48:0168(15)NG - - AFGE Local 1345 and Army, HQ, Fort Carson and HQ, 4th Infantry Division, Fort Carson, CO - - 1993 FLRAdec NG - - v48 p168



[ v48 p168 ]
48:0168(15)NG
The decision of the Authority follows:


48 FLRA No. 15

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1345

(Union)

and

U.S. DEPARTMENT OF THE ARMY

HEADQUARTERS, FORT CARSON

AND

HEADQUARTERS, 4TH INFANTRY DIVISION

FORT CARSON, COLORADO

(Agency)

0-NG-1996

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

August 11, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

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 19 proposals. The Agency filed a statement of position, and the Union filed a reply brief.(2)

For the reasons stated below, we make the following findings. The first disputed sentence of Proposal 1, which requires "the supervisor" to discuss with employees any changes to their position descriptions when the changes are made, is negotiable. The second disputed sentence of Proposal 1, which precludes the Agency from assigning any work not contained in an employee's position description, directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is nonnegotiable. Proposal 2, which requires "the supervisor" to discuss performance expectations with employees at the beginning of their appraisal periods, is negotiable. Proposal 3, which assigns to employees' immediate supervisors the responsibility for performance progress reviews, is nonnegotiable because it directly interferes with management's right to assign work. Proposal 4, which provides that supervisors will routinely grant annual leave unless there are compelling work requirements related to the Agency's mission, directly interferes with the right to assign work and is nonnegotiable. Proposal 5, requiring the Agency to grant up to 6 weeks' advanced annual leave, unless precluded by compelling mission-related requirements, also directly interferes with management's right to assign work and is nonnegotiable.

Proposal 6, providing that supervisors should excuse certain absences without charge to leave, is negotiable. Proposal 7, which provides for 4 hours of administrative leave for blood donors, is nonnegotiable because it directly interferes with the right to assign work. Proposal 8, which assigns certain functions to an Agency safety and health official, is nonnegotiable because it directly interferes with the right to assign work. Proposal 9, which assigns certain tasks to supervisors and Agency safety officers, is nonnegotiable because it directly and excessively interferes with the right to assign work. Proposal 10, which obligates the Agency to provide "appropriate" safety training to unit employees, members of safety committees, and Union officials, is negotiable in part. Proposal 11, requiring supervisors to "take appropriate action" in connection with employees' work-related injuries, is negotiable. The part of Proposal 12 that concerns safety precautions to be taken for employees assigned to work in confined or enclosed spaces without natural or mechanical ventilation is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. However, the part of Proposal 12 prescribing certain safety precautions for employees working beyond the view of others excessively interferes with the right to assign work and, consequently, is nonnegotiable. Proposal 13 requires the Agency to make certain accommodations for employees with handicapping conditions. The first disputed sentence of the proposal directly and excessively interferes with management's rights to assign employees and is nonnegotiable. The second disputed sentence of Proposal 13 is negotiable as an appropriate arrangement. The third disputed sentence, which requires retention of employees with handicapping conditions on the payroll pending final action by the Office of Personnel Management on disability retirement applications, is nonnegotiable. Proposal 14, which prevents management from taking disciplinary action against employees based on certain types of information, is nonnegotiable because it directly interferes with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute.

Proposal 15 consists of two disputed sentences that insulate employees from discipline in certain situations. The first disputed sentence is nonnegotiable because it excessively interferes with the right to discipline, and the second disputed sentence is nonnegotiable because it directly interferes with that right. Proposal 16, which obligates the Agency to conduct specific cost studies in addition to those required by Office of Management and Budget (OMB) Circular A-76 before deciding to contract out, excessively interferes with management's right to contract out under section 7106(a)(2)(B) of the Statute. Proposal 17, which requires compliance with the prohibition in OMB Circular A-76 against contracting out solely to meet personnel ceilings or avoid salary limitations, is nonnegotiable. Proposal 18, which prevents the Agency from assigning unit employees to be supervised by non-Federal personnel, directly interferes with management's right to assign work under section 7106(a)(2)(B). Proposal 19, which obligates the Agency to include in contracts awarded to private entities a provision affording displaced Government employees a "right of first refusal" according to their seniority for positions with contractors, is nonnegotiable.

II. Proposals 1, 2, 6, and 11

Proposal 1

Article 6, Section 3

The supervisor will discuss any changes to the position description with the employee at the time of change. The employee will be furnished a copy of his/her current position description and job standard within 30 days of assignment to position. An employee's performance standard and critical elements must be consistent with present position. New position descriptions will be furnished to the affected employee and the Union 30 days before they become effective. No employee may be assigned work that is not in his/her position description.

[Only the underscored sentences of Proposal 1 are in dispute.]

Proposal 2

Article 6, Section 8

Prior to the beginning of each appraisal cycle, the supervisor shall meet and discuss with the employee and provide, in writing, a description of the type of performance he/she expects would merit a rating of not met, met, or exceeded on each of the employee's performance elements.

Proposal 6

Article 16, Section 2

Supervisors should excuse without charge to leave infrequent brief periods of tardiness or absence up to one hour, if such tardiness or absence is for a good cause.

Proposal 11

Article 22, Section 10

The supervisor will take appropriate action to ensure that:

10b. . . . The Agency agrees that assistance will be given to employees in preparing necessary forms and documents for submission to Office of Workers' Compensation Programs (OWCP) and that employees will be informed of their rights under the Federal Employee's Compensation Act, as amended. An employee who has sustained an

on-the-job injury will be required to perform duties only to the extent and limits as may be prescribed by the treating physician or the Personnel physician as appropriate. . . . In the event that such employee's supervisor does not have light work which meets this physician's stated limitations for the employee, the supervisor will make a good faith effort to locate light duty work within the facility which the employee can perform.

[Only the underscored sentence of Proposal 11 is in dispute; ellipses in the original.]

A. Positions of the Parties

The Agency asserts that the first sentence of Proposal 1 and Proposals 2, 6, and 11 are nonnegotiable because they directly interfere with its right to assign work under section 7106(a)(2)(B) of the Statute by assigning specific functions to supervisors. The Agency contends that the last sentence of Proposal 1 also directly interferes with the right to assign work by preventing the assignment of any task to an employee unless the task is described in the employee's position description.

