more than 4 years prior to the issuance of a RIF notice, the sentence is nonnegotiable under section 7117(a)(1) of the Statute. Compare Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA 938, 941 (1990) (section of proposal requiring that employee's last three ratings of record be used, in certain circumstances, to determine employee's retention standing in a RIF held to be inconsistent with 5 C.F.R. § 351.504(b) and nonnegotiable). As the Agency advances no additional arguments concerning Provision 4, we conclude that the remainder of the provision is not in dispute and will order the Agency to rescind its disapproval of it.

VII. Provisions 5 and 6

Provision 5

Article 13, Section 2B

Annual leave will be approved in accordance with this Article. However, nothing contained in this Article will restrict the Employer's ability to require the presence of an employee, pursuant to its rights to assign work under 5 USC 7106(a)(2)(B), should the Employer determine that work demands leave no other reasonable alternatives.

Provision 6

Article 13, Section 10- Requests for advanced annual leave may be made by an employee and will be considered in a fair and objective manner in accordance with the terms of this article when:

(a) the employee is eligible to earn annual eave;

(b) the employee has served more than 90 days in his appointment;

(c) the employee makes the request in writing (i.e. memo) and provides a rationale for the request;

(d) the employee does not request more advanced annual leave than would be earned during the remainder of the year; and

(e) the liquidation of the advance may be anticipated by subsequent accruals of leave or recovery of the value of the advanced leave (through the use of retirement funds, withheld salary, etc.), in the event of separation.

If the request is denied, the employee will be given written notification of the denial.

A. Positions of the Parties

The Agency contends that Provision 5 establishes a standard, "no other reasonable alternatives," for denial of annual leave requests. The Agency asserts that, because Provision 6 requires consideration of advanced annual leave requests "in accordance with the terms of this article," it also requires that advanced annual leave be denied only when there are "no other reasonable alternatives." In the Agency's view, the provisions' standard for denial of leave restricts management's discretion to deny annual leave to a greater extent than the standard in Federal Personnel Manual (FPM) chapter 630, subchapter 3-4, "pertaining to annual leave generally, which is the responsibility of the supervisor and subject to the needs of the service."⁽⁴⁾ Statement of Position at 12. Therefore, the Agency contends, Provisions 5 and 6 are "inconsistent with the FPM." Id.

The Agency also argues that Provisions 5 and 6 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute by requiring that annual leave requests be approved unless "work demands leave 'no other reasonable alternatives.'" Id. at 11 (quoting from Provision 5). The Agency asserts that the provisions establish a standard that "virtually mandates" granting annual leave. Id. at 12.

The Union states that Provision 5 "sets the basic standard for the Agency to approve requests for annual leave." Petition for Review at 5. The Union describes Provision 6 as setting "the parameters for the Agency to consider requests for advanced annual leave." Id. at 6.

B. Analysis and Conclusions

1. Meaning of the Proposals

Provision 5 requires that annual leave be approved in accordance with the procedures contained in Article 13 of the collective bargaining agreement. Under Provision 5, the Agency may only deny annual leave requests if it determines that "work demands leave no other reasonable alternatives." Provision 6 requires that the Agency consider requests for advanced annual leave from employees who meet certain criteria. Because Provision 6 states that requests will be considered "in accordance with the terms of this article," the Agency may deny requests for advanced annual leave only if it determines that "work demands leave no other reasonable alternatives."

2. Provision 5

We reject the Agency's argument that Provision 5 conflicts with FPM chapter 630, subchapter 3-4, which governs the granting of annual leave. Subchapter 3-4.b.(1) states that a decision to grant or deny annual leave requests "will generally be made in the light of the needs of the service rather than solely on the desires of the employee." This provision of the FPM does not specify any situations where granting or denial of annual leave is mandatory and affords supervisors broad discretion in responding to requests for annual leave. Where an agency has discretion 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 limits the exercise of discretion to the agency or the proposal or provision is otherwise nonnegotiable. See, for example, National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 41 FLRA 1057, 1060 (1991) petition for review filed sub nom. U.S. Department of the Army, Red River Army Depot, Texarkana, Texas v. FLRA, No. 91-1472 (D.C. Cir. Sept. 26, 1991). Consequently, negotiation over Provision 5 is not barred by FPM chapter 630, subchapter 3-4.

However, proposals placing substantive restrictions on an agency's right to determine when annual leave may be used directly interfere with management's right to assign work. See, for example, Army Information Systems Command, 42 FLRA at 1126 (proposal requiring that leave requests routinely be granted and that advanced annual leave requests be accommodated whenever possible held to directly interfere with management's right to assign work); American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 589, 600 (1991) (provision requiring that management grant annual leave requests when leave would otherwise be forfeited held to directly interfere with management's right to assign work).

Provision 5 limits the circumstances in which annual leave may be denied. Under the provision, the Agency could deny annual leave only if work demands leave "no other reasonable alternatives" to requiring an employee's presence on the job. Consequently, management would be unable to assign work to an employee during the period covered by the employee's leave request, unless it could establish that there were no other reasonable alternatives to requiring the employee to work during the requested leave period. As

Provision 5 imposes a substantive restriction on the Agency's discretion to make work assignments, we find that it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Union does not claim that Provision 5 is intended as an appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, Provision 5 is nonnegotiable.

3. Provision 6

The plain wording of Provision 6 requires management to "consider" requests for advanced annual leave fairly and objectively in accordance with Article 13 of the negotiated agreement. The provision would not prevent the Agency from denying such requests, but would require that management consider certain factors, including whether work demands are such that there are no other reasonable alternatives to denying leave.

Proposals that require management to "consider" specified factors do not direct a particular result. Such proposals preserve management's discretion to decide how to act because they permit management to weigh and assess factors and decide on a course of action based on its evaluation of the factors' significance. By requiring management only to consider certain factors, including whether work demands dictate the denial of advanced annual leave requests, Provision 6 preserves management's right to grant or deny leave and, therefore, does not directly interfere with management's right to assign work under section 7106(a)(2)(B). See, for example, National Association of Government Employees, Local R12-29 and U.S. Department of the Navy, Naval Facilities Contracts Training Center, Construction Battalion Center, Port Hueneme, California, 43 FLRA 810, 818 (1991); Health Care Financing Administration, 39 FLRA at 1199-1200. Accordingly, for the reasons more fully stated in those cases, Provision 6 is negotiable.

VIII. Provisions 7 and 8

Provision 7

Article 13, Section 14- Home leave will be granted when:

(a) the employee has completed a basic service period of twenty-four (24) months of continuous service abroad; and

(b) the employee has been selected to return for at least a one (1) year assignment.

Provision 8

Article 13, Section 17- Approved home leave will be used within ninety (90) days after the employee becomes eligible under Section 14 of this Article, unless scheduling leave within this period would restrict the employer's ability to require the presence of an employee, pursuant to its rights to assign work under 5 USC 7106(a)(2)(B), should the Employer determine that work demands leave no other reasonable alternatives.

A. Positions of the Parties

The Agency asserts that, by requiring the Agency to grant home leave, Provision 7 is inconsistent with 5 C.F.R. § 630.606(a) and is nonnegotiable.⁽⁵⁾. The Agency contends that, although an employee is entitled to leave under 5 C.F.R. § 630.606(a), that entitlement "is not equivalent to a grant of leave." Statement of Position at 14.

The Agency asserts that Provision 8 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute by requiring it to grant home leave within 90 days after an employee becomes eligible. In the Agency's view, the requirement that home leave be granted unless work demands leave no other reasonable alternatives "virtually mandates the grant of leave and eliminates management's discretion to grant or deny the leave." Id.

The Union contends that Provision 7 establishes a "standard" for the granting of home leave for eligible employees. Petition for Review at 6. The Union argues that Provision 8 establishes the time period during which home leave "should normally be used." Id.

B. Analysis and Conclusions

The Agency asserts that Provision 7 is inconsistent with 5 C.F.R. § 630.606(a). We disagree. 5 C.F.R. § 630.606(a) provides that an employee must complete 24 months of continuous service abroad to be eligible for home leave. The Agency has not explained, and it is not apparent to us, how Provision 7 conflicts with 5 C.F.R. § 630.606(a). In fact, Provision 7 includes the requirement, found in 5 C.F.R. § 630.606(a), that an employee must complete 24 months of continuous service abroad. Moreover, 5 C.F.R. § 630.606(b) provides that "[a] grant of home leave is at the discretion of an agency." Where an agency has discretion 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 limits the exercise of discretion to the agency or the proposal or provision is otherwise nonnegotiable. See, for example, National Association of Government Employees, Local R7-72 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 1019, 1025 (1991).

Provision 7 provides that home leave "will be granted" when an employee meets certain eligibility requirements. Provision 8 provides that such leave "will be used" within 90 days of the time when an employee is eligible unless work demands leave no other reasonable alternatives to denying the leave. Read together, we interpret Provisions 7 and 8 as requiring that the Agency grant home leave within 90 days after an employee becomes eligible unless, because work demands leave no other reasonable alternatives, the Agency must require an employee to work. As we noted in our discussion of Provision 5, provisions which substantively restrict management's discretion to determine whether or when to grant leave directly interfere with management's right to assign work under section 7106(a)(2)(B). Because Provisions 7 and 8 place a substantive restriction on management's right to grant home leave, these provisions directly interfere with management's right to assign work.

The Union does not assert that these provisions are intended as appropriate arrangements. Consequently, Provisions 7 and 8 are nonnegotiable.

IX. Provision 9

Article 13, Section 23A- Regardless of the duration of the absence, the Employer may consider an employee's certification as to the reason for his absence as evidence administratively acceptable. However, for an absence in excess of three work days or when the Employer has reasonable grounds to suspect the employee of leave abuse, the employer may also require a medical certificate, or other administratively acceptable evidence, as to the reason for the absence. This discretion will be exercised in a fair and objective manner.

[Only the underscored sentence is in dispute.]

A. Positions of the Parties

The Agency asserts that, because Provision 9 directly interferes with management's right "to direct its work force under section 7106(a)(2)(B), it is nonnegotiable." Statement of Position at 15. The Agency contends that the provision "imposes an impermissible substantive restriction directly on the exercise of a management right and, moreover, subjects that right to arbitral review." Id.

The Union describes Provision 9 as setting forth the Agency's "right to request a medical certificate or other reasonably acceptable evidence, including an employee's certification, to explain absence on sick leave." Petition for Review at 7.

B. Analysis and Conclusions

Initially, we find no merit in the Agency's argument that the disputed sentence of the provision is nonnegotiable because it would subject the exercise of a management right to arbitral review. As we stated in connection with Provision 3, an agency's argument that an arbitrator's judgment may be substituted for its own provides no basis for preventing negotiation over a provision.

The disputed sentence of Provision 9 requires the Agency to exercise its discretion to require evidence to support sick leave usage "in a fair and objective manner." Requiring an employee to furnish medical certification supporting certain sick leave requests is a necessary preliminary step to management's decision to impose discipline for misuse or abuse of sick leave under section 7106(a)(2)(A) of the Statute. See American Federation of Government Employees, Local 1156 and U.S. Department of the Navy, Navy Ships Parts Control Center, Mechanicsburg, Pennsylvania, 42 FLRA 1157, 1162 (1991). Further, provisions that restrict the range of management action pursuant to a right under section 7106 of the Statute, such as the right to discipline, constitute substantive limitations on the exercise of that right and, thereby, directly interfere with that right. See VAMC, Department of Memorial Affairs, 40 FLRA at 683.

In VAMC, Department of Memorial Affairs, Provision 8 required, among other things, that the agency distribute work "equitably" among employees within job classifications. In finding that the provision directly interfered with the agency's right to assign work, we noted that the Authority has found terms such as "equitable" or "equitably" to have varying substantive effects. Id. at 684. We concluded that terms such as "equitable" or "equitably," when used in proposals or provisions that govern the exercise of a management right, constitute substantive restrictions on the exercise of that right, and we stated that we would no longer follow previous decisions that held to the contrary. Id.

A requirement that management exercise its rights under the Statute in a "fair and objective" manner is not substantively different from the requirement that such a right be exercised "equitably," found to be a substantive limitation in VAMC, Department of Memorial Affairs. Consequently, for the reasons set forth more fully in VAMC, Department of Memorial Affairs, we find that the disputed sentence of Provision 9 directly interferes with the exercise of the right to impose discipline under section 7106(a)(2)(A) of the Statute.

As there is no indication in the record that the Union intends the provision to be an appropriate arrangement under section 7106(b)(3), we conclude that the disputed sentence in Provision 9 is nonnegotiable. As the Agency advances no arguments concerning the remainder of Provision 9, we conclude that it is not in dispute and will order the Agency to rescind its disapproval of it.

X. Provision 10

Article 13, Section 30B

Employees will be released for the purpose of donating blood in accordance with this Article unless permitting such release would restrict the Employer's ability to assign work under 5 USC 106(a)(2)(B), should the Employer determine that work demands leave no other reasonable alternatives.

A. Positions of the Parties

The Agency asserts that "there is no entitlement to administrative leave . . . ." Statement of Position at 16. Citing FPM chapter 630, subchapter 11, the Agency claims that administrative leave is "purely a creation of management" and that any proposal mandating such leave is inconsistent with the FPM. Id. The Agency also contends that Provision 10 "virtually mandates the grant of leave" to donate blood and "effectively eliminates management's discretion to deny leave." Id. The Agency asserts that, by eliminating such discretion, the provision directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Union states that Provision 10 "describes the standard to be used in granting employee requests to donate blood on administrative leave." Petition for Review at 7.

B. Analysis and Conclusions

Consistent with the statements of both parties, we find that Provision 10 requires the Agency to grant administrative leave to employees to donate blood.

FPM chapter 630, subchapter 11 is a Government-wide regulation which provides guidance on the granting of excused absence, that is, administrative leave. See, for example, International Association of Machinists and Aerospace Workers Union and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 714 (1988) (Bureau of Engraving). The FPM provides that agencies "have authority to grant excused absence in limited circumstances for the benefit of the agency's mission or a Government[-]wide recognized and sanctioned purpose." FPM chapter 630, subchapter 11-5.b. Further, the FPM specifically notes that blood donations "may warrant" administrative leave. FPM chapter 630, subchapter 11-6.c. As the applicable regulation authorizes grants of administrative leave to donate blood, we conclude that Provision 10 is not inconsistent with FPM chapter 630, subchapter 11.