The Union maintains that the first sentence of Proposal 1 and Proposal 2 are negotiable procedures under section 7106(b)(2) for management to follow in assigning work. The Union contends that the last sentence of Proposal 1 was "approved by the Authority" in National Association of Government Employees, SEIU, AFL-CIO and State of Connecticut, Adjutant General Office, 27 FLRA 801, 806-09 (1987) (Chairman Calhoun dissenting) (Connecticut Adjutant General). Petition for Review at 2. According to the Union, Proposal 6 "merely repeats the language in the Federal Personnel Manual [FPM] on excused absence without charge to leave." Id. at 3. The Union argues that Proposal 11 is "an appropriate arrangement for employees adversely affected by having been assigned work which resulted in an on the job injury." Id. at 4.

B. Analysis and Conclusions

The Agency's contention that the first sentence of Proposal 1 and Proposals 2, 6, and 11 directly interfere with its right to assign work by assigning specific tasks to identified management officials is the same as that advanced by the agency concerning Provision 32 in National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 763 (1992) (Customs Service). The provision in Customs Service required "the supervisor" of a probationary employee to observe, guide, and counsel the employee during his or her probationary period. Noting that the record indicated no union intention to assign work to a particular individual, we found that the identification of "the supervisor" did nothing more than assign the specified functions to someone within the employee's supervisory chain whom management would designate. We determined that the provision merely established certain obligations owed to employees by the agency and concluded that it was negotiable.

Similarly, the first sentences of Proposals 1 and 11 and Proposals 2 and 6 require "supervisor(s)" to perform described functions. There is no evidence in the record that the Union intends to assign responsibility for the specific functions to particular individuals. Instead, the Union states that the first sentence of Proposal 1 and Proposal 2 are procedures for management to follow in exercising its right to assign work and that Proposal 6 parallels the applicable FPM chapter. There is nothing in the wording of Proposal 11 requiring that supervisors perform any particular tasks. Rather, that proposal requires only that supervisors "ensure" that certain actions are taken on behalf of employees injured on the job.

Based on the Union's explanations, we find that the first sentence of Proposal 1 and Proposal 2 would assure that employees are provided with the information described, that Proposal 6 would avoid charges to leave for certain infrequent, brief absences, and that Proposal 11 would ensure that certain management obligations to injured employees, as to which the Agency withdrew its allegation of nonnegotiability, are met. See Statement of Position at 5. Consistent with these interpretations, we find that the first sentence of Proposal 1 and the other three disputed proposals are not intended to designate particular individuals to perform specified functions and that the terms "the supervisor" and "[s]upervisors" only require that someone, designated by management, within the supervisory structure perform the described functions. Therefore, as the first sentence of Proposal 1 and Proposals 2, 6, and 11 do not directly interfere with the right to assign work, they are negotiable for the reasons stated in Customs Service. Compare Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10, 23-24 (1993) (Patent and Trademark Office) (proposals specifying that certain management officials will "normally" perform described functions held to directly interfere with right to assign work), petition for review filed as to other matters sub nom. Patent Office Professional Association v. FLRA, No. 93-1255 (D.C. Cir. Apr. 2, 1993).

As the Union notes, the last sentence of Proposal 1, which conditions the assignment of certain work on the prior amendment of position descriptions to include that work, is similar to the proposal which the Authority found negotiable in Connecticut Adjutant General. The Authority concluded that the proposal in that case did not directly interfere with the agency's right to assign work because the proposal precluded the assignment of work only until such time as the agency amended the position descriptions.

Subsequent to Connecticut Adjutant General, the U.S. Court of Appeals for the District of Columbia Circuit held that certain proposals prescribing when a management right may be exercised constituted substantive limitations on the exercise of that right. See Department of the Treasury, Internal Revenue Service v. FLRA, 862 F.2d 880, 882 (D.C. Cir. 1988) (proposal precluding agency from implementing decision to contract out until grievance and arbitration procedures were exhausted found by court to "encroach[] entirely too far upon management's authority to accomplish its agency's mission with dispatch[.]"); United States Customs Service, Washington, D.C. v. FLRA, 854 F.2d 1414, 1419 (D.C. Cir. 1988) ("A decision regarding the timing of a program's implementation . . . is part and parcel of the reserved management right to determine the means by which an agency's work will be performed. It is a substantive, and not at all a procedural, decision[.]"). We have adopted the court's views and we have held that certain proposals precluding an agency from exercising a management right unless or until other events occurred directly interfered with that right. See National Weather Service Employees Organization (MEBA/NMU) and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 46 FLRA 49, 54-56 (1992) (proposal requiring agency to hold certain decision in abeyance for specified time period held to directly interfere with exercise of right to assign work); American Federation of Government Employees, Local 2077 and U.S. Department of Defense, Michigan Air National Guard, 127th Tactical Fighter Wing, 43 FLRA 344, 364-66 (1991) (Michigan ANG) (Member Talkin dissenting in part as to other matters) (proposal preventing agency from implementing decision to contract out until exhaustion of grievance and arbitration procedures held to directly interfere with exercise of right to contract out).

The right to assign work under section 7106(a)(2)(B) of the Statute encompasses the authority to determine when work will be performed. See, for example, National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1126 (1991) (Army Information Systems Command) (proposal restricting agency's authority to determine when annual leave could be taken held to directly interfere with the right to assign work). In this connection, we conclude that, in at least some situations, timing is an integral part of the right to assign work. In this case, for example, the bargaining unit includes, among others, medical personnel, such as registered nurses and medical technicians, who reasonably may be required to respond rapidly to a variety of medical situations. Moreover, it is undisputed that, as the Agency asserts, the proposal would "effectively prohibit[] management from assigning any task, no matter how small or large, unless the specific work assignment is currently listed in the position description." Statement of Position at 2. Further, although it may be possible, in some situations, to effect amendments to position descriptions before completion of the disputed work is required, in other situations it may not be possible to do so. Accordingly, even in circumstances which do not constitute medical emergencies, requiring the agency to amend position descriptions before assigning work could effectively prohibit such assignment. For all these reasons, we conclude, in this case, that the last sentence of Proposal 1 directly interferes with the Agency's right to assign work. To the extent that Connecticut Adjutant General is inconsistent with our conclusion regarding the last sentence of Proposal 1, we will no longer follow that decision.

The Union does not assert that the last sentence of Proposal 1 is intended as an appropriate arrangement, within the meaning of section 7106(b)(3) of the Statute. Accordingly, we do not reach that question. However, we note that, in National Federation of Federal Employees, Local 1214 and U.S. Department of the Army, Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, 45 FLRA 1121, 1129-31 (1992) (Fort Jackson), a proposal which precluded the agency from assigning work which was not contained in or related to duties that were contained in employees' position descriptions was found to excessively interfere with the agency's right to assign work.

In sum, we find that the first disputed sentence of Proposal 1, Proposals 2 and 6, and the disputed first sentence of Proposal 11 are negotiable. The last disputed sentence of Proposal 1 is nonnegotiable.

III. Proposals 3 and 9

Proposal 3

Article 6, Section 9

At a minimum, near the mid-point of the appraisal cycle, the supervisor shall meet with the employee to review the employee's progress and performance. At that time, the supervisor shall furnish the employee with an advisory appraisal, consisting of the appraisal form completed by the supervisor, according to his/her assessment of the employee as of that date.

Proposal 9

Article 22, Section 6

If the supervisor believes the condition or corrected condition does not pose an imminent danger, then the supervisor shall request an inspection by an Agency safety officer, as well as contact the designated Union representative. A Union representative shall be afforded the opportunity to be present at the time the inspection is made. If the safety officer decides the condition does not pose an imminent danger, the instruction to return to work shall be in writing and contain a statement declaring the area or assignment to be safe.

[Only the underscored sentences of Proposal 9 are in dispute.]

A. Positions of the Parties

The Agency contends that Proposals 3 and 9 are nonnegotiable because they interfere with the right to assign work by assigning particular work to a specific individual. The Agency also argues that the Union has failed to show that Proposal 9 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

The Union argues, concerning Proposal 3, that "[t]here is nothing non[]negotiable about requiring the supervisor to furnish guidance of this nature to the employee." Petition for Review at 2. Further, the Union contends that, contrary to the Agency's position, Proposal 3 does not assign work to any particular individual, "only to 'the supervisor.' This individual is whomever management has elected to assign the work of supervising an employee." Id. The Union asserts that Proposal 9 "is an appropriate arrangement for employees adversely affected by work assignments that they believe could cause death or serious physical harm." Id. at 4.

B. Analysis and Conclusions

As discussed in connection with Proposals 1, 2, 6, and 11, proposals that require the assignment of specific duties to identified individuals, including management officials, directly interfere with management's right, under section 7106(a)(2)(B) of the Statute, to assign work. See, for example, Customs Service, 46 FLRA at 737. Unlike the first sentence of Proposal 1, and Proposals 2, 6, and 11, which, as we discussed above, merely required the Agency to assign certain responsibilities to an individual of its choosing in the supervisory structure, the Union's statement of the meaning of Proposal 3 clearly indicates that the function described in the proposal is to be performed by affected employees' immediate supervisors. In this regard, the Union states that Proposal 3 assigns the described responsibility to the individual "management has elected to assign the work of supervising an employee." Petition for Review at 3. Furthermore, the Union suggests that responsibility for providing performance guidance to an employee ought to be the primary function of the employee's supervisor. See id. at 2. Consequently, the effect of Proposal 3 is to assign a specific function to a particular management official. Accordingly, Proposal 3 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). As the Union does not claim that Proposal 3 is intended to be an appropriate arrangement under section 7106(b)(3) of the Statute, we do not reach that question.

As the Union's sole argument concerning Proposal 9 is that it constitutes an appropriate arrangement for employees adversely affected by work assignments they believe jeopardize their health or safety, we will assume, consistent with Authority precedent, that the proposal directly interferes with management's right to assign work. See National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 66 (1991), vacated in part 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), decision and order on remand, 45 FLRA 1256 (1992).

The question, therefore, is whether the disputed sentences of Proposal 9 are appropriate arrangements under section 7106(b)(3). In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-35 (1986) (KANG), the Authority established an analytical framework for evaluating proposals intended to be appropriate arrangements within the meaning of section 7106(b)(3). Applying KANG, we must first decide whether the provision is an "arrangement" for employees adversely affected by the exercise of a management right. If the proposal is an arrangement, we then examine whether the proposed arrangement is appropriate because it does not excessively interfere with the exercise of that right. We will assume, for the purpose of analysis, that the disputed sentences are arrangements for employees adversely affected by management's exercise of its right to assign work.

Next, under KANG, we must determine whether the arrangements are appropriate or inappropriate because they excessively interfere with a management right. It is clear, in this regard, that employees benefit generally from protection against work hazards and that, in many circumstances, requiring management to protect employees engaged in hazardous work assignments does not excessively interfere with the right to assign work. See, for example, American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 589, 604-05 (1991). Indeed, the Agency does not disagree. However, the Agency asserts, and we agree, that "it is not apparent how imposing a restriction that the supervisor and safety officer, and no one else, must make certain requests and provide particular written certifications ameliorates the adverse impact on bargaining unit employees." Statement of Position at 5. In this connection, the Union does not identify the benefits afforded to employees by requiring the Agency to assign the described responsibilities only to the specified management officials. It is well established that the parties bear the burden of creating a record upon which the Authority can base a negotiability determination. A party failing to meet that burden acts at its peril. See, for example, Fort Jackson, 45 FLRA at 1130.

As the Union has not identified the specific benefits to employees afforded by requiring the Agency to assign the specified functions only to the identified management officials, and as such benefits are not otherwise apparent to us, we find that the burden imposed on management's right to assign work outweighs whatever benefits the proposal might provide to unit employees. Accordingly, we find that Proposal 9 is not an appropriate arrangement because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

In sum, we conclude that Proposals 3 and 9 are nonnegotiable.

IV. Proposals 4 and 5

Proposal 4

Article 14, Section 1

Annual leave is the right of an employee and will be accrued and approved in accordance with applicable laws and regulations. Annual leave will be routinely granted by supervisors. The only reason for denying earned annual leave is compelling work requirements related to the mission of the Agency.