Provision 10, however, precludes the Agency from denying administrative leave unless the Agency determines that "work demands leave no other reasonable alternatives." As we found in connection with Provision 5, this standard imposes a substantive limitation on the Agency's discretion to make work assignments. Accordingly, we find that Provision 10 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. As the Union has not argued that the provision constitutes an appropriate arrangement under section 7106(b)(3), we conclude that Provision 10 is nonnegotiable.

XI. Provision 11

Article 13, Section 32

A. An employee who is eligible to take a bar or CPA examination, or an examination for license as a professional engineer, and who serves in a functional area and position where professional accounting, professional engineering or legal knowledge is required or very helpful, shall be granted administrative leave to take such an examination.

B. Such an eligible employee shall also be granted administrative leave for travel to and attendance at an oral interview required as a prerequisite to his being licensed in the profession.

C. The time authorized under this Section is limited to a single examination for any one employee.

D. The time authorized under this Section shall not exceed three (3) days.

A. Positions of the Parties

The Agency contends that Provision 11 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because it "divests the [A]gency of any discretion in determining whether to grant leave to an employee[.]" Statement of Position at 17. The Agency asserts that Provision 11 is "virtually identical" to a provision in Chief Counsel, IRS, I, 39 FLRA 27, which the Authority found was nonnegotiable. Id.

The Union asserts that Provision 11 merely sets forth a procedure for "considering" requests for administrative leave. Petition for Review at 7.

B. Analysis and Conclusions

Provision 11 requires the Agency to grant administrative leave to an employee who is eligible to take certain professional examinations, if the employee works in an area where such professional expertise "is required or very helpful."

Provision 11 has the same effect as Provision 5 in Chief Counsel, IRS, I, which required the agency to grant administrative leave to enable certain employees to take a bar or CPA examination. We held that the provision directly interfered with management's right to assign work because it failed to preserve management's discretion to decide whether to grant administrative leave. We noted that, although the union argued that Provision 5 granted administrative leave only after an employee's absence to take an examination was approved, the requirement in Provision 5 that employees "will be granted administrative leave" mandated the approval of such leave. 39 FLRA at 43.

Like the disputed provision in Chief Counsel, IRS, I, Provision 11 requires the Agency to grant administrative leave. We reject, in this regard, the Union's assertion that the provision merely describes a "procedure for considering requests for administrative time to take bar or CPA exams." Petition for Review at 7. The provision plainly states that eligible employees "shall be granted" administrative leave to take certain professional examinations and for related travel. We do not base negotiability determinations on a union's statement of intent which is inconsistent with the plain wording of the provision. See, for example, Chief Counsel, IRS, I, 39 FLRA at 43. Consequently, as Provision 11 requires the Agency to grant administrative leave to eligible employees to take certain professional licensing examinations, we conclude that it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. As the Union does not assert that Provision 11 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, we conclude that it is nonnegotiable.

XII. Provision 12

Article 13, Section 40- The Employer agrees to approve leave without pay in the following circumstances when it will not restrict the Employer's ability to require the presence of an employee, pursuant to its rights to assign work under 5 USC 7106(a)(2)(B), should the employer determine that work demands leave no other reasonable alternatives:

(a) For one (1) year to any employee elected to positions of National President or Executive Vice President of the National Treasury Employees Union. Such leave will be extended on a year by year basis, and will be terminated when the employee leaves office.

(b) For one (1) year for up to three (3) employees who have been selected to serve full-time in appointive positions with the National Treasury Employees Union. Such leave will be extended on a year by year basis for up to no more than four (4) years, and will be terminated when the employee leaves such employment.

(c) For one (1) school year for an employee to participate in full-time study at an accredited institution of higher learning when the following conditions are met:

(1) the study is directly related to the employee's position in the Customs Service;

(2) the employee has completed a minimum of five (5) years of service with the Customs Service;

(3) the employee is judged by his supervisor to be performing his duties at least at an acceptable level of competence;

(4) it can reasonably be anticipated that the employee will return to work in the Customs Service upon completion of the study period; and

(5) the approval of such leave will not restrict the Employer's ability to require the presence of an employee, pursuant to its rights to assign work under 5 USC 7106(a)(2)(B), should the Employer determine that work demands leave no other reasonable alternatives.

Such leave will be terminated at such time as an employee withdraws or is dropped form [sic] the study program.

(d) For up to six (6) months when an employee has an illness or injury, that would otherwise be covered by sick leave, when the following conditions are met:

(1) the employee's annual leave and sick leave has been exhausted;

(2) there is reasonable assurance that the employee can and will return to work at the Customs Service at the conclusion of the leave period; and

(3) the approval of such leave will not restrict the employer's ability to require the presence of an employee, pursuant to its rights [sic] to assign work under 5 USC 7106(a)(2)(B), should the Employer determine that work demands leave no other reasonable alternatives.

A. Positions of the Parties

The Agency contends that Provision 12 applies a "no reasonable alternatives" standard to management's decisions to grant or deny leave without pay (LWOP). Statement of Position at 19, 20. The Agency asserts that the provision directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute by eliminating its discretion to deny such leave.

The Agency acknowledges that the Authority found proposals similar to paragraphs (a) and (b) of Provision 12 to be negotiable as appropriate arrangements in Chief Counsel, IRS, I, but argues that the Authority "erred" in that decision. Statement of Position at 20. The Agency asserts that "proposals which mandate the grant of leave to an employee not only interfere with the right to assign work to him, they abrogate it." Id. Therefore, in the Agency's view, paragraphs (a) and (b) of Provision 12 excessively interfere with management's right to assign work under section 7106(a)(2)(B) and are nonnegotiable.

The Agency contends that paragraphs (c) and (d) of Provision 12 are inconsistent with FPM chapter 630, subchapter 12-2, which, according to the Agency, does not entitle employees, "as a matter of right," to LWOP for educational purposes or LWOP in lieu of sick leave.⁽⁶⁾ Id. The Agency asserts that paragraphs (c) and (d) "virtually mandate[]" grants of LWOP in circumstances where such grants are not required by the FPM. Id. at 21. The Agency also argues that these paragraphs directly interfere with management's right to assign work because they "effectively eliminate[] management's discretion to deny leave." Id. at 16.

The Union describes Provision 12 as establishing:

the procedure for considering employee requests for leave without pay for the following purposes: serving as an elected or appointed national officer in the Union; studying at an accredited institution of higher learning; and during an illness or injury when annual and sick leave [have] been exhausted.

Petition for Review at 9.

B.Analysis and Conclusions

1. Paragraphs (a) and (b)

Paragraphs (a) and (b) of Provision 12, concerning grants of LWOP to serve the Union, have the same substantive effect on management's right to assign work under section 7106(a)(2)(B) of the Statute as Provision 5, which requires approval of requests for annual leave unless work demands leave no other reasonable alternatives to employees remaining on the job. As noted in connection with Provision 5, the authority to grant or deny leave is a component of management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, Chief Counsel, IRS, I, 39 FLRA at 46. Provisions which substantively restrict management actions in exercising a right under section 7106 of the Statute directly interfere with the exercise of that right.

The requirement that the Agency grant requests for LWOP unless work demands leave no other reasonable alternatives constitutes a substantive restriction on management's right to assign work. Accordingly, paragraphs (a) and (b) directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. As paragraphs (a) and (b) directly interfere with management's right to assign work, they do not constitute negotiable procedures under section 7106(b)(2). Army Information Systems Command, 42 FLRA at 1127. Consequently, as the Union does not claim that paragraphs (a) and (b) are intended as appropriate arrangements under section 7106(b)(3), we find that these paragraphs are nonnegotiable.

2. Paragraphs (c) and (d)

We reject the Agency argument that, by requiring management to grant LWOP for educational purposes and illness or injury, paragraphs (c) and (d) are inconsistent with FPM chapter 630, subchapter 12-2. FPM chapter 630, subchapter 12-2 authorizes LWOP for education and for recovery from illness or disability as "a matter of administrative discretion." See n.5. Accordingly, the regulation does not preclude the Agency from granting LWOP for the reasons described in paragraphs (c) and (d).

However, we find that paragraphs (c) and (d) directly interfere with management's right to assign work. Paragraph (c) obligates the Agency to grant employees' LWOP requests for educational purposes. Under subsection (5) of that paragraph, such requests can be denied only when the employee's presence is required by work demands leaving "no other reasonable alternatives." Paragraph (d) of Provision 12 authorizes LWOP for employees whose absences "would otherwise be covered by sick leave[,]" The Agency can deny a request when "work demands leave no other reasonable alternatives" than to require the employee's presence on the job. As noted in connection with paragraphs (a) and (b) of this provision, the obligation to grant LWOP unless work demands leave no other reasonable alternatives substantively restricts management's exercise of its right to assign work. In imposing that obligation, paragraphs (c) and (d) directly interfere with the Agency's right to assign work. As paragraphs (c) and (d) directly interfere with management's right to assign work, they do not constitute negotiable procedures under section 7106(b)(2). As the Union makes no claim that paragraphs (c) and (d) are intended as appropriate arrangements under section 7106(b)(3), we find that these paragraphs are nonnegotiable.

3.Summary

Provision 12 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and, in the absence of a Union claim that it constitutes an appropriate arrangement, is nonnegotiable.

XIII. Provision 13

Article 13, Section 43- Any other requests for leave without pay will be closely examined by the Employer to assure that the value to the Employer or the serious needs of an employee are sufficient to offset the costs and administrative inconveniences to the Employer which results [sic] from the retention of an employee in a leave without pay status. The Employer shall approve such requests for leave without pay in a fair and objective manner in accordance with applicable regulations.

A. Positions of the Parties

The Agency contends that Provision 13 interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency also asserts that use of the term "fair and objective" subjects the Agency's decision to deny LWOP "to arbitral review which can result in an arbitrator's substituting his or her judgment for that of the [A]gency in what is plainly the exercise of a management right." Statement of Position at 8.

The Union states that Provision 13 "describes procedures for the Employer to consider requests for leave without pay of types not specifically covered in another section of the Article." Petition for Review at 9.

B. Analysis and Conclusions

As we stated in connection with Provisions 3 and 9, an agency's argument that an arbitrator's judgment may be substituted for its own provides no basis for barring negotiation over a provision. However, as discussed in connection with Provision 9, a requirement that management exercise its right to assign work in a "fair and objective manner" is a substantive limitation on, and directly interferes with, the exercise of that right. The second sentence of Provision 13 requires management to approve requests for LWOP in a fair and objective manner. Accordingly, that sentence directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.

As the provision directly interferes with management's right to assign work, it does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. Army Information Systems Command, 42 FLRA at 1127. Therefore, in the absence of a claim by the Union that Provision 13 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, it is nonnegotiable.

XIV. Provision 14

Article 13, Section 44A- An employee who returns to duty after leave without pay for forty-five (45) days or less will be returned to the position held at the post of duty at the time the leave began.

Section 44B- An employee who returns to duty after leave without pay of more tha[n] forty-five (45) days will be:

(1) placed in the position, or a like position at the post of duty held at the time leave began, if available; or, if not available,

(2) placed in a like position in the general commuting area, if available; or if not available,

(3) placed in a like position somewhere within the Region or the National Headquarters Office, as appropriate.

A. Positions of the Parties

The Agency asserts that Provision 14 is nonnegotiable because it directly interferes with management's right, under section 7106(a)(2)(A) of the Statute, to assign employees. The Agency argues that section 44A is nonnegotiable based on the holding concerning the first sentence of Provision 10 in Chief Counsel, IRS, I, 39 FLRA at 50. The Agency states that it objects to section 44B because "the ambiguous phrasing . . . regarding the word 'available' . . . may be read to require return to the position held." Statement of Position at 22.

The Union states that Provision 14 "sets forth a procedure to return employees to duty after being on leave without pay." Petition for Review at 10.

B. Analysis and Conclusions

The right to assign employees under section 7106(a)(2)(A) of the Statute includes the right to determine which employee will be assigned to a particular position. See Chief Counsel, IRS, I, 39 FLRA at 51 (provision requiring agency to attempt to place employee returning from leave of absence in position he or she previously held found to directly interfere with management's right to assign employees). Section 44A requires that the Agency place employees returning from LWOP of 45 days or less in the positions they previously held and, therefore, substantively limits the Agency's discretion to decide which employees to assign to positions. Accordingly, we find, consistent with Chief Counsel, IRS, I, that section 44A directly interferes with management's right to assign employees.

Section 44B requires management to place employees returning after more than 45 days of LWOP in a "like position," as available, according to the following priority: (1) the position held by the employee prior to departure on LWOP, or at the same post of duty; (2) a position in the general commuting area; or (3) a position in the same region or the national headquarters office. The section does not define "like position." However, based on the wording of the provision as a whole, we interpret the term "like position" as encompassing positions with duties and responsibilities comparable to those of positions previously held.

Section 44B provides management with limited discretion in deciding where to assign a returning employee. Under that section, the Agency is not obligated to assign the employee at his/her prior post of duty or to a position in the general commuting area if no like position is available. However, ultimately, if no appropriate position is available either at the employee's prior duty station or in the commuting area, management is required to place the employee in a like position in the region or national headquarters. Therefore, as section 44B limits management's discretion in deciding which employees to assign to positions, it directly interferes with the right to assign employees for the same reasons discussed in connection with section 44A.

As Provision 14 directly interferes with management's rights to hire and assign employees, and to make selections for positions, it does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. Army Information Systems Command, 42 FLRA at 1127. Accordingly, in the absence of a claim by the Union that the provision is an appropriate arrangement, it is nonnegotiable.

XV. Provisions 15 and 16

Provision 15

Article 13, Section 51- A period of maternity or paternity leave of up to sixty (60) days will be made available to an employee who adopts an infant. Leave requests for additional time will be considered on an individual basis, and will be approved under the procedures and conditions set forth in this Article and the regulations applicable to it.

Provision 16

Article 13, Section 53- The Employer will approve, under the procedures and conditions set forth in the Article and the regulations applicable to it, a period of leave for up to sixty (60) days for a male employee for the purposes of assisting or caring for his minor children or the mother of his newborn child while she is incapacitated for maternity reasons.

A. Positions of the Parties

The Agency contends that Provisions 15 and 16 are nonnegotiable because they conflict with the requirements of FPM chapter 630, subchapter 13.⁽⁷⁾ The Agency states that, as FPM chapter 630, subchapter 13 does not mandate the granting of leave for parental and family responsibilities, the obligation to grant such leave under the provisions is inconsistent with that regulation. The Agency also contends that FPM chapter 630, subchapter 13-6.a "contemplates" the use of only annual leave or LWOP for adoption purposes. Statement of Position at 23. According to the Agency, Provision 15 is inconsistent with the FPM because the provision can be read as requiring grants of sick leave for adoption. The Agency also asserts that, insofar as Provisions 15 and 16 require the Agency to grant leave unless there are "no reasonable alternatives," they directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Union states that Provision 15 "describes an employee's opportunity to receive maternity or paternity leave to adopt an infant." Petition for Review at 10. The Union states that Provision 16 sets forth "the procedure for a male employee to request leave to assist in the care of minor children or the mother of his newborn child while she is incapacitated for maternity reasons." Id.

B. Analysis and Conclusions

We reject the Agency's argument that Provisions 15 and 16 are inconsistent with FPM chapter 630, subchapter 13 because they require the Agency to grant leave in circumstances where, under the regulation, leave may, but need not, be granted. In advancing that argument, the Agency acknowledges that it has discretion under the regulation to grant leave in the circumstances described by the provisions. The Authority has consistently held that proposals concerning matters affecting conditions of employment that are within the discretion of an agency and are not otherwise inconsistent with law or applicable rule or regulation are negotiable. See, for example, U.S. Department of Defense, Office of Dependents Schools and Overseas Education Association, 40 FLRA 425, 441-42 (1991). Accordingly, as the Agency has discretion to grant the leave sought by the provisions, we find no conflict between the provisions and FPM chapter 630, subchapter 13.

We also reject the Agency's argument that Provision 15 is inconsistent with the FPM because it does not specify the categories of leave that an Agency may grant for adoption. Nothing in the wording of that provision requires the Agency to grant leave other than annual leave or LWOP, which are authorized by FPM chapter 630, subchapter 13, for adoption purposes.

However, we find that Provisions 15 and 16 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. Provision 15 mandates that up to 60 days of leave "will be made available" to an employee who adopts an infant and that requests for additional leave will be approved in accordance with Article 13. Provision 16 provides that the Agency "will approve" leave of up to 60 days for a new father to care for his children or the mother of his newborn child in accordance with "the procedures and conditions" set forth in Article 13.

Neither Provision 15 nor Provision 16 makes an exception to the required grant of 60 days' leave for workload requirements or the need for an employee's services. Furthermore, by requiring that leave be granted under the procedures and conditions in Article 13, Provisions 15 and 16 prevent the Agency from denying leave unless "work demands leave no other reasonable alternatives." As the provisions eliminate the Agency's discretion to deny leave, they directly interfere with management's right under section 7106(a)(2)(B) of the Statute to assign work. See our discussion of Provisions 5, 6, and 12.

Because the provisions directly interfere with management's right to assign work, they do not constitute negotiable procedures under section 7106(b)(2) of the Statute. Army Information Systems Command, 42 FLRA at 1127. In the absence of a claim by the Union that Provisions 15 and 16 are appropriate arrangements, they are nonnegotiable.

XVI. Provision 17

Article 14, Section 5C- For the purposes stated in this Article, the employee may work such compensatory overtime before or after the grant of compensatory time off. The employee may earn such compensatory time off no more than five (5) pay periods prior to the date of its use. Compensatory time off for religious observances earned but not used within this time frame will be converted to normal compensatory time off at the end of the fifth (5th) pay period and be subject to the normal regulations which govern compensatory time off. A grant of advanced compensatory time off for religious observances shall be repaid by the appropriate amount of compensatory overtime work within five (5) pay periods of its use. Time not repaid will be charged to the employee's annual leave account at the end of the fifth (5th) pay period by amending the time card(s) as appropriate. Compensatory overtime work shall be credited and repaid on an hour for hour basis using full hours only. Bargaining unit employees will continue to have twelve (12) pay periods to earn and repay compensatory time until such time as the Employer implements a five (5) pay period earning and repayment requirement for non-unit Customs employees.

A. Positions of the Parties

The Agency contends that Provision 17 is nonnegotiable because it is inconsistent with 5 C.F.R. § 550.1002(d).⁽⁸⁾

In the Agency's view, "[t]o the extent that this provision treats 'religious' time as interchangeable with 'normal' compensatory time, it is contrary to [G]overnment-wide regulation and therefore non-negotiable." Statement of Position at 26.

The Union states that Provision 17 "sets forth the procedure for employees to earn and use compensatory time for religious observances." Petition for Review at 12.

B. Analysis and Conclusions

The Agency's sole objection to Provision 17 is based on its view that compensatory time off for religious observances cannot be converted to normal compensatory time off under 5 C.F.R. § 550.1002(d). We disagree.

Under 5 C.F.R. § 550.1002(d), an employee who works compensatory overtime to earn time off for religious observances is not eligible for premium pay. However, Provision 17 does not provide premium pay in this situation. Rather, the provision requires only that such compensatory time be converted to "normal compensatory time off" if it is not used within the specified time. As the provision does not concern premium pay, it does not conflict with 5 C.F.R. § 550.1002(d). Moreover, we note that, under the provision, the conversion of compensatory time for religious observances to normal compensatory time is "subject to the normal regulations which govern compensatory time off."

Provision 17 does not conflict with 5 C.F.R. § 550.1002(d). As the Agency provides no other grounds for finding the provision to be nonnegotiable, and none are apparent to us, we find that Provision 17 is negotiable.

XVII. Provision 18

Article 15, Section 2A- The acceptable level of competence determination will be made by the employee's immediate supervisor in a fair and objective manner, and free of personal favoritism.

Section 2C- If the supervisor decides to withhold a within-grade increase, the employee will be given sixty (60) days within which to demonstrate performance at an acceptable level of competence. This notice will be provided through the issuance of a performance improvement plan (PIP), in accordance with Article 16, section 12. If sixty (60) days in advance of the within-grade due date, the employee is on a PIP which includes a warning that a within grade may be withheld, then no additional notice will be required. If the employee's performance improves to the Fully Successful level, then the notice will be cancelled. In these cases, the WGI will be made retroactive to the date it was otherwise due.

A. Positions of the Parties

The Agency maintains that, by requiring that acceptable level of competence determinations be fair and objective, section 2A of Provision 18 imposes a substantive restriction on management's right to direct employees under section 7106(a)(2)(A) of the Statute. In the Agency's view, the fair and objective criteria apply to the content of performance standards for determining acceptable level of competence rather than to their application. The Agency also asserts that section 2A directly interferes with management's right to assign work under section 7106(a)(2)(B) by requiring immediate supervisors to make acceptable level of competence determinations. Finally, the Agency contends that section 2C requires the Agency to award within-grade increases retroactively and, thereby, conflicts with 5 C.F.R. § 531.412(b), a Government-wide regulation.⁽⁹⁾

The Union describes section 2A as requiring "the Agency to be fair and objective in making acceptable level of competence determinations." Petition for Review at 12. The Union states that section 2C of Provision 18 establishes "a procedure to provide employees an opportunity to demonstrate performance at the acceptable level of competence if the Agency decides to withhold a within-grade increase." Id. at 13.

B. Analysis and Conclusions

1. Section 2A

Provisions which determine the content of performance standards directly interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and are nonnegotiable. See, for example, National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 465 (1990) (Naval Underwater Systems Center), 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) (order). However, provisions which concern the application of performance standards do not directly interfere with management's rights to direct employees and assign work and are negotiable. See, for example, American Federation of Government Employees, Local 1799, AFL-CIO and U.S. Army, Aberdeen Proving Ground, Aberdeen Proving Ground, Maryland, 26 FLRA 926, 932 (1987) (Aberdeen Proving Ground).

Section 2A does not address or restrict the content of standards defining the acceptable level of competence. Rather, that section requires only that supervisors apply whatever criteria management has established fairly, objectively, and without personal favoritism in determining whether employees are performing at the acceptable level of competence. In this respect, section 2A is similar to Provision 3 in Aberdeen Proving Ground, which the Authority found merely prescribed criteria for reviewing the application of a performance standard to an employee and did not directly interfere with management's rights to direct employees and assign work. Similarly, by requiring employees' immediate supervisors to evaluate employees fairly, objectively, and without personal favoritism, section 2A establishes criteria for the application of performance standards. Accordingly, for the reasons stated more fully in Aberdeen Proving Ground, we find that section 2A does not determine the content of performance standards and, consequently, does not directly interfere with management's right to direct employees and assign work.

We turn now to the Agency's additional contention that section 2A directly interferes with management's right to assign work under section 7106(a)(2)(B) by requiring the immediate supervisor to make acceptable level of competence determinations. Proposals requiring the assignment of specific duties to particular individuals, including management officials, directly interfere with management's right under section 7106(a)(2)(B) of the Statute to assign work. Consequently, as section 2A assigns a specific function to a particular management official, it directly interferes with management's right to assign work. See, for example, National Treasury Employees Union and Department of Agriculture, Food and Nutrition Service, 35 FLRA 254, 260-61 (1990) (although specific duty "would be best accomplished" by identified management official, proposal held to directly interfere with management's right to assign work, despite "awkward" result). Compare National Labor Relations Board Union and National Labor Relations Board, 42 FLRA 1305, 1319 (1991) (proposal held not to dictate the particular individual to whom management would assign a certain function and, consequently, not to directly interfere with the right to assign work) petition for review filed sub nom. National Labor Relations Board v. FLRA, No. 91-1608 (D.C. Cir. Dec. 18, 1991). The Union does not claim that the section constitutes an appropriate arrangement under section 7106(b)(3). Accordingly, section 2A is nonnegotiable.

2. Section 2C

Section 2C of Provision 18 requires that, if the supervisor decides to deny an employee's within-grade increase, that decision will be communicated to the employee through issuance of a "performance improvement plan (PIP)," which gives the employee 60 days to demonstrate performance at the acceptable level of competence. Further, the last sentence of section 2C requires that if a within-grade increase is withheld and the employee's performance improves to an acceptable level of competence during the 60-day PIP period, the within-grade increase will be made retroactive to the date it was due.

5 C.F.R. § 531.412(b) provides that, when an employee demonstrates an acceptable level of competence after a negative determination, the within-grade increase will be effective at the beginning of the pay period following the positive determination. Accordingly, we find that the last sentence of section 2C, which requires that the increase be retroactive to the end of the waiting period, is inconsistent with 5 C.F.R. § 531.412 (b). Compare 5 C.F.R. § 531.409(c)(2)(iii) (providing for retroactive within-grade increase when level of competence determination is delayed and employee's performance is later determined to be at an acceptable level). 5 C.F.R. § 531.412(b) is a Government-wide regulation within the meaning of section 7117(a) of the Statute. American Federation of Government Employees, Local 1760, AFL-CIO, and Department of Health and Human Services, Social Security Administration, 23 FLRA 168, 169 (1986). Consequently, the last sentence of section 2C is nonnegotiable. As the Agency advances no additional arguments concerning section 2C, we conclude that the remainder of that section is not in dispute and will order the Agency to rescind its disapproval of it.

XVIII. Provisions 19, 36, 37, 39, and 40

Provision 19

Article 15, Section 10- The Employer will provide the Union with unsanitized copies of any written notices, decision letters and reconsideration letters referred to in this Article simultaneous to their issuance to the employee.

Provision 36

Article 28, Section 13- The Employer will provide the Union with unsanitized copies of all admonishments, written reprimands, and proposal and decision letters for suspensions of fourteen (14) days or less, simultaneous to their issuance to the employees.

Provision 37

Article 29, Section 12- The Employer will provide the Union unsanitized copies of all unacceptable performance action proposal and decision letters simultaneous to their issuance to employees.

Provision 39

Article 30, Section 9- The Employer's final decision shall contain the reasons supporting the decision; will address employee allegations of pertinent factual discrepancies concerning the incident; and will be served upon the employee and the Union. For the purpose of computing any time limit which may be relevant to the adverse action, the date of service on the employee shall be controlling.

Provision 40

Article 30, Section 17- The Employer will provide the Union with unsanitized copies of all adverse action proposal and decision letters, simultaneous to their issuance to the employees.

A. Positions of the Parties

The Agency contends that Provisions 19, 36, 37, 39, and 40 are nonnegotiable because they conflict with the Privacy Act, 5 U.S.C. § 552a. Relying on U.S. Department of Justice and Immigration and Naturalization Service, 37 FLRA 1346 (1990) (INS, I), request for reconsideration denied, 38 FLRA 946 (1990), petition for review dismissed as to other matters sub nom. United States Department of Justice, Immigration and Naturalization Service v. FLRA, No. 90-1613 (D.C. Cir. Nov. 6 1991), the Agency argues that the Union's interest in the blanket, unsanitized release of information encompassed by these provisions is outweighed by the employees' interest in keeping such information private. The Agency notes that Provision 39 is preceded by wording in the parties' agreement indicating that an employee may designate the Union as his or her representative. However, the Agency asserts that it is not clear that Provision 39 "is to apply only in circumstances where the [U]nion has been designated the employee's representative . . . ." Statement of Position at 54.

The Union states that Provision 19 "provides the Union with copies of unsanitized documents related to the acceptable level of competence determination." Petition for Review at 13. According to the Union, Provisions 36, 37, 39, and 40 permit it to receive unsanitized copies of all documents concerning disciplinary and adverse actions at the time that they are given to employees.