[Only the underscored sentences are in dispute.]

Proposal 5

Article 14, Section 8

The Employer will grant advance[d] annual leave to employees for periods of up to six weeks unless compelling mission-related requirements preclude[] such an advance. Compelling mission-related requirements do not include ordinary workload.

A. Positions of the Parties

The Agency asserts that, by preventing management from denying annual leave requests unless justified by compelling mission-related work requirements, Proposal 4 "imposes a substantive condition" on management's exercise of its right to assign work under section 7106(a)(2)(B) and is nonnegotiable. Statement of Position at 6. Similarly, the Agency contends that the requirement in Proposal 5 that management grant requests for advanced annual leave, unless compelling mission-related considerations require such requests to be denied, is nonnegotiable because it directly interferes with the right to assign work. The Agency also argues that Proposal 5 is nonnegotiable because it is inconsistent with a Government-wide regulation, Federal Personnel Manual [FPM] Chapter 630, subchapter 3-4.b.(3)

The Union asserts that wording similar to that in Proposals 4 and 5 "was approved as to official time requests" in American Federation of Government Employees, AFL-CIO, Local 2354 and Department of the Air Force, HQ 90th Combat Support Group, F.E. Warren Air Force Base, Wyoming, 30 FLRA 1130, 1131-35 (1988) (Warren AFB). Petition for Review at 3.

B. Analysis and Conclusions

Initially, we reject the Agency's argument that Proposal 5 conflicts with FPM chapter 630, subchapter 3-4.b. We note, in this regard, that we rejected the same argument, concerning a similar provision, in Customs Service, 46 FLRA at 714. We noted, in Customs Service, that the FPM provision affords management broad discretion in acting on annual leave requests and that an agency is obliged under the Statute to exercise that discretion through bargaining. We conclude here, for the reasons stated in greater detail in Customs Service, that negotiation over Proposal 5 is not barred by FPM chapter 630, subchapter 3-4.b.

However, proposals imposing 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, Customs Service, 46 FLRA at 714-15. Proposals 4 and 5 limit the circumstances in which annual leave requests may be denied. Proposal 4 provides that annual leave "will be routinely granted" and establishes that such requests may be denied only because of "compelling work requirements" related to the Agency's mission. Proposal 5 requires the Agency to grant advanced annual leave of up to 6 weeks in the absence of "compelling mission-related requirements." Under Proposal 5, such requirements expressly do not include "ordinary workload." Consequently, management could not assign work to an employee during the period covered by that employee's request for annual or advanced annual leave, unless it could establish that denial of the request is based on compelling, mission-related, work considerations. As Proposals 4 and 5 place substantive restrictions on the Agency's right to assign work, we find that they directly interfere with that right.

The Union's reliance on the holding in Warren AFB is misplaced. The relevant provisions in that case, Provisions 1 and 2, provided that employees' and union officials' requests for official time to engage in labor-management activities would be automatically granted, absent specified work-related considerations. In finding that the provisions were negotiable procedures, the Authority noted that "section 7131(d) 'carves exceptions' to management's right to assign work under section 7106(a)(2)(B); otherwise, that right 'would preclude any negotiation of official time provisions, since official time always affects an agency's ability to assign work.'" Warren AFB, 30 FLRA at 1133 (quoting American Federation of Government Employees, Council of Locals No. 214 v. FLRA, 798 F.2d 1525, 1530-31 n.8 (D.C. Cir. 1986)). See also National Federation of Federal Employees, Local 466 and U.S. Department of Agriculture, Forest Service, Regional Office, Atlanta, Georgia, 45 FLRA 1063, 1069-71 (1992) (Member Armendariz dissenting in part). The Statute "carves" no similar exception to the right to assign work governing the use of annual leave. Consequently, the holding in Warren AFB is inapplicable to Proposals 4 and 5.

Accordingly, we conclude that Proposals 4 and 5 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. As the Union does not assert that the proposals are intended as appropriate arrangements under section 7106(b)(3), they are nonnegotiable.

V. Proposal 7

Article 16, Section 8

Employees shall be granted a half working day administrative leave on days when they volunteer to give blood.

A. Positions of the Parties

The Agency contends that Proposal 7 is nonnegotiable because, by requiring it to authorize excused absences for employees who volunteer to donate blood, it directly interferes with management's right to assign work. The Agency also contends that the proposal is inconsistent with the FPM provision governing blood donations.(4)

In the Agency's view, "no provision in the regulation . . . states the excusal can exceed the amount of time it takes to actually make the donation . . . ." Statement of Position at 10.

The Union contends that "granting of administrative leave for blood donations is fully negotiable." Petition for Review at 3. In support, the Union cites National Federation of Federal Employees, Local 1429 and U.S. Department of the Army, Letterkenny Army Depot, 23 FLRA 117 (1986) (Letterkenny). Furthermore, according to the Union, "[i]t is understood in every provision dealing with leave that management can deny permission to leave the work place for legitimate reasons." Petition for Review at 3.

B. Analysis and Conclusions

We reject the Agency's contention that Proposal 7 is inconsistent with FPM chapter 630, subchapter 11. FPM chapter 630, subchapter 11-6.c.(1) provides that employees who make blood donations "may be granted" excused absence and that the excused absence may include time "to travel to the donation site and/or to recover." As the regulation authorizes agencies to grant excused absence to cover more than just the time necessary for the blood donation, we conclude that Proposal 7 is not inconsistent with it. See, for example, Customs Service, 46 FLRA at 720.

However, Proposal 7 precludes the Agency from denying administrative leave to employees who volunteer to donate blood. In this regard, we reject the Union's assertion that the proposal allows management to "deny permission to leave the work place for legitimate reasons." Petition for Review at 3. The proposal plainly states that employees "shall be granted" administrative leave to donate blood. Moreover, identical wording was found to be mandatory in Customs Service, 46 FLRA at 722. We do not base a negotiability determination on a union's statement of intent that conflicts with a proposal's plain wording. See, for example, id. As Proposal 7 requires the Agency to grant administrative leave to any employee volunteering to donate blood, we find that it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, id., 46 FLRA at 720-21. As the Union does not contend that the proposal constitutes an appropriate arrangement under section 7106(b)(3), we conclude that Proposal 7 is nonnegotiable.