B. Analysis and Conclusions

The Privacy Act generally prevents the disclosure of personal information about Government employees without their consent. See generally National Treasury Employees Union and U.S Department of Energy, Washington, D.C., 41 FLRA 1241, 1251 (1991) (Department of Energy), petition for review filed sub nom. United States Department of Energy v. FLRA, No. 91-1514 (D.C. Cir. Oct. 21, 1991). However, under 5 U.S.C. § 552a(b)(2), information must be released if required by the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Exemption (b)(6) of the FOIA, 5 U.S.C. § 552(b)(6), does not require release of information in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy." In determining whether requested information is excepted from disclosure by FOIA exemption (b)(6), an individual's right to privacy must be balanced against the public interest in having the information disclosed. See Department of Energy, 41 FLRA at 1251 and Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1424 (1991).

Consistent with their plain wording, and in the absence of Union assertions to the contrary, Provisions 19, 36, 37, 39, and 40 require the Agency to furnish the Union with specified information whether or not the Union has been designated as the affected employee's representative. The information encompasses unsanitized proposals and decisions on disciplinary and adverse actions and would specify the facts leading to management's decision to propose and/or impose discipline. Consequently, release of the unsanitized documents would reveal highly personal information concerning an employee's performance or conduct on the job.

The disclosure required by the provision could assist the Union in performing its representational functions. See Department of Energy, 41 FLRA at 1254. However, we find that the sensitive and personal nature of the information in the documents implicate significant privacy interests which outweigh the public interest in the disclosure of those unsanitized documents. Therefore, we conclude that the disclosure required by the provisions would result in a clearly unwarranted invasion of the employees' personal privacy, within the meaning of exemption b(6) of the FOIA, and, consequently, is barred by the Privacy Act. See id. at 1254-55. As Provisions 19, 36, 37, 39, and 40 are inconsistent with the Privacy Act, they are nonnegotiable under section 7117(a)(1) of the Statute.

Our decision does not prevent the Union from requesting specific information under section 7114(b)(4) of the Statute, including information that is unsanitized and that concerns employees who have not designated the Union as their representative. In that event, the Authority would then determine whether disclosure of the information is consistent with law. See INS, 37 FLRA at 1364-65 and cases cited there.

XIX. Provision 20

Article 16, Section 4C- The elements and performance standards established under Subsection A above will be consistent with the duties and responsibilities contained in the employee's position description.

A. Positions of the Parties

The Agency maintains that Provision 20 imposes "substantive contractual restrictions" on management's authority to establish performance standards and directly interferes with its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and to assign work. Statement of Position at 30. Relying on Naval Underwater Systems Center, 38 FLRA at 464-66, the Agency argues that the word "'consistent' . . . is a substantive term, not restricted to the application of the performance standards, but applicable to the content of the standards themselves." Id.

The Union states that Provision 20 "relates an employee's performance elements and standards to the position description." Petition for Review at 13.

B. Analysis and Conclusions

Provision 20 is nearly identical to the disputed portion of a proposal, which the Authority held was negotiable, in National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA 1067, 1074 (1987) (FNS, Midwest Region), petition for review denied as to other matters sub nom. National Treasury Employees Union v. FLRA, 848 F.2d 1273 (D.C. Cir. 1988). That disputed proposal required that performance elements and standards be consistent with the duties and responsibilities contained in the employee's position description. The Authority found that the required consistency between position descriptions on one hand and critical elements and performance standards on the other "would not limit the agency's choice of critical elements or performance standards." Id. at 1074. The Authority noted that the agency could attain the consistency required by the proposal simply by amending the position description.

Accordingly, the Authority held that the proposal was a negotiable procedure under section 7106(b)(2) of the Statute.

Provision 20 is substantively identical to the disputed proposal in FNS, Midwest Region. Accordingly, consistent the holding in that case, we conclude that Provision 20 constitutes a negotiable procedure within the meaning of section 7106(b)(2).

XX. Provision 21

Article 16, Section 6A- The performance plans issued by the Employer will be fair and accurate and will contain performance elements and performance standards which meet the following criteria:

(1) They will be consistent with the duties and responsibilities contained in the position description, or, when applicable, consistent with an appropriate statement of unclassified duties;

(2) They will be consistent with the grade level of the position;

(3) They will be reasonable for each position;

(4) They will be job related rather than trait related, unless the trait or personal characteristic is clearly job related and capable of being observed and documented (e.g., extent of courtesy demonstrated);

(5) They will be attainable at the Fully Successful level and may be exceeded;

(6) [T]he Employer has determined they will be written so that Marginal and Unacceptable performance can be identified and remedial action justified;

(7) They will provide for consistency within an occupation represented Servicewide; and

(8) They will not be based on isolated instances.

A. Positions of the Parties

The Agency contends that, "[w]ith the exception of paragraph 6 which includes the phrase 'the Employer has determined,'" Provision 21 imposes "impermissible contractual restrictions" on its right to establish performance standards.⁽¹⁰⁾ Statement of Position at 32. Accordingly, the Agency argues that Provision 21 "directly interferes with management's rights to direct employees and to assign work" and is nonnegotiable. Id.

The Union states that Provision 21 "describes the performance plans which will be issued by the Employer." Petition for Review at 14.

B. Analysis and Conclusions

Paragraph (1) of Provision 21 requires that performance elements and standards be consistent with duties and responsibilities contained in position descriptions or other statements of unclassified duties. This paragraph is substantively identical to Provision 20 and, accordingly, is a negotiable procedure under section 7106(b)(2) of the Statute for the reasons stated in our analysis of Provision 20.

We find that paragraphs (2), (3), (4), (5), (7), and (8) of Provision 21 directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B).

As discussed previously in connection with section 2A of Provision 18, proposals restricting an agency's right to determine the content of performance standards and critical elements directly interfere with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. See, for example, National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearing and Appeals, Baltimore, Maryland, 39 FLRA 346, 350-54 (1991) (SSA, Office of Hearings and Appeals) (Provision 2, which required that performance standards be, among other things, objective, explicit, observable or measurable, and attainable, held to directly interfere with management's right to direct employees and assign work).

Paragraphs (2), (3), (4), (5), (7), and (8) of Provision 21 contain criteria similar to those in Provision 2 in SSA, Office of Hearings and Appeals and are applicable to the content of performance standards and critical elements. Accordingly, these paragraphs directly interfere with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. See id. See also American Federation of Government Employees, AFL-CIO, Local 1458 and U.S. Department of Justice, Office of the U.S. Attorney, Southern District of Florida, 29 FLRA 3, 10-11 (1987) (provision requiring that performance standards and critical elements be consistent with the employee's official duties and responsibilities held to directly interfere with management's rights to direct employees and assign work).

In sum, we conclude that paragraph (1) of Provision 21 is a negotiable procedure under section 7106(b)(2). We also conclude that paragraphs (2), (3), (4), (5), (7), and (8) directly interfere with management's rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work. As the Union does not assert that these latter paragraphs are intended as appropriate arrangements, they are nonnegotiable.

XXI. Provision 22

Article 16, Section 10A- At the conclusion of the annual appraisal period, the supervisor will prepare a fair and objective written performance appraisal. The appraisal shall consist of an assessment of whether the employee meets, fails to meet or exceeds the fully successful standard for each element set forth in the performance plan. [T]he supervisor will prepare a brief narrative when the employee fails to meet the fully successful or marginal standard for any element. [T]he narrative will include examples of performance which fails to meet the marginal or fully successful standard of performance. The employee will be assigned one of the adjective ratings set forth in Section 2. Summary ratings will not be assigned to individual performance elements. The supervisor should rate the employee on observed and/or documented facts. Each element should be rated separately and independently of all others so that the rating on one element does not unjustifiably influence ratings on other elements. The supervisor should take care to evaluate the employee against the position requirements, rather than against other employees.

A. Positions of the Parties

The Agency contends that Provision 22 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) because it "sets forth the required contents of a performance appraisal[.]" Statement of Position at 32. In support, the Agency cites Naval Underwater Systems Center, 38 FLRA at 464-66. The Agency also asserts that the provision interferes with management's right to assign work by requiring that "the immediate supervisor prepare the performance appraisal . . . ." Id. at 33.

The Union describes Provision 22 as establishing "the procedure for employees to receive an annual performance appraisal." Petition for Review at 15.

B. Analysis and Conclusions

As noted in connection with our analysis of section 2 of Provision 18, proposals concerning the application of performance standards do not conflict with management's rights to direct employees and assign work. See, for example, Aberdeen Proving Ground, 26 FLRA at 932. We find that Provision 22 concerns the application of performance standards. The first two sentences of the provision obligate management to evaluate employees' performance fairly and objectively based on the standards contained in the Agency's performance plan. The remainder of the provision requires supervisors to prepare narratives with examples of performance, rate employees on observed and/or documented facts, and rate each element separately.

The Agency's reliance on Naval Underwater Systems Center, 38 FLRA at 464-66 is misplaced. The Agency argues that, in Naval Underwater Systems Center, the Authority found that "a proposal requiring performance standards to be 'fair and equitable'" directly interfered with management's right to direct employees and assign work. Statement of Position at 32. Nothing in the plain wording of Provision 22, however, addresses the content of the performance standards established by management. In fact, the Agency asserts that the provision "sets forth the required contents of a performance appraisal . . . ." Statement of Position at 32 (emphasis added). Accordingly, we find that the provision does not interfere with the Agency's rights under section 7106(a)(2)(A) and (B) to direct employees and assign work. See Aberdeen Proving Ground, 26 FLRA at 932 (provision establishing "fair and reasonable" standard for application of performance standards held to be negotiable).

The Agency also argues that Provision 22 interferes with management's right to assign work because it assigns a specific function to an identified management official. As Provision 22 identifies the person who prepares the performance evaluation as the "supervisor," we view the provision as requiring only that someone within an employee's supervisory chain prepare the employee's appraisal. In this connection, we note that the regulation governing performance management, 5 C.F.R. Part 430, uses the term "supervisor," among others, to identify the management official responsible for appraising performance, without assigning that function to a specific individual. See 5 C.F.R. §§ 430.204(c) and 430.206(c). Accordingly, we find that Provision 22 does not dictate the particular individual who is responsible for preparing a performance appraisal. Rather, management retains discretion to choose who will evaluate an employee's performance. Compare section 2A of Provision 18 (requiring that "immediate supervisor" make acceptable level of competence determination).

As Provision 22 does not interfere with the Agency's rights to direct employees and assign work, it is negotiable.

XXII. Provision 23

Article 18, Section 16- If, in an emergency situation, an agent from the Office of Internal Affairs is assigned to investigate an Equal Employment Opportunity complaint, the agent will inform employees who are interviewed that his purpose is to gather facts relative to the processing of a formal Equal Employment Opportunity complaint. At the time the agent moves beyond matters directly and solely related to the EEO complaint, he will notify the employee of the expansion of the investigation and provide the employee all appropriate notices called for elsewhere in this Agreement.

A. Positions of the Parties

The Agency asserts that, under Provision 23, equal employment opportunity (EEO) complaint investigations may be assigned to agents of the Office of Internal Affairs only in emergency situations and, thereby, the provision directly interferes with the right to assign work under section 7106(a)(2)(B) of the Statute. Additionally, the Agency argues that the provision interferes with its right to determine its internal security practices under section 7106(a)(1). The Agency claims that, by requiring notice to employees of expanded investigations in all circumstances, the provision hampers its internal security investigations. The Agency contends that, in certain investigations, "the need for secrecy is paramount." Statement of Position at 33. The Agency also asserts, without elaboration, that the provision interferes with its right to discipline employees.

The Union states that Provision 23 "is intended to ensure that employees are properly notified of the expansion of an EEO investigation an[d] given all appropriate notices called for in the Agreement to protect their rights during an Internal Affairs interview." Petition for Review at 15.

B. Analysis and Conclusions

We reject the Agency's argument that, except in emergencies, Provision 23 would prevent it from assigning the investigation of EEO complaints to agents of the Office of Internal Affairs. Nothing in the wording of the provision's first sentence prevents the Agency from assigning, or deciding not to assign, Internal Affairs agents to conduct EEO investigations under any circumstances. Instead, "emergency situation" describes the circumstances in which an agent is obligated to provide the notifications required by the provision. That is, "emergency situation" defines the circumstances to which the provision applies. Accordingly, we find that Provision 23 does not directly interfere with management's right to assign work.

We also reject the Agency's contention that the provision directly interferes with its right to determine internal security practices. In our view, the Agency's assertion that the provision would require disclosures which would hinder its investigations reflects a misunderstanding of the provision. Provision 23 requires only that an agent inform an interviewee that the questioning will expand to matters beyond the scope of the EEO investigation and provide the employee with appropriate notices required by other provisions of the collective bargaining agreement. Contrary to the Agency's position, nothing in the provision's wording requires that the agent reveal anything more. Interpreted in this manner, we conclude that

Provision 23 does not require disclosures which would compromise investigations. Accordingly, the provision does not directly interfere with the Agency's right to determine its internal security practices under section 7106(a)(1). Compare American Federation of Government Employees, AFL-CIO, Local 1738 and Veterans Administration Medical Center, Salisbury, North Carolina, 27 FLRA 52, 54-56 (1987) (proposal requiring agency to notify union immediately of results of investigations involving unit employees held to directly interfere with management's right to determine internal security practices).

We note, in this regard, that proposals requiring management to inform employees of matters relating to their conditions of employment are negotiable when the proposals do not require disclosure of otherwise protected information. Department of Energy, 41 FLRA at 1248. Notices required by the parties' negotiated agreement unquestionably concern conditions of employment. See id. (provisions requiring notice to employees of their contractual rights to union representation during drug testing found to concern conditions of employment and held to be negotiable). Compare National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C., 44 FLRA 637, 664-65 (1992) (proposal requiring disclosure of classified information concerning conditions of employment to union representatives cleared for access to such information held not to interfere with agency's right to determine its internal security practices).