In reaching this conclusion, we reject the Union's argument that Proposal 7 is negotiable based on the Authority's decision in Letterkenny. In that case, the wording of the provision and the union's explanation demonstrated that the provision did not restrict management's authority to deny administrative leave requests because of work considerations. Here, as noted above, Proposal 7 restricts such authority and, therefore, directly interferes with management's right to assign work.

VI. Proposal 8

Article 22, Section 3

The establishment safety and health official will request that the supervisor take interim steps for the protection of the employees. The supervisor shall comply with this request.

A. Positions of the Parties

The Agency asserts that Proposal 8 is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute by requiring identified management officials to perform specified functions.

According to the Union, Proposal 8 "requires no more and no less than what is already required of the Agency" under 29 C.F.R. Part 1960. Petition for Review at 4.

B. Analysis and Conclusions

We reject the Union's contention that Proposal 8 parallels the obligation imposed on the Agency by 29 C.F.R. part 1960.(5) Under that regulation, agency safety and health officials need not participate in developing steps to protect employees. Rather, 29 C.F.R. § 1960.30(c) provides that "the official in charge of the establishment" will develop an abatement plan with the "appropriate" participation of the establishment's safety and health official "or a designee." Moreover, the regulation assigns no responsibilities to supervisors. Proposal 8, on the other hand, requires that a management official, the "establishment safety and health official," who is not designated by the applicable regulation, participate in the temporary abatement of work place safety or health hazards. The proposal also requires that "the supervisor" take interim steps prescribed by that official. As Proposal 8 assigns to designated management officials functions that they are not required to perform under 29 C.F.R. § 1960.30(c), we reject the Union's assertion that the proposal merely incorporates the requirements of applicable regulations in the parties' agreement.

As noted earlier in connection with Proposal 3, proposals requiring identified management officials to perform specific functions directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, we find that Proposal 8, by assigning to "the establishment safety and health official" the function of advising supervisors of interim steps to abate safety or health hazards and requiring that "the supervisor" comply with that official's request, directly interferes with the right to assign work. As the Union makes no claim that Proposal 8 is intended to be an appropriate arrangement under section 7106(b)(3) of the Statute, we conclude that it is nonnegotiable.

VII. Proposal 10

Article 22, Section 7

The [A]gency shall provide appropriate safety and health training for employees, including specialized job safety and health training, appropriate to the work performed by the employee. Such training also shall inform employees of the Agency Occupational [S]afety and Health Program, with emphasis on their rights and responsibilities. (The Agency further agrees to provide designated members of safety committees with training in accordance with 1960-58 [sic] in order for them to carry out their assigned committee responsibilities.) Management will also provide training for Union representatives in accordance with 1960.59(b) [sic] that will enhance the effectiveness of the safety program.

A. Positions of the Parties

The Agency asserts that Proposal 10 is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute by requiring that unit employees undergo "specialized work[-] related training[.]" Statement of Position at 12. The Agency argues that, even though the training required is like that prescribed in 29 C.F.R. part 1960, the proposal constitutes an independent contractual restriction on its right to assign work.

The Union contends that Proposal 10 "simply requires what is already required" by 29 C.F.R. Part 1960. Petition for Review at 4. According to the Union, "the Authority has consistently held that there is nothing non[]negotiable about incorporating the requirements of governing regulations into a labor contract." Id. The Union maintains that it is "recognized and understood that when the contract incorporates the requirements of existing regulations, then changes in those regulations may call for the re-negotiation [sic] of the language at issue." Id.

B. Analysis and Conclusions

An agency's right to assign work includes the right to assign employees to attend job-related training during duty hours and the right to determine the type of training that is appropriate. See, for example, American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1431 (1992) (Health Care Financing Administration). Consequently, proposals requiring agencies to provide employees with training concerning the duties and responsibilities of their positions directly interfere with management's right to assign work. See, for example, National Federation of Federal Employees, Local 29 and U.S. Department of the Army, Engineer District, Kansas City, Missouri, 45 FLRA 603, 611 (1992) (Engineer District, Kansas City).

On the other hand, proposals that obligate an agency only to provide information to employees are negotiable, if the information is otherwise disclosable and concerns conditions of employment. In this connection, we have found negotiable a proposal requiring an agency to provide classes that: (1) constituted only the vehicle by which information would be conveyed to employees; (2) did not encompass instruction on employees' duties and responsibilities; and (3) were not intended to increase the knowledge, proficiency, ability, skill, and qualifications of unit employees in the performance of their official duties within the meaning of the definition of training under 5 U.S.C. § 4101(4). See Health Care Financing Administration, 44 FLRA at 1431.

Proposal 10 requires the Agency to conduct training on safety and health for unit employees, designated safety committee members, and Union representatives. As applicable to unit employees, the proposal's first two sentences require, among other things, that the training include "specialized job safety and health training, appropriate to the work performed by the employee." Based on the wording of the first two sentences, we find that the training required is directly related to the work unit employees perform. As the proposal's first two sentence require the Agency to provide training related to the duties of unit employees, we conclude that, to the extent that such training is mandated, these sentences directly interfere with management's right to assign work under section 7106(a)(2)(B). See Engineer District, Kansas City, 45 FLRA at 611.

It is unclear from the record whether the "designated members of safety committees" covered by the parenthetical sentence in Proposal 10 are designated by management to serve on those committees as collateral assignments. However, the sentence requires that the training accord with 29 C.F.R. § 1960.58 "in order for them to carry out their assigned committee responsibilities."(6) 29 C.F.R. § 1960.58 governs training for "collateral duty safety and health personnel and all members of certified occupational safety and health committees[.]" Therefore, we find that the personnel covered by the parenthetical sentence are unit employees whose service on safety committees is collateral to their principal duties and responsibilities and that the training is directed at enhancing their performance in that collateral assignment. Assigning employees to perform collateral duties constitutes an assignment of work under section 7106(a)(2)(B). See Health Care Financing Administration, 44 FLRA at 1432. Therefore, as the parenthetical sentence prescribes training concerning employees' collateral work assignment, it also directly interferes with the right to assign work. See id. at 1433.

In concluding that the first three sentences of Proposal 10 directly interfere with the right to assign work, we reject the Union's argument that a contrary finding is required because the training is like that prescribed by applicable regulations. Even assuming that the Union's characterization is correct, these three sentences require the Agency to provide the specified training for the life of the parties' negotiated agreement, notwithstanding any revision to the applicable regulations. As such, these sentences establish a substantive limitation on the Agency's exercise of its right to assign work. See, for example, American Federation of Government Employees, Local 3457 and U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana, 42 FLRA 567, 580-81 (1991) (Minerals Management Service), rev'd as to other matters sub nom. U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana v. FLRA, No. 91-1583 (D.C. Cir. Mar. 4, 1993). Compare National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 677-82 (1991) (provision requiring management to grant sick leave in accordance with applicable regulations held to be an appropriate arrangement). As the Union does not assert that the three sentences constitute an appropriate arrangement under section 7106(b)(3) for employees adversely affected by the exercise of a management right, they are nonnegotiable.

There is no indication in the record that the training for Union representatives, required by the last sentence of Proposal 10, includes anything other than providing the representatives with the information necessary for the conduct of their representational responsibilities regarding health and safety. We note, in this connection, that the sentence requires the Agency to train Union representatives "in accordance with" 29 C.F.R. § 1960.59(b).(7) More particularly, there is no indication that the Union representatives are to be trained in facets of the duties and responsibilities contained in their position descriptions. Moreover, the health and safety information conveyed by the training clearly concerns conditions of employment, and there is no evidence on which to conclude that the information is not disclosable. Accordingly, the last sentence of Proposal 10 which requires training for Union representatives in health and safety does not directly interfere with the right to assign work under section 7106(a)(2)(B) and is negotiable. See Health Care Financing Administration, 44 FLRA at 1432.

In sum, we find that the first three sentences of Proposal 10, which apply to bargaining unit employees and designated members of safety committees, directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and are nonnegotiable. However, the last sentence of Proposal 10, which applies to Union representatives, does not directly interfere with the Agency's right to assign work and is negotiable.

VIII. Proposal 12

Article 22, Section 13

No employee shall be allowed to work in an area beyond the visibility of others, without periodic checks being made by the supervisor, other employees, or security personnel. No employee shall be allowed to work in confined or enclosed spaces without either mechanical or natural ventilation without having someone posted outside equipped with necessary protective equipment to effect a safe rescue.

A. Positions of the Parties

The Agency asserts that Proposal 12 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute by prohibiting work assignments in specified circumstances and by requiring identified individuals to perform specific tasks. The Agency contends that the proposal also directly interferes with its right under section 7106(b)(1) to determine the numbers of employees assigned to any work project or tour of duty. The Agency further maintains that the proposal is not an appropriate arrangement under section 7106(b)(3) because it excessively interferes with those management rights.

The Union contends that Proposal 12 "is an appropriate arrangement for employees assigned work in remote areas or enclosed spaces." Petition for Review at 4.

B. Analysis and Conclusions

Proposals that place conditions on management's ability to assign work in specified circumstances directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, National Federation of Federal Employees, Local 1655 and Department of Military Affairs, Illinois Air National Guard, 35 FLRA 815, 817-18 (1990). Proposal 12 imposes conditions on the Agency's authority to assign work. The first sentence of the proposal prevents the Agency from assigning employees to areas beyond the view of others unless periodic checks are made by other individuals. The proposal's second sentence precludes assignment of employees to work in confined or enclosed spaces without posting an individual nearby with equipment necessary to effect a safe rescue. As the proposal prevents the assignment of certain work unless specified conditions are met, we find that it directly interferes with the right to assign work.

In addition, proposals that dictate the number of employees to be assigned to a particular job or task directly interfere with management's right under section 7106(b)(1) to determine the number of employees assigned to a work project. See, for example, American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, Dunbar Branch Office, Baltimore, Maryland, 37 FLRA 350, 355 (1990) (SSA, Dunbar Branch Office). The second sentence of Proposal 12 requires the assignment of two employees when work is performed in certain enclosed areas. Accordingly, we find that the second sentence of Proposal 12 directly interferes with the right to determine the number of employees assigned to a work project.

The Union asserts that Proposal 12 "is an appropriate arrangement for employees assigned work in remote areas or enclosed spaces." Petition for Review at 4. We interpret that assertion to mean that the proposal is intended to be an appropriate arrangement, within the meaning of section 7106(b)(3), for employees adversely affected by the exercise of a management right. For the purpose of analysis, we will assume that the first sentence is an arrangement for employees adversely affected by management's exercise of its right to assign work.

The first sentence of Proposal 12 benefits employees by assuring that others will check on them when they are working in isolated locations, thereby reducing the likelihood of injury. However, by its terms, the first sentence is applicable to every situation in which an employee is assigned to work in an isolated area and would require that management assign someone to check on employees in each instance. The Union does not allege, the record does not show, and it is not otherwise apparent that most, or even many, such assignments would put employees in jeopardy. Moreover, the first sentence would apply even if the assignment resulted in only temporary isolation. In this regard, the Agency points out, without challenge from the Union, that the first sentence would apply when management directs an employee to obtain medicine or supplies from a remote area. See Statement of Position at 15. We find, on balance, that the blanket prohibition on making any isolated assignments without providing for periodic surveillance imposes a burden on management that outweighs the benefit to employees afforded by periodic checks on their condition. Consequently, we conclude that the first sentence of Proposal 12 is not an appropriate arrangement because it excessively interferes with the Agency's right to assign work.

We reach a different conclusion concerning the second sentence of Proposal 12. The sentence covers employees assigned to work in enclosed areas without either mechanical or natural ventilation. It is obvious, in this regard, that working in enclosed locations lacking ventilation is intrinsically dangerous. As the risks inherent in such assignments are clear and apparent, we find, consistent with the Union's assertion, that the requirement to assign another employee nearby is an arrangement, within the meaning of section 7106(b)(3), for employees adversely affected by the assignment of hazardous work.