As the Agency has not explained how Provision 23 interferes with its right to discipline employees, we will not address that contention further. It is well established that parties bear the burden of creating a record upon which the Authority can make a negotiability determination. NFFE v. FLRA, 681 F.2d 886. A party failing to meet that burden acts at its peril. See, for example, FNS, Western Region, 42 FLRA at 976-77. Accordingly, Provision 23 is negotiable.

XXIII. Provision 24

Article 19, Section 10- If an ill or injured employee is sent to a medical facility for treatment, and a competent medical authority at the facility determines that the employee is unable to return to work, the employee shall be granted leave as requested. If the medical authority determines that the affected employee is able to return to work, the Employer will consider that recommendation in determining whether to return the employee to work.

[Only the underscored sentence is in dispute.11/]

A. Positions of the Parties

The Agency contends that Provision 24 is nonnegotiable because it conflicts with those portions of FPM chapter 630 which set forth conditions for granting sick leave, annual leave, administrative leave, and leave without pay. In the Agency's view, the provision conflicts with the FPM because it "mandatorily grants any type of leave and the duration of such leave at the whim of the employee[.]" Statement of Position at 34.

The Union states that Provision 24 "allows employees who have been determined to be unable to work to be granted leave as requested and directs the Agency to consider the medical authority's opinion in deciding whether to allow the employee to return to work." Petition for Review at 15.

B. Analysis and Conclusions

The disputed sentence of Provision 24 requires the Agency to grant leave "as requested" following a finding by a competent medical authority that an ill or injured employee is unable to return to work. In agreement with the Agency, and in the absence of any Union assertion to the contrary, we find that the provision, as plainly worded, would require the Agency to grant the type and amount of leave requested by an employee who is medically certified as being incapacitated for duty. Not every category of leave is available to cover periods of incapacity. See, for example, American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710, 721 (1986) (VAMC), ("the governing regulations do not contemplate . . . illness as justifiable grounds for granting administrative leave in lieu of . . . sick leave.") Furthermore, FPM chapter 630, subchapter 4-2.b requires agencies "to determine that the nature of the employee's illness was such as to incapacitate him for his job and that the other reasons for which sick leave is granted are true." Subchapter 4-3.a of FPM chapter 630 provides:

An employee seriously injured or ill may draw on his anticipated future sick leave accruals if the disability surpasses his current accumulation. A maximum of 30 days' sick leave may be advanced under these circumstances.

Provision 24, however, would require the Agency to grant requested leave even if such grant was not authorized by the FPM. FPM chapter 630 is a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. See VAMC, 22 FLRA at 720. Consequently, the first sentence of Provision 24 is inconsistent with a Government-wide regulation and is nonnegotiable under section 7117(a)(1).

The Agency argues only that the first sentence of Provision 24 is nonnegotiable. As the Agency presents no arguments concerning the second sentence, we find that it is not in dispute and will order the Agency to rescind its disapproval of that sentence. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 817 (1991) (PTO) (Decision and Order on Remand).

XXIV. Provisions 25, 26, and 27

Provision 25

Article 20, Section 1B(2)- The Employer shall exercise the authorities [the right to assign work, reassign and detail employees; to assign work and to determine the personnel by which agency operations shall be conducted; and to determine the numbers, types and grades of employees or positions assigned to any organization subdivision, work project, or tour of duty] set forth above: in a fair and objective manner without discrimination or personal favoritism.⁽¹¹⁾ [Footnote added.]

Provision 26

Article 21, Section 7- The scheduling of employees shall be accomplished in a fair and objective manner.

Provision 27

Article 22, Section 3B- Overtime assignments shall be made and rotated on a fair and objective basis.

A. Positions of the Parties

The Agency asserts that Provisions 25 and 26 are nonnegotiable because they "subject[] the exercise of . . . management rights to substantive contractual restrictions . . . ." Statement of Position at 35. The Agency argues that Provision 27 is nonnegotiable because "[c]onceptually, the assignment of overtime is indistinguishable from the assignment of work" under section 7106(a)(2)(B). Id. at 38. The Agency also asserts that Provision 27 "imposes a substantive requirement on this assignment . . . ." Id.

The Union states that Provision 25 "obligates the Agency to exercise its statutory rights to manage the workforce . . . in a fair and objective manner without discrimination or favoritism." Petition for Review at 16. Provision 26, according to the Union, "requires employees to be scheduled in a fair and objective manner," and Provision 27 "ensures fairness and objectivity in the assignment of overtime." Id. at 17-18.

B. Analysis and Conclusions

Provisions 25, 26, and 27 obligate the Agency to exercise management rights enumerated in section 7106(a)(2) and (b)(1) of the Statute in a fair and objective manner. Provisions 26 and 27 refer, respectively, to scheduling employees and assigning overtime. The Agency's objection to these provisions is limited to the requirement that management rights be exercised in a fair and objective manner. Accordingly, our examination of these provisions concerns only that requirement.

As we discussed in our analysis of Provision 9, the requirement that management exercise its rights under the Statute in a "fair and objective" manner is not substantively different from the requirement that such a right be exercised "equitably." In VAMC, Department of Memorial Affairs, we concluded that because

terms such as 'equitable' and 'equitably,' when used in proposals that govern the exercise of a management right, constitute substantive restrictions on the exercise of that right, we will no longer follow cases . . . hold[ing] that the use of the terms 'equitable' or 'equitably' do not constitute a substantive limitation.

40 FLRA at 684. Consistent with VAMC, Department of Memorial Affairs, we conclude that the obligation to exercise management rights fairly and objectively constitutes a substantive restriction governing the exercise of management's rights. Id. at 683. As such, Provisions 25, 26, and 27 directly interfere with the exercise of management rights. As the Union does not assert that these provisions are appropriate arrangements under section 7106(b)(3), they are nonnegotiable.

In reaching this conclusion, we note that Provisions 25, 26, and 27 are distinguishable from those proposals which apply a fair and objective standard to the procedures to be followed by management in exercising its rights. Such proposals do not directly interfere with the exercise of management's rights and are negotiable procedures under section 7106(b)(2) of the Statute.

More specifically, in National Treasury Employees Union and U.S. Department of the Treasury, Financial Management Service, 45 FLRA 696, 705-10 (1992), petition for review filed sub nom. United States Department of the Treasury, Financial Management Service v. FLRA, No. 92-1441 (D.C. Cir. Sept. 18, 1992), we reviewed a provision which provided that the "selection technique" employed by a selecting official "will be uniformly applied in a fair and objective manner to all . . . candidates referred to him/her (e.g., if one candidate is interviewed, all will be interviewed)." Id. at 705. We found that the provision was a negotiable procedure under section 7106(b)(2), applicable to management's right to select employees for positions. In so finding, we noted particularly that the provision did not "prescribe criteria by which the decision on selection must be made." Id. at 708. By contrast, Provisions 25, 26, and 27 require that management apply "fair and objective" criteria directly to the exercise of management rights rather than to the procedures leading to the exercise of those rights. Accordingly, as we concluded above, these provisions directly interfere with the exercise of management rights.

XXV. Provision 28

Article 22, Section 4A- Upon reasonable advance request, and subject to supervisory approval, qualified employees shall be allowed to exchange overtime assignments.

Section 4B- Requests under Subsection A above shall normally be approved if approval of the exchanges will not:

(1) serve to impair the work flow of the Customs Service;

(2) adversely impact upon the numbers, types, and grades of employees or positions assigned to the overtime tour of duty;

(3) adversely impact upon the administration of limits placed upon the permissible amount of overtime for employees.

Section 4C- The approval of such exchanges shall be for the duration of the current assignment only.

A. Positions of the Parties

The Agency contends that Provision 28 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency asserts that the provision requires approval of requests to exchange overtime assignments unless the exchange will serve to "'impair the work flow.'" Statement of Position at 39. According to the Agency, that standard impermissibly restricts its authority to assign work.

The Union contends that Provision 28 "sets forth a procedure for employees to request to exchange overtime assignments." Petition for Review at 18.

B. Analysis and Conclusions

Management's right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to determine the particular qualifications and skills needed to perform the work and the right to judge whether particular employees have the requisite qualifications to do the work. However, when management has determined that two or more employees are equally qualified to undertake an assignment, the selection of any of those employees is consistent with management's right to assign work. More particularly, a proposal prescribing how management will select from among a group of qualified employees is negotiable. See, for example, National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 44 FLRA 738, 742 (1992).

Provision 28 applies to requests from employees to exchange overtime assignments with other "qualified employees." Under the provision, such requests are "subject to supervisory approval." As the provision applies only to the selection for overtime work from among employees whom management has determined are qualified and expressly requires supervisory approval, we conclude that Provision 28 does not interfere with management's right to assign work. Accordingly, we find that Provision 28 is negotiable.

In finding Provision 28 negotiable, we reject the Agency's contention that the provision also directly interferes with its right to assign work by requiring approval of exchanges unless they will impair the work flow. As the requirement to select for overtime work from among employees whom management has determined are qualified does not directly interfere with management's right to assign work, we find that the exception to normal approval of employee requests also does not directly interfere.

XXVI. Provision 29

Article 23, Section 9A- When the Employer makes lodging available for an employee on official travel, the employee will have the option of remaining in the employer-provided lodging or of securing other lodging.

Article 23, Section 9B- If the employee elects to secure his own lodging, the employer will reimburse the employee for the cost of the lodging provided by the employer or the cost of the lodging secured by the employee, whichever is the lesser.

Article 23, Section 9C- Where lodging is provided by the Employer, and remaining at the place of lodging is integrally related to, and necessary for, the accomplishment of the purposes for the official travel, the employee may not exercise the option provided in Subsection B above.

A. Positions of the Parties

The Agency asserts that Provision 29 is inconsistent with the requirement of the Treasury, Postal Service, and General Government Appropriations Act of 1991, Pub. L. No. 101-509 (the Appropriations Act),⁽¹²⁾ that trainees at the FLETC [Federal Law Enforcement Training Center], a component of the Agency, must "stay at employer-provided lodging as available and in accordance with Center policy." Statement of Position at 40.

The Union contends that Provision 29 "describes the procedure for employees to exercise the option of remaining in employer-provided travel [sic] or securing other lodging." Petition for Review at 19.

B. Analysis and Conclusions

Section 9A of Provision 29 gives employees on official travel the option of either staying in Government-provided lodgings or securing lodging other than that provided by the Agency. Section 9B describes the Agency's obligation when an employee decides to obtain other lodging. Section 9C of Provision 29 describes the circumstances in which employees may not select their own lodging. The Agency's sole argument is that Provision 29 is inconsistent with the Appropriations Act because it gives employees who attend FLETC training the option of staying in lodging other than that provided by the Agency.

Under the Appropriations Act, FLETC trainees must reside in "on-Center or Center-provided housing, insofar as available and in accordance with Center policy[.]" The Agency does not expressly state that FLETC policy requires that trainees reside "on-Center or [in] Center-provided housing[.]" However, the Agency's position is based on the existence of such a policy. Accordingly, in the absence of any assertion to the contrary, we will assume that such a policy is in effect. Under section 9C, "the employee may not exercise the option provided in Subsection B" when employer-provided lodging is "integrally related to, and necessary for, the accomplishment of the purposes for the official travel[.]" In other words, an employee is precluded from selecting his or her own quarters under the circumstances described in section 9C. That is, where official travel is for the purpose of training at FLETC, and the Center's policy requires residence in quarters it provides, we find that Center-provided lodging is integrally related to, and necessary for, the accomplishment of the purposes for the travel. Therefore, section 9C recognizes the Center's statutory authority to require that FLETC trainees reside in housing provided by the Center. Consequently, Provision 29 is not inconsistent with the Appropriations Act. As the Agency has asserted no other basis on which to find Provision 29 nonnegotiable, and none is apparent to us, the provision is negotiable.

XXVII. Provision 30

Article 24, Section 5- The U.S. Customs Service will provide legal support, to the extent authorized by [F]ederal law, for Customs officers involved in civil or criminal actions as a result of performing duties under this policy, provided that the Officer acted in good faith and with a reasonable belief in the lawfulness of his actions.

A.Positions of the Parties

The Agency asserts that Provision 30 is nonnegotiable because it is inconsistent with 28 U.S.C. § 2679(c).⁽¹³⁾ The Agency also asserts that its responsibilities in connection with law suits brought against Federal employees are limited, under 28 C.F.R. Part 15, to accepting papers served on the employee, informing the Attorney General of the commencement of the legal action or proceeding, and furnishing the Attorney General with copies of all documents and pleadings in the suit.⁽¹⁴⁾ The Agency contends that its obligations do not "rise to the level of legal support." Statement of Position at 41. The Agency maintains that, by requiring an agency other than the Department of Justice to provide legal support to an employee, the proposal is inconsistent with law. The Agency asserts, in this regard, that the phrase "to the extent authorized by law" does not make this provision negotiable.

The Union states that Provision 30 "records the [A]gency's commitment, to the extent authorized by law, to provide legal support for an employee involved in civil or criminal actions resulting from the performance of his duties." Petition for Review at 19.

B. Analysis and Conclusions

We reject the Agency's argument that Provision 30 conflicts with 28 U.S.C. § 2679(c).

Initially, we note that 28 U.S.C. § 2679(c) concerns only civil actions. The Agency has not cited any law, and we are aware of none, which would preclude it from providing legal support to employees involved in a criminal action as a result of their performance of duties. Moreover, 28 U.S.C. § 2679(c) provides that the Attorney General "shall defend" certain civil actions or proceedings brought against Federal employees. The provision requires only that the Agency furnish "legal support" for unit employees "to the extent authorized by [F]ederal law," and the Union asserts that Provision 30 restates the Agency's commitment to assist employees "to the extent authorized by law[.]" Petition for Review at 19. That is, based on the provision's wording and the Union's explanation, the Agency is not required to provide any legal assistance which, under applicable law, is the responsibility of another agency. As such, Provision 30 is not inconsistent with 28 U.S.C. § 2679(c) or 28 C.F.R., Part 15. See, for example, Bureau of Engraving, 33 FLRA at 736 (proposal's reference to grants of leave "to the maximum extent permitted by statute and regulation" supported a finding that it was negotiable). As the Agency has not asserted any other grounds for finding Provision 30 nonnegotiable, and none are apparent to us, we conclude that the provision is negotiable.

XXVIII. Provision 31

Article 24, Section 8- The following procedures shall apply in the designation of Firearms Officers:

(a) For a period of at least ten (10) days, the employer will post a notice indicating that a Firearms Officer will be designated. [T]he notice will list the duties of the Firearms Officer as described in appropriate regulations.

(b) Within ten (10) days of the end of the posting period, any employee who has an interest in performing the collateral duties of the Firearms Officer and who believes he is qualified to perform such duties may volunteer for designation as Firearms Officer. [T]he Employee may submit a statement indicating his qualifications for the duties. The Employer retains the right to designate the Firearms Officer from among qualified employees.

(c) The Firearms Officer will be designated in a fair and objective manner.

(d) At those locations where there is a Range Officer who is a Customs employee, designation will be made in the manner described above.

(e) Firearms Officers are required to undergo Firearms Instructor training which will be arranged by the U.S. Customs Service Academy or the National Firearms Program staff. Firearms Instructors will be recertified through in-service training at least every five (5) years.

A. Positions of the Parties

The Agency argues that Provision 31 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. According to the Agency, the provision's requirement that a Firearms Officer be designated in a fair and equitable manner "places a substantive, contractual requirement on the exercise of the management right to assign work." Statement of Position at 42. The Agency also asserts that the term "fair and objective" improperly subjects its decisions concerning the assignment of work to arbitral review.

The Union states that Provision 31 "describes the procedure to select Firearms Officers." Petition for Review at 20.

B. Analysis and Conclusions

At the outset, we reject the Agency's argument that Provision 31 would improperly subject the exercise of a management right to arbitral review. This argument is not a basis for finding a provision nonnegotiable. Health Care Financing Administration, 39 FLRA at 1200. The Agency's only other argument concerning Provision 31 is that the requirement in section (c) to designate the Firearms Officer in "a fair and objective manner" interferes with its right to assign work.

As discussed in connection with Provision 9, provisions requiring management to exercise its rights in a fair and objective manner directly interfere with those rights. Accordingly, by requiring that the Firearms Officer be assigned in a fair and objective manner, section (c) of Provision 31 directly interferes with management's exercise of its right to assign work. See VAMC, Department of Memorial Affairs, 40 FLRA at 683 (part of provision requiring that work be distributed equitably among employees in job classifications held to directly interfere with right to assign work). As section (c) directly interferes with management's exercise of the right to assign work, it does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. Army Information Systems Command, 42 FLRA at 1127. In the absence of a Union claim that section (c) is intended as an appropriate arrangement, it is nonnegotiable. As the Agency advances no additional arguments concerning Provision 31, we conclude that the remainder of the provision is not in dispute and will order the Agency to rescind its disapproval of it.

XXIX. Provision 32

Article 27, Section 2A- During the probationary period of the employee, the supervisor will:

(1) closely observe the employee's conduct, general character traits, and performance;

(2) provide guidance in regard to work related problems. When it appears that the employee's performance or conduct may be lacking, the supervisor will take the following actions as necessary:

(a) explain what is required of the employee in the position;

(b) identify areas where the employee needs improvement; and

(c) suggest ways or means for the employee to improve his performance or conduct;

(3) evaluate the employee's potentialities and attempt to determine whether the employee is suited for continued employment with the Employer.

Section 2B- Employees will be entitled to counseling by the supervisor(s) upon request. The counseling session will include those areas in which the employee has indicated he would like further guidance or knowledge.

A.Positions of the Parties

The Agency argues that Provision 32 is inconsistent with FPM chapter 315, subchapter 8-3.a(1)-(3) because it requires that management take certain actions concerning probationers.⁽¹⁵⁾ The Agency also argues that because the requirements relating to the probationary period in the provision are not imposed by OPM, the President, or Congress, they are inconsistent with law and regulation and, therefore, nonnegotiable. Finally, the Agency notes that Provision 32 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because it assigns specific functions to the supervisors of probationary employees.

The Union states that Provision 32 provides for "guidance and counseling for probationary employees." Petition for Review at 21.

B.Analysis and Conclusions

FPM chapter 315, subchapter 8-5.a concerns agency actions during the probationary period and describes the supervisor's role in guiding and evaluating a probationer. However, subchapter 8-5 does not limit the evaluation process and does not otherwise bar the supervisor from providing guidance and counsel to a probationary employee. Rather, subchapter 8-5.a states that supervisors should "communicate expectations for performance and conduct, . . . give periodic feedback on performance and conduct, and provide on-the-job training and counseling." OPM notes, in section 5.a, that the prescribed supervisory actions will "make the supervisor more aware of the probationer's capabilities and thus better able to evaluate the employee's overall fitness for Government service." In our view, Provision 32 is fully consistent with the supervisory evaluation and assistance to probationary employees, described in subchapter 8-5.a, as necessary for an informed evaluation of the probationer's potential for continued Federal employment.

We also find that Provision 32 does not restrict in any manner the supervisor's judgment concerning whether a probationary employee should be retained. In fact, the provision specifically acknowledges that the supervisor will "evaluate the employee's potentialities and attempt to determine whether the employee is suited for continued employment . . . ." Sharing information with employees about their work during the probationary period, as provided in Provision 32, neither diminishes the Agency's ability to judge the probationer's potential for employment nor restricts the Agency's authority to decide to terminate an employee during the probationary period.

Further, with respect to the latter point, Provision 32 does not afford probationary employees procedural protections connected with termination. In particular, sections 2A and B of the provision do not apply to the Agency's termination of probationers and do not require cancellation of terminations if management fails to comply with the sections. In these circumstances, we find no basis for concluding that Provision 32 is nonnegotiable because it affords probationary employees any procedural protections beyond those provided in OPM regulations once management has determined that they are unsuited for continued Government employment. Compare National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois, 39 FLRA 848, 852 (1991) (FDIC) (provision requiring management to inform a probationer in writing of the reasons for removal, provide a meeting, and forward with its recommendation all materials presented by the probationer found to constitute procedural protections beyond those provided by OPM).

In reaching this conclusion, we reject the Agency's position that any negotiations over matters concerning the probationary period are inconsistent with law and regulations. Nothing in FPM chapter 315, subchapter 8-3 precludes bargaining to require that management undertake the actions suggested in that subchapter. In National Treasury Employees Union and Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 40 FLRA 849, 861-62 (1991) (Chief Counsel, IRS, II), enforced in part and remanded in part as to other matters sub nom. United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F 2d 1068 (D.C. Cir. 1992), we determined that bargaining over all aspects of the probationary period was not foreclosed by the holding in U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (INS v. FLRA). We found that the decision in INS v. FLRA concerned termination of a probationer and not the probationary period in general. Chief Counsel, IRS, II, 40 FLRA at 862. As the Agency has advanced no persuasive arguments to the contrary, we decline to reexamine our conclusion that law and regulation do not preclude bargaining over all matters concerning the probationary period. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 343-4 (1992) (BATF), petition for review filed sub nom. U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, No. 92-1380 (D.C. Cir. Aug. 21, 1992).

The Agency also argues that Provision 32 interferes with management's right to assign work because it assigns work to an identified management official, specifically, the supervisor of a probationary employee. Provision 32, however, identifies this official only as "the supervisor." Accordingly, we find that the provision assigns responsibilities to an individual within a probationer's supervisory chain, who will be identified by management. Moreover, we note the Union's assertion that the provision "provides guidance and counseling for probationary employees." Petition for Review at 21. In our view, the Union's assertion demonstrates that the provision is not intended to assign work to a particular individual but, rather, is intended to establish certain obligations owed to probationers by management. Compare Provision 18, section 2A (requiring that "immediate supervisor" make acceptable level of competence determination). As such, the provision preserves management's discretion to select the individual who will perform certain functions with respect to a probationary employee.

As Provision 32 is consistent with applicable law and regulation and does not interfere with the Agency's right to assign work, it is negotiable.

XXX. Provision 33

Article 27, Section 3A- The supervisor of each employee serving a probationary period will, no earlier than the beginning of the ninth month nor later than the end of the tenth (10) month of the probationary period, submit through supervisory channels a signed statement certifying either that the employee's performance, conduct, and general traits of character have been found satisfactory or that they have been found unsatisfactory. This certification will normally by [sic] on CF-198 or equivalent written form. The employee may comment in writing within two (2) days of receipt thereof.

Section 3B- The certification referred to in Subsection A above will contain a definitive recommendation whether the employee should be retained beyond the probationary period.

[Only the underscored sentence is in dispute.]

A. Positions of the Parties

The Agency objects only to the last sentence of section 3A in Provision 33, which permits a probationary employee to comment in writing within 2 days of receiving the supervisor's certification concerning whether the employee's performance, conduct, and general traits of character warrant retention or termination. The Agency contends that this sentence is nonnegotiable for two reasons. First, the Agency asserts that the obligation implicit in the sentence to share certifications concerning retention is inconsistent with OPM regulations because FPM chapter 315, subchapter 8-3.a(5) does not require management to advise probationary employees of supervisory recommendations.⁽¹⁶⁾ Second, the Agency argues that giving probationary employees the opportunity to reply to the supervisor's recommendations exceeds the due process requirements established in the governing regulations.

The Union states that Provision 33 "record[s] the Agency's process for evaluating a probationary employee prior to the completion of the probationary period." Petition for Review at 21.

B. Analysis and Conclusions

As the Agency objects only to the last sentence of section 3A, our consideration is limited to that sentence. We find that, by giving probationary employees the opportunity to respond to supervisory recommendations, the last sentence of section 3A affords probationary employees procedural protections beyond those established by OPM. In FDIC, 39 FLRA at 853, Provision 1 required management to advise probationers at the recommendation stage that their termination is contemplated and to afford them an opportunity to respond to the "potential" termination. Noting that the procedures in FPM chapter 315 "make no provision for an employee to proffer a defense or explanation during the process by which the decision to terminate him/her is made," we determined that Provision 1 established procedural protections beyond those provided by OPM. Id. But see BATF, 45 FLRA at 343-44 (holding provisions, authorizing official time, travel, and per diem to probationer and union official to respond to probationer's termination because of preappointment conduct, to be negotiable because FPM authorizes response to such terminations). Consequently, for the reasons stated more fully in FDIC, the last sentence of section 3A establishes procedural protections beyond those provided by OPM.

As the last sentence of section 3A of Provision 33 establishes procedural protections for probationary employees which exceed those required by the FPM, the sentence is inconsistent with applicable regulation and nonnegotiable under section 7117(a)(1) of the Statute.

As the Agency advances no additional arguments concerning the remainder of Provision 33, we conclude that it is not in dispute and will order the Agency to rescind its disapproval of it.

XXXI. Provision 34

Article 27, Section 5- When separation of a probationary employee is based on deficiencies in performance or conduct after entrance on duty, the following procedures shall apply:

(a) the probationer will be notified in writing fifteen (15) days in advance whe[n] the probationer is being terminated and the effective date of the action except when less than fifteen (15) days remain in the probationary period or in emergency situations.

(b) the notice of why the probationer is being terminated shall set forth the Employer's conclusions on the inadequacies of the employee's performance or conduct and of the specific basis upon which he can appeal to the Merit [S]ystems Protection [B]oard (MSPB). The notice will contain enough information to enable the employee to respond intelligently.

(c) The probationary employee shall have no formal right to reply or appeal to the notice of termination. However, at any stage in the proceedings under this Section, the employee may request an informal meeting with a deciding official or designe[e] to discuss his deficiencies and the termination action. The probationary employee may be represent[ed] at such meeting by the Union and will be provided, upon request, copies or access to any documents or files which evidence the employee's deficient conduct or performance.

A. Positions of the Parties

The Agency asserts that Provision 34 is nonnegotiable because it is inconsistent with 5 U.S.C. § 332,⁽¹⁷⁾ 5 C.F.R.§ 315.804, and FPM chapter 315, subchapter 8-4.a(3).⁽¹⁸⁾ The Agency claims, in this regard, that the provision establishes procedural safeguards which exceed those required by the regulation.

The Union states that the provision "permits probationary employees who are being terminated to be informed of the reasons for the termination and request informal meetings to discuss his deficiencies." Petition for Review at 22.

B. Analysis and Conclusions

Provision 34 requires the Agency to undertake certain actions prior to terminating a probationary employee for conduct or performance on the job. In particular, the Agency is required to provide: (1) 15 days' advance notice of the termination in most circumstances, (2) sufficient information concerning the grounds for termination so that the probationary employee can respond intelligently, and (3) an opportunity for the employee, at his or her option, to meet informally to discuss the deficiencies and the termination action. In imposing these requirements, Provision 34 establishes procedural protections for probationary employees which exceed those authorized by OPM. See Chief Counsel, IRS, II, 40 FLRA at 864. Therefore, consistent with Chief Counsel, IRS, II, and for the reasons stated therein, Provision 34 is nonnegotiable under section 7117(a)(1) of the Statute.

XXXII. Provisions 35 and 38

Provision 35

Article 28, Section 4- The parties recognize that disciplinary actions shall generally be progressive in nature if they are to correct the conduct of an offending employee. The Employer further agrees to follow a policy in which the remedy relates fairly to the offense.

Provision 38

Article 30, Section 2- Except for reductions in grade or pay based upon a classification action or decision and furloughs of thirty (30) days or less, the parties recognize that adverse actions taken for disciplinary reasons shall generally be progressive in nature if they are to correct the conduct of an offending employee. The employer further agrees to follow a policy in which the remedy relates fairly to the offense.

A. Positions of the Parties

The Agency asserts that Provisions 35 and 38 are nonnegotiable because they put "a contractual limitation" on the Agency's right to discipline employees under section 7106(a)(2) of the Statute. Statement of Position at 50-51. In the Agency's view, the provisions also interfere with its right to discipline by subjecting the Agency's decisions to arbitral review based on a "substantive standard[.]" Id. at 50.

The Union contends that Provisions 35 and 38 "reflects the Agency's decision to employ progressive discipline and a policy where the remedy fairly relates to the offense." Petition for Review at 22.