It is also clear and apparent that employees who are directed by management to work in areas without mechanical or natural ventilation would benefit from having assistance nearby in case they become disabled as a result of the assignment. Further, the benefit to such employees could be substantial because someone with the appropriate equipment would be nearby to rescue the worker and eliminate or reduce the chance of injury. In addition, unlike the first sentence of Proposal 12, even temporary assignments in such areas involve great risk to employees.

On the other hand, as the Agency asserts, the requirement to assign an employee nearby imposes a burden during a period when it is obligated to reduce staffing. However, in our view, this burden is more than offset by the likelihood that someone stationed nearby, while an employee is working at a dangerous location, could prevent the employee's injury or death. Moreover, we have no basis on which to conclude that such hazardous assignments occur frequently. Therefore, we conclude that the benefit afforded employees by the second sentence of Proposal 12 outweighs the burden it imposes on management's rights. Accordingly, we find that the second sentence does not excessively interfere with management's rights under section 7106(a)(2)(B) and section 7106(b)(1) to assign work and determine the number of employees assigned to a work project. As the second sentence of Proposal 12 does not excessively interfere with management's rights, it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. See SSA, Dunbar Branch Office 37 FLRA at 358-61.

We note our dissenting colleague's position that we have created an appropriate arrangement analysis that is unsupported by the record. Our colleague points out, in this connection, that the record before us does not address certain matters that could inform our consideration of the proposal. Although we do not necessarily agree that information concerning such matters would affect disposition of this case, we agree, of course, that the record does not contain argument regarding them. Indeed, we doubtless could identify, here and in almost all other cases, even more items, with varying relevance, that have not been addressed. However, in our view, the question before us is not whether particular items of information have been provided. Instead, the question is whether the record is sufficient to determine whether the proposal is negotiable as an appropriate arrangement. We believe that it is. In this regard, two of the factors on which our analysis rests--the inherent danger to employees posed by the covered assignments and the benefits accruing to employees from the proposal--are not even disputed by the Agency. Moreover, the Agency's assertion that the proposal would abrogate the Agency's right to assign employees to work in enclosed spaces is refuted by the plain wording of the proposal. Nothing in the proposal, as plainly worded or interpreted by the Union, affects the Agency's right to assign work to be accomplished in enclosed spaces unless those spaces lack natural or mechanical ventilation.

In these circumstances, we find the record adequate on which to conclude that the second sentence of Proposal 12 is negotiable as an appropriate arrangement.

IX. Proposal 13

Article 27, Section 4

In the case of handicapped employees who, with reasonable accommodation, cannot perform the principle [sic] duties of his/her position, the Employer shall temporarily assign the employee to other available work for a period of no less than one year. Such assignments may be made without regard to the provisions of Article 18 (Temporary Promotions and Details). In the meantime, the Employer will encourage the employee to update his/her personnel file and will assist the employee in identifying other jobs that he/she can perform. If a vacancy exists whose duties the employee can perform with or without reasonable accommodation, selection of the employee is mandatory. Waiver of X-118 qualifications is also mandatory for placement at the same or lower grade when the employee can perform the principle [sic] duties of the job with or without reasonable accommodation. If a vacancy cannot be located, the employee shall be retained on the payroll until OPM makes a final decision on the employee's application for disability retirement, assuming the employee submits such an application.

[Only the underscored sentences are in dispute; brackets in original.]

A. Positions of the Parties

The Agency contends that Proposal 13 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. Asserting that "management's right to assign employees encompasses both the right to determine the requirements and qualifications necessary to perform a particular job task and the right to determine which employees meet those qualifications[,]" the Agency contends that the first disputed sentence of Proposal 13 also directly interferes with its right to assign employees under section 7106(a)(2)(A) of the Statute. Statement of Position at 16. In this regard, the Agency points out that the first sentence requires management temporarily to assign employees with handicapping conditions to other work for a period of no less than 1 year, "without regard to the employee's qualifications or the unreasonableness of such an accommodation." Id. at 15.

The Agency asserts that the proposal's second disputed sentence also directly interferes with its right to select under section 7106(a)(2)(C) because, under that sentence, it would be precluded from filling positions with qualified applicants as long as employees with handicapping conditions are available, regardless of their qualifications. The Agency maintains that the last disputed sentence is nonnegotiable because it is inconsistent with 5 C.F.R. § 831.501(d), a Government-wide regulation.(8) In the Agency's view, the last sentence conflicts with that regulation by preventing it from separating an employee who has applied for disability retirement "until the Office of Personnel Management either approves or disapproves the employee's application for disability retirement." Id. at 17.

The Union states that the Agency is "required by law to reasonably accommodate handicapped employees." Petition for Review at 4. According to the Union, the first disputed sentence of Proposal 13 "recognizes that alternative work may or may not be available, but if it is, it shall be offered to the employee for at least a year." Id. at 4-5. The Union maintains that the Agency's position disregards its obligations to employees with handicapping conditions under the Rehabilitation Act (the Act), 29 U.S.C. § 791.

B. Analysis and Conclusions

Initially, we reject the Union's assertion that Proposal 13 would merely ensure that the Agency fulfills its obligations under the Act. We note, in this connection, that the Act's implementing regulations obligate Federal agencies to give "full consideration" to, among other matters, the placement of "qualified" persons with handicapping conditions. See 29 C.F.R. § 1613.703. Agencies also are obligated to make reasonable accommodation to the limitations of qualified employees with handicapping conditions, unless the agencies demonstrate that to do so would impose undue hardship. See 29 C.F.R. § 1613.704. See also U.S. Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 42 FLRA 1186, 1192 (1991).

Unlike the regulations, the first two disputed sentences of Proposal 13 mandate the reassignment of employees with handicapping conditions. In particular, the first sentence requires the Agency to assign such an employee, who can no longer fulfill the requirements of his or her position with reasonable accommodation, to perform any available work for a period no shorter than 1 year. The second sentence directs that management reassign an employee with a handicapping condition to a vacancy, if the employee can perform the duties of the position, either with or without reasonable accommodation. Furthermore, the sentences require accommodation to employees' handicaps regardless of whether the accommodations would impose undue hardships on Agency operations. Based on our comparison of the first two disputed sentences of Proposal 13 with the Act's implementing regulations, we reject the Union's assertion that those sentences reflect the Agency's obligations under the Act. We do not base a negotiability determination on a union's interpretation of a proposal that is inconsistent with the proposal's plain wording. See, for example, American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, Branch Office, Hemet, California, 46 FLRA 1152, 1156 (1993).