B. Analysis and Conclusions

As previously noted, an agency's argument that an arbitrator's judgment may be substituted for its own is not a basis for precluding negotiation over a provision. See, for example, Health Care Financing Administration, 39 FLRA at 1200. Accordingly, we reject the Agency's argument regarding arbitral review.

Provision 35 requires that disciplinary actions "shall generally be progressive." With exceptions not relevant here, Provision 38 requires that adverse actions taken for disciplinary reasons be progressive. We find that these provisions directly interfere with management's right under section 7106(a)(2)(A) of the Statute to discipline employees.

In American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 198 (1991) (Merchant Marine Academy) we found that a provision which, among other things, required the agency to administer discipline in a progressive and consistent manner directly interfered with management's right to remove or take other disciplinary action under section 7106(a)(2)(A). We found that the provision restricted the agency's right to choose a specific penalty to impose in disciplinary actions.

Provisions 35 and 38 similarly limit the Agency's right to choose disciplinary penalties. Therefore, consistent with our holding in Merchant Marine Academy, we conclude that Provisions 35 and 38 directly interfere with management's rights to remove or take other disciplinary action under section 7106(a)(2)(A) of the Statute. In the absence of a Union assertion that Provisions 35 and 38 constitute appropriate arrangements under section 7106(b)(3) of the Statute, we conclude that they are nonnegotiable.

XXXIII. Provision 41

Article 33, Section 10A- When the Employer determines to detail or temporarily promote a union officer or steward to a supervisory position, pursuant to its 7106 rights, and workload demands leave no other reasonable alternatives, the union officer or steward must relinquish all union responsibilities for the duration of the detail or the temporary promotion.

Article 33, Section 10B- [W]hen the employer determines that a detail or temporary promotion must be made to fill a supervisory position and there are sufficient candidates who are qualified, the union officer or steward will be considered only if he volunteers. If the union office[r] or steward is selected, he will be required to relinquish all union responsibilities for the duration of the detail and/or temporary promotion.

Article 33, Section 10C- [T]his Section shall not prohibit a Union officer or steward from serving as an acting supervisor for brief periods of time so long as no conflict of interest is created.

A. Positions of the Parties

The Agency claims that the phrase "'no reasonable alternative[s]' operates as a substantive term" which restricts the Agency's right to choose an employee for promotion or detail and, therefore, directly interferes with management's rights under section 7106(a)(2) of the Statute. Statement of Position at 55.

The Union states that Provision 41 "sets forth procedures to be used when [U]nion officials are considered for detail or temporary promotion into a supervisory position." Petition for Review at 24.

B. Analysis and Conclusions

It is unclear from the wording of section 10A of Provision 41 whether the phrase "workload demands leave no other reasonable alternatives" applies to the Agency's determination to detail or temporarily promote a Union official or to a Union official's obligation to relinquish Union responsibilities in the circumstances described. The Agency argues that the phrase applies to detailing or temporarily promoting a Union official. Under the Agency's construction, section 10A would prevent the Agency from detailing or temporarily promoting a Union officer or steward to a supervisory position unless "workload demands leave no other reasonable alternatives[.]" As discussed in more detail in connection with Provisions 5, 6, and 12, this standard imposes a substantive restriction on the Agency's discretion to make work assignments. Accordingly, read in the manner asserted by the Agency, section 10A of Provision 41 would directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, VAMC, Department of Memorial Affairs, 40 FLRA at 683-84.

On the other hand, if section 10A describes the circumstances in which a Union official or steward is obliged temporarily to surrender his or her Union responsibilities, the section has no impact on the Agency's right to assign work and, therefore would be negotiable. The record provides no basis for adopting either interpretation of the section. As we noted in connection with Provision 23, the parties have the burden of providing a record on which the Authority can base a negotiability determination, and the party failing to do so acts at its peril. Consequently, in the absence of any definitive explanation of how section 10A is intended to operate, we will dismiss the petition for review as to that section.

If there are sufficient qualified candidates for a detail or temporary promotion to a supervisory position, section 10B of Provision 41 would prevent the Agency from detailing or temporarily promoting a Union officer or steward unless the Union official volunteers. Consequently, management's right to assign work would, in some circumstances, be subject to the control of a Union official's decision on whether to volunteer. Proposals which preclude an agency from assigning duties to employees who are also union officials unless the officials voluntarily relinquish their union responsibilities directly interfere with management's right to assign work. See, for example, National Treasury Employees Union and Department of the Treasury and U.S. Customs Service, 31 FLRA 181, 184-85 (1988), enforced as to other matters sub nom. Department of the Treasury, United States Customs Service v. FLRA, 873 F.2d 1473 (D.C. Cir. 1989). Accordingly, we find that section 10B of Provision 41 directly interferes with management's right to assign work under section 7106(a)(2)(B).

As Section 10B of Provision 41 directly interferes with a management right, we find that section 10B does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. See Army Information Systems Command, 42 FLRA at 1126-27. In the absence of a Union assertion that the section is intended as appropriate arrangement under section 7106(b)(3), we conclude that Section 10B is nonnegotiable.

Based on its plain wording, we are unable to ascertain the objective of Section 10C of Provision 41. The Agency makes no argument specifically directed at this section. However, it appears that the Agency views section 10C as directly interfering with its rights under section 7106(a)(2) of the Statute. On the other hand, the Union describes the Provision as a procedure for detailing or temporarily promoting Union officials to supervisory positions.

The section's wording equally supports either interpretation. It is reasonable to construe the section as preventing management from selecting a Union official to act as a supervisor for a brief period if a conflict of interest will result. It is also reasonable to interpret the section as prescribing when an officer or steward may retain Union office while briefly acting as a supervisor. Accordingly, we find that section 10C is not sufficiently specific to provide a basis for determining its negotiability. The parties bear the burden of creating a record on which the Authority can make a negotiability determination. On the record before us, we are unable to ascertain the section's impact on management's rights. Consequently, the petition for review of section 10C is dismissed. See, for example, id., 42 FLRA at 1123.

XXXIV. Provisions 42, 43, and 44

Provision 42

Appendix E, Section 1- Beginning with the appraisal cycle ending May, 1991, employees who receive either an "Outstanding" or an "Excellent" rating on their annual summary rating will be granted monetary awards. [T]he employer retains the discretion to decide whether employees rated at other than these two levels will receive performance awards. Should the Employer decide to grant a monetary performance award to employees at the "Fully Successful" level, the parties will negotiate the formula for distribution of such awards pursuant to Section 4.

Provision 43

Appendix E, Section 3- An employee will not receive a monetary award pursuant to this Section if he or she has received a Quality Step Increase (QSI) on the rating for the appraisal year for which award determinations are being made.

Provision 44

Appendix E, Section 4A- For a one year test period, the parties will met [sic] at the Regional level, or at a lower level should the Regional management choose, to negotiate the formula for the distribution of amounts among awards. They are also free to negotiate over any exclusions from this program. [E]mployees within each award pool will be treated fairly and objectively in the distribution of award amounts. These negotiations are to be completed no later than 45 days after the effective date of this agreement.

Appendix E, Section 4B- At the conclusion of this test, either party may choose to renegotiate the formula for distribution of these awards.

A. Positions of the Parties

The Agency contends that Provision 42 requires management "to grant a performance award based on a particular rating" and is, therefore, inconsistent with 5 C.F.R. § 430.504(d) and nonnegotiable.⁽¹⁹⁾ Statement of Position at 58. Provision 43, the Agency argues, "dictate[s] circumstances under which an employee could not receive an award" and, therefore, is also inconsistent with 5 C.F.R. § 430.504(d). Id.

Regarding Provision 44, the Agency's sole argument is that the provision is inconsistent with its discretion under 5 C.F.R. § 430.504(d) to approve or disapprove the amount of the award. Alternatively, the Agency contends that, because "negotiation of a formula for distribution of awards will have the effect of dictating the [A]gency's budget for performance awards," the provision directly interferes with management's right to determine its budget under section 7106(a)(1) of the Statute. Id.

The Union states that Provisions 42, 43, and 44 are components of "a procedure for the parties to bargain over the implementation of a monetary performance award system." Petition for Review at 25.

B. Analysis and Conclusions

1. Provisions 42 and 43

In National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 43 FLRA 1442, 1460-65 (1992) (Treasury), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 92-1161 (D.C. Cir. Apr. 10, 1992), we addressed a proposal mandating the grant of certain performance awards. We held, as relevant here, that 5 C.F.R. § 430.504(d) requires the review and approval of decisions to grant performance awards.⁽²⁰⁾ We also held that section 430.504(d) preserves an agency's right to disapprove performance awards for reasons other than budgetary limitations, including efforts to ensure conformity with an agency's overall performance awards program. We concluded that the proposal, which required the granting of certain awards subject only "to availability of funds in the [agency's] awards budget[,]" was inconsistent with 5 C.F.R. § 430.504(d) and, as that regulation is Government-wide within the meaning of section 7117 of the Statute, the proposal was nonnegotiable. Id. at 1461.

Provision 42 mandates that all employees who are rated outstanding or excellent receive monetary awards unless they receive QSIs, and Provision 43 prevents the Agency from approving a monetary award in certain circumstances. Accordingly, consistent with our decision in Treasury, we conclude that these provisions are inconsistent with 5 C.F.R. § 430.504(d) and are nonnegotiable under section 7117(a)(1) of the Statute.

2. Provision 44

Provision 44 requires the parties, as a test, to bargain over "the formula for the distribution of amounts among awards." We find nothing in the provision's wording indicating an intent that the negotiated formula would nullify the review requirements of 5 C.F.R § 430.504(d). For example, under Provision 44, the parties could agree on a formula to be used by the recommending official in suggesting the amounts of particular awards and those amounts would be subject to higher level scrutiny. Moreover, the results of the required bargaining would be subject to review under the Statute for consistency with governing law, rule, and regulation. See, for example, Washington Area Metal Trades Council and U.S. Department of the Navy, Naval Research Laboratory, Washington, D.C., 56 Fed. Reg. at 20333. 44 FLRA 733, 737 (1992) (proposal granting a percent of salary as an award for particular performance ratings held inconsistent with 5 C.F.R. § 430.504(d) and nonnegotiable). Accordingly, we reject the Agency's arguments that Provision 44 is inconsistent with 5 C.F.R. § 430.504(d) and directly interferes with its right to determine its budget under section 7106(a)(1) of the Statute. As the Agency advances no other arguments for finding the provision to be nonnegotiable, we find that Provision 44 is negotiable.

XXXV. Proposals 2 and 3

Article 25, Uniforms and Personal Appearance

Proposal 2- The employer will pay for employees' reasonable alteration costs to their uniform [sic] due to initial fitting, refitting after a period of wear or damage up to the maximum allowed by law.

Proposal 3- For those employees required to wear a uniform as part of their official position, the employer will reimburse employees' reasonable maintenance costs', e.g. for cleaning, pressing and repair, up to the maximum allowed by law or it will provide for these services through the employer's facilities and at no cost to the employee.

A.Positions of the Parties

The Agency asserts that Proposals 2 and 3 "concern a matter which is excluded from those 'conditions of employment' over which an agency can be required to bargain under section 7103(a)(14)(C) of the Statute." Supplemental Statement of Position at 2. According to the Agency, 5 U.S.C. § 5901 "deals comprehensively with the payment of a uniform allowance by an agency for the purchase and maintenance of a required uniform[.]"⁽²¹⁾ Id. at 1.

The Union states that Proposal 2 "would allow employees to have certain costs of altering their uniforms paid by the employer to the maximum allowed by law." Petition for Review at 26. The Union states that Proposal 3 "would allow employees to have certain costs of maintaining their uniforms paid or provided by the employer." Id. at 27.

B. Analysis and Conclusions

Conditions of employment, over which an agency is obligated to bargain, are defined in section 7103(a)(14) of the Statute as personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions. Matters which are specifically provided for by Federal statute are excluded from the definition of conditions of employment by section 7103(a)(14)(C) of the Statute. See, for example, National Association of Government Employees and U.S. Department of Veterans Affairs, Washington, D.C., 43 FLRA 414, 416-17 (1991) (VA), petition for review filed sub nom. United States Department of Veterans Affairs v. FLRA, No. 92-1111 (D.C. Cir. Mar. 16, 1992).

In Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682, 684 (1987), the Authority reviewed the legislative history of chapter 59, subchapter I of title 5 of the United States Code, particularly 5 U.S.C. § 5901, and determined that the legislation "deals comprehensively with the payment of a uniform allowance by an agency for the maintenance of the uniform which the agency requires employees to wear." That is, the Authority determined that the legislative scheme encompassed both the purchase and upkeep of the uniforms.

See also Federal Employees Uniform Allowance Act of 1954,Pub. L. No. 83-763, 68 Stat. 1114 (1954) and S. Rep. No. 1992, 83rd Cong., 2d Sess., reprinted in 1954 U.S.C.C.A.N. 3816, 3826.

Proposals 2 and 3 would require the Agency to pay employees' reasonable uniform alteration and maintenance costs. The alterations and maintenance required in Proposals 2 and 3 are clearly part of the upkeep of employees' uniforms. Accordingly, we conclude that the proposals are nonnegotiable because they concern a matter which is specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C) of the Statute. See National Association of Government Employees, Locals R12-122, R12-222 and U.S. Department of Defense, Washington National Guard, Tacoma, Washington, 38 FLRA 295, 305-06 (1990) (proposal requiring agency to maintain uniforms "ready to wear on a weekly basis" found nonnegotiable because it concerned a matter specifically provided for by 5 U.S.C. § 5901(a)).

XXXVI. Proposal 4

Article 17, Merit Promotion

Section 8A- The Employer will appoint an Evaluation Board of three (3) to five (5) members to evaluate the potential of the candidates to perform in the vacant position. The Employer has determined that the selecting official will not serve on the Evaluation Board. It shall be the responsibility of the Board to consider each applicant's performance evaluation, past experience, training, educational background, appropriate awards, and other relevant information which indicates potential to perform in the vacant position. The assessment of each candidate will be based solely on the documentation before the Board and not on the personal opinions of the Board members.

Section 8B- Where there are five (5) qualified applicants or fewer, the Employer need not appoint an Evaluation Board. In that event, the Evaluation Board's function may be performed by a personnel specialist or by the Evaluation Board.

A. Positions of the Parties

The Agency argues that Proposal 4 "require[s] the assignment of specific numbers of employees from a particular organizational subdivision" to the Evaluation Board and, consequently, directly interferes with management's right to determine the numbers, types, and grades of employees or positions assigned to any organizational subdivision under section 7106(b)(1) of the Statute. Supplemental Statement of Position at 3. In addition, the Agency contends that the proposal "require[s] the performance of specific functions by specific individuals or organizations" and, therefore, directly interferes with management's right to assign work under section 7106(a)(2)(B). Id.

The Union states that the proposal "sets up the procedure by which a board evaluates the qualifications of applicants for promotions or other placement actions covered by Merit Promotion procedures." Petition for Review at 27.

B. Analysis and Conclusions

Section 8A of Proposal 4 requires management to appoint an "Evaluation Board" to assess the potential of applicants to perform in the vacancy for which they are applying except, as provided in section 8B, where there are fewer than six qualified applicants for a vacancy. Proposals specifying the circumstances in which applicants for bargaining unit vacancies will be rated by panels are negotiable procedures within the meaning of section 7106(b)(2) of the Statute. See National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office St. Louis, Missouri, 35 FLRA 362, 370 (1990) (Naval Plant Representative Office) (provision providing that "where three or more qualified candidates are identified, a ranking panel will be established to determine the best qualified candidates" held negotiable); National Federation of Federal Employees, Local 29 and Kansas City District, Corps of Engineers, Kansas City, Missouri, 23 FLRA 569, 576-77 (1986) (portion of proposal requiring agency to "establish a rating and ranking panel on all positions where there are three or more qualified bargaining unit applicants" held negotiable). See also American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Navy Resale Activity/Navy Exchange, Naval Weapons Station, Charleston, South Carolina, 35 FLRA 1128, 1135 (1990) (Naval Weapons Station) (part of proposal providing that "[n]ormally rating and ranking panels will not be used for unit positions" held negotiable under section 7106(b)(2)). To the extent that the proposal prescribes that an Evaluation Board must be used in certain circumstances, we find, for the reasons more fully stated in the cited cases, that Provision 4 is a negotiable procedure under section 7106(b)(2) for management to observe in filling vacancies.

In Naval Plant Representative Office, we also found that the requirement to use a panel, rather than a single individual, in rating and ranking candidates for vacancies did not interfere with management's "right to determine its administrative and functional structure." 35 FLRA at 370. Accordingly, the requirement in Proposal 4 that the Agency establish an Evaluation Board does not interfere with the Agency's right to determine the numbers, types, and grades of employees or positions assigned to an organizational subdivision under section 7106(b)(1) of the Statute. We note, in this regard, that the proposal's wording does not support the Agency's assertion that Proposal 4 would "require the assignment . . . of employees from a particular organizational subdivision" to the Evaluation Board. Supplemental Statement of Position at 3.

The second sentence of section 8A, in stating that "the Employer has determined that the selecting official will not serve on the Evaluation Board," precludes management from assigning selecting officials to Evaluation Boards. Consequently, that sentence directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Naval Weapons Station, 35 FLRA at 1136. Even if the second sentence in section 8A reflects the Agency's current practice of excluding selecting officials from Evaluation Boards, that fact does not change our conclusion. Proposals that directly interfere with management rights under section 7106(a) are nonnegotiable even when they reflect current management practices. PTO, 41 FLRA at 819. Compare National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279, 1327 (1992) (proposal which required particular management officials to hear employees' requests not to be tested for drugs found to be a negotiable appropriate arrangement, because those officials had the authority to order testing).

Finally, we note that section 8B provides that if there are five or fewer qualified applicants, the Evaluation Board need not be used and its function may be performed by a personnel specialist. The Agency asserts that this section directly interferes with management's right to assign work under section 7106(a)(2)(B) by requiring "the performance of specific functions by specific individuals or organizations." Supplemental Statement of Position at 3. We disagree. Section 8B states only that, when management decides not to use a panel, the evaluation function "may be performed" by a personnel specialist; it does not require that management designate a personnel specialist to evaluate candidates for vacancies. Accordingly, section 8B does not directly interfere with the Agency's right to assign work. See, for example, VA, 43 FLRA at 431.

In sum, we find that the second sentence of section 8A, in barring selecting officials from membership on Evaluation Boards, directly interferes with management's right to assign work under section 7106(a)(2)(B) and, in the absence of a Union assertion that the sentence is an appropriate arrangement under section 7106(b)(3) of the Statute, it is nonnegotiable. However, the remainder of the proposal, describing the circumstances in which an Evaluation Board will be used and when its use is optional, is a negotiable procedure, under section 7106(b)(2) of the Statute, to be followed by management in exercising its right to fill positions.

XXXVI. Order

The petition for review is dismissed insofar as it concerns Provisions 1 and 3; Provision 4, to the extent that it authorizes use of performance ratings assigned more than 4 years prior to issuance of a RIF notice; Provisions 5, 7, and 8; the last sentence of Provision 9; Provisions 10, 11, 12, 13, 14, 15, and 16; section 2A and the last sentence of section 2C of Provision 18; Provision 19; paragraphs (2), (3), (4), (5), (7), and (8) of Provision 21; the first sentence of Provision 24; Provisions 25, 26, and 27; section (c) of Provision 31; the last sentence of section 3A of Provision 33; Provisions 34, 35, 36, 37, 38, 39, 40, 41, 42, and 43; Proposals 2 and 3; and the second sentence in section 8A of Proposal 4.

The Agency will rescind its disapproval of Provision 2; Provision 4, except to the extent that it provides for use of performance ratings assigned 4 years prior to a RIF notice; Provision 6; Provision 9, except for the last sentence; Provision 17; section 2C of Provision 18, except for the last sentence; Provision 20; paragraphs (1) and (6) of Provision 21; Provisions 22 and 23; the second sentence of Provision 24; Provisions 28, 29, and 30; Provision 31, except for section (c); Provision 32;

Provision 33, except for the last sentence of section 3A; Proposal 4, except for the second sentence in section 8A; and Provision 44. The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning Proposal 4 except for the second sentence in section 8A.22/

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

1. The Agency withdrew its disapproval of Article 20, sections 3B and 15C. Statement of Position at 35, 36. In addition, the Agency states that it has no objection to the following provisions: Article 7, sections 6B and 6C; Article 8, section 2B; Article 9, section 11B; Article 12, sections 6D and 16; Article 14, section 3; Article 15, sections 1B and 6B; Article 20, section 8B; Article 21, section 1(a); Article 22, section 2b; Article 24, section 12A; Article 29, section 5E; Article 30, section 8C; Article 40, section 1; Appendix J, sections 3b and 3c; and Appendix O. Id. at 1, 7, 11, 36, and 37. We will not consider these provisions further.

2. Section 7117(c)(4) of the Statute provides that:

[o]n or before the 15th day after the date of receipt by the exclusive representative of a copy of [the agency's statement of position], the exclusive representative shall file with the Authority its response to the statement.

        Section 2424.7(a) of the Authority's Regulations provides that:

[w]ithin fifteen (15) days after the date of the receipt by an exclusive representative of a copy of an agency's statement of position the exclusive representative shall file a full and detailed response . . . .

3. Although certain wording in our Order to Show Cause concerning calculation of time limits in this case may have been misleading, that Order was issued after the reply brief had been filed and could not have influenced the Union's determination as to when to file its reply brief.

4. FPM chapter 630, subchapter 3-4.b(1), as pertinent, provides:

b. Agency authority. (1) General. Annual leave provided by law is a benefit and accrues automatically. However, supervisors have the responsibility to decide when the leave may be taken. This decision will generally be made in the light of the needs of the service rather than solely on the desires of the employee.

5. 5 C.F.R. § 630.606(a) provides, in relevant part, that:

(a) Entitlement. Except as otherwise authorized by statute, an employee is entitled to home leave only when he has completed a basic service period of 24 months of continuous service abroad.

6. FPM chapter 630, subchapter 12-2 provides, with exceptions not relevant here, that "[a]uthorizing LWOP is a matter of administrative discretion. An employee is not entitled to be granted LWOP as a matter of right[.]"

7. FPM chapter 630, subchapter 13 provides, in relevant part:

13-3. EMPLOYEE AND AGENCY RESPONSIBILITIES

. . . .

b. Agency responsibility. (1) The overall objective of the agency should be to develop policy on leave for parental and family responsibilities that is compassionate and flexible for the employee. Yet in exercising this discretion, agencies should not establish policies that will adversely affect mission accomplishment.

. . . .

13-6. LEAVE FOR ADOPTION AND FOSTER CARE

a. The adoption process. . . . . Leave for adoption may be annual leave or leave without pay. Sick leave for this purpose is not appropriate.

8. Although the Agency cites 5 C.F.R. § 550.1001(d) as the applicable Government-wide regulation, that section does not exist. It is apparent that the Agency is referring to section 550.1002(d), which provides:

The premium pay provisions for overtime work in Subpart A of Part 550 of Title 5, Code of Federal Regulations, and section 7 of the Fair Labor Standards Act of 1938, as amended, do not apply to compensatory overtime work performed by an employee [to earn compensatory time off for religious observances].

9. 5 C.F.R. § 531.412(b) provides:

(b) When an acceptable level of competence is achieved at some time after a negative determination, the effective date is the first day of the first pay period after the acceptable determination has been made.

10. As the Agency does not contest the negotiability of paragraph (6), we conclude that it is not in dispute and will order the Agency to rescind its disapproval of it. American Federation of Government Employees, Local 48 and U.S. Department of the Navy, Naval Submarine Base, Bangor, Washington, 38 FLRA 1359, 1360 n.2. (1991).

11. Provision 25, as contained in the Petition for Review, was incomplete. Consequently, the bracketed wording in the text of the provision has been taken from the Agency's Statement of Position at 34.

12. The Treasury, Postal Service and General Government Appropriations Act of 1991, Pub. L. No. 101-509, 104 Stat. 1389, 1390 (1990) which was cited by the Agency, has been replaced by the Treasury, Postal Service and General Government Appropriations Act of 1992, Pub. L. No. 102-141, 105 Stat. 834, 835 (1991) (Appropriations Act), effective for the fiscal year ending September 30, 1992. The Appropriations Act states, in pertinent part, that:

notwithstanding any other provision of law, students attending training at any Federal Law Enforcement Training Center site shall reside in on-Center or Center-provided housing, insofar as available and in accordance with Center policy[.]

13. 28 U.S.C. § 2679 concerns, among other matters, suits brought against the United States for:

(b)(1) . . . injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . . .

Section (c) provides, in pertinent part, that:

The Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any such damage or injury.

14. 28 C.F.R. Part 15 requires, among other things, that a Federal employee against whom a civil action or proceeding is brought deliver expeditiously the process and pleadings to the employee's appropriate agency representative, that the employee's employing Federal agency provide data bearing on the scope of employment to the U.S. Attorney, and that the U.S. Attorneys take certain actions concerning removal and defense of suits.

15. OPM published a revised FPM chapter 315, subchapter 8 on June, 9, 1992. The counterpart to the part of FPM chapter 315 cited by the Agency, subchapter 8-5.a, provides in pertinent part:

Supervisor should . . . communicate expectations for performance and conduct, provide meaningful work assignments, give periodic feedback on performance and conduct, and provide on-the-job training and counseling. Not only will these attentions help the probationer succeed, they will also make the supervisor more aware of the probationer's capabilities and thus better able to evaluate the employee's overall fitness for Government service.

16. The revised FPM chapter 315, subchapter 8 does not require the certification process described in section 3A of Provision 33.

17. Title 5 contains no section 332. We assume that the Agency intended to cite 5 U.S.C. § 3321, entitled "Competitive service; probationary period," and we have considered that section in our analysis.

As relevant here, 5 U.S.C. § 3321(a)(1), in conjunction with 5 U.S.C. §§ 1301-1302, assigns responsibility to OPM for promulgating regulations governing the probationary period in the competitive service.

18. The relevant portion of the revised FPM chapter 315, subchapter 8-6.c, provides that, when a probationer's termination is based entirely on performance or conduct after entrance on duty:

. . . the probationer is entitled to written notice containing reasons for the action, the effective date, and information concerning the limited right to appeal . . . . The notice should contain sufficient information to enable the probationer to know why the action is being taken, and must be dated on or before the effective date of the action. A probationer has no right to reply to the notice of action.

19. The Agency asserts that Provisions 42 and 43 are inconsistent with 5 C.F.R. § 430.502(c)(1), a section which does not exist. However, until recently, performance award determinations were governed by 5 C.F.R. § 430.503(c)(1). Accordingly, we will construe the Agency's cite as an assertion that the provision is inconsistent with that regulation. As 5 C.F.R. § 430.503(c)(1) was revised by OPM and replaced by 5 C.F.R. § 430.504(d), 56 Fed. Reg. 20331, 20332 (1991), our determination is based on 5 C.F.R. § 430.504(d).

20. 5 C.F.R. § 430.504(d) provides:

(d) The decision to grant a performance award, including the amount of such award, shall be reviewed and approved by an official of the agency who is at a higher level than the official who made the initial decision, unless there is no official at a higher level in the agency.

21. 5 U.S.C. § 5901 provides in pertinent part:

(a) There is authorized to be appropriated annually to each agency . . . on a showing of necessity or desirability, such sums as may be necessary to carry out this subchapter. The head of the agency . . . shall--

(1) furnish to each of the[] employees [concerned] a uniform at a cost not to exceed $400 a year (or such higher maximum amount as the Office of Personnel Management may establish under section 5902); or

(2) pay to each of these employees an allowance for a uniform not to exceed $400 a year (or such higher maximum amount as the Office of Personnel Management may establish under section 5902).

22. In finding these provisions, parts of provisions, and a portion of Proposal 4 to be negotiable, we make no judgment as to their merits.

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