Turning to the Agency's argument that the first two disputed sentences of Proposal 13 directly interfere with management's rights to assign employees and work, we note that the sentences are substantively similar to Proposal 5 in American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 258-62 (1990) (Portsmouth). The proposal in Portsmouth required the agency to assign certain employees to positions or assign them work compatible with their disabilities when management determined that the employees were physically incapable of performing in their current positions. We found that the proposal directly interfered with management's right to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute. See also International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 36-40 (1990) (IFPTE). For the reasons more fully explained in Portsmouth and IFPTE, the first and second disputed sentences of Proposal 13 directly interfere with the Agency's rights to assign employees and work.

We also find that the second disputed sentence directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute, but not for the reasons stated by the Agency. The Agency contends, in this regard, that it would be required to fill vacancies with available employees with handicapping conditions, regardless of their qualifications for the positions. Management's right to select includes the right to determine the qualifications, skills, and abilities needed to perform the work of a position and to determine whether applicants possess such qualifications, skills, and abilities. See Association of Civilian Technicians, New York State Council and U.S. Department of Defense, National Guard Bureau, State of New York, Division of Military and Naval Affairs, 45 FLRA 17, 20 (1992) (Division of Military and Naval Affairs). The second sentence requires management to place employees with handicapping conditions in vacant positions which encompass duties the employees "can perform with or without reasonable accommodation." Consistent with its plain wording, we conclude that, under the sentence, management retains discretion to determine what qualifications, skills, and abilities are necessary to perform the work of a position and to decide whether the employee has the requisite qualifications skills and knowledge necessary to perform that work, with or without reasonable accommodation.

In addition to the right to determine qualifications, the right to select under section 7106(a)(2)(C) includes the right to make selections from any appropriate source. By its terms, the second disputed sentence mandates the selection of an employee with a handicapping condition for any existing vacancy, the duties of which the employee can perform with or without reasonable accommodation. We find that the sentence requires the Agency to select such an employee for a vacancy when that employee meets the criteria in the sentence and prevents the Agency from filling the position from any other appropriate source. As the sentence requires that management fill certain vacancies from a single appropriate source, it directly interferes with management's right to select from any appropriate source under section 7106(a)(2)(C). See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Office of Chief Counsel, Washington, D.C., 45 FLRA 429, 435 (1992).

The Union does not specifically assert that the first and second disputed sentences of Proposal 13 are appropriate arrangements under section 7106(b)(3) of the Statute. However, as the two sentences are substantially similar to Proposal 5 in Portsmouth, we will consider the issue in order to avoid the anomaly of conflicting results in similar cases. See, for example, Customs Service, 46 FLRA at 706.

Applying the principles established in KANG, we find that the two disputed sentences are arrangements for employees with handicapping conditions who are adversely affected by management's exercise of its right to assign employees within the meaning of section 7106(b)(3) of the Statute. The determination by management that an employee is no longer physically qualified to perform the work of his/her assigned position has an immediate and obvious adverse effect on the employee. The employee can no longer hold that position, and a reasonably foreseeable adverse effect is a reduction in pay or even loss of employment. See Portsmouth, 37 FLRA at 260.

The first disputed sentence requires that management assign an employee with a handicapping condition to perform "other available work for a period of no less than one year." The sentence provides significant benefits to those employees by preventing their loss of pay or employment for a minimum of 1 year if there is work available for them to perform. On the other hand, the benefits result from severe restrictions on the Agency's rights to assign employees and work. In particular, under this sentence, the Agency would be required to provide the employee with work for a period of 1 year, even if the employee proved unable to perform the available work. Balancing the benefit afforded to employees by the first disputed sentence against the burden imposed on management's right to assign employees by requiring that assignments be continued for a minimum of 1 year regardless of whether the affected employee can perform the work, we find that the burden on management's right outweighs the benefit to employees. Accordingly, the first disputed sentence excessively interferes with management's right to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute and is nonnegotiable.

The second disputed sentence of Proposal 13 specifically references the assignment of employees with handicapping conditions to vacancies "whose duties the employee can perform with or without reasonable accommodation." In examining the competing interests of management and employees, we note that this sentence, like the first disputed sentence, affords employees significant benefits. Furthermore, under this sentence, management retains authority to determine that the employee is capable of performing the work. In this connection, we note that the Agency does not dispute the requirement in Proposal 13 that it waive qualification requirements contained in the Office of Personnel Management's X-118 Qualification Standards when reassigning employees with handicapping conditions. As the Agency has agreed to waive the X-118 qualification requirements and, by the plain wording of the sentence, retains the right to determine whether employees "can perform," we find that the degree to which the second disputed sentence interferes with the Agency's right to assign employees and work is limited. See Portsmouth, 37 FLRA at 260-62.

As to the Agency's right to select under section 7106(a)(2)(C), the Authority has found that proposals providing for management to fill vacancies with employees who have been terminated, or are threatened with termination, because of reductions-in-force or technological changes afford those employees significant benefits. See, for example, id. 37 FLRA at 256. As the employees with handicapping conditions, covered by the second disputed sentence, are likewise threatened with termination because matters beyond their control prevent them from performing acceptably in their current positions, we find the sentence also provides these employees with significant benefits. On the other hand, the burden imposed on management's right to select is limited. Management is obliged only to place an employee in a vacancy the duties of which, in management's judgment, the employee can perform. Furthermore, we note that the Agency has not alleged that the second sentence requires the filling of a vacancy without regard to whether management has decided to fill the position. Finally, we note that the second disputed sentence is in keeping with the Federal policy embodied in the Act and implementing regulations requiring agencies to make reasonable accommodations for their employees with handicapping conditions.

Balancing the significant benefit afforded to employees against the burden imposed on management's rights to assign employees, assign work, and select, we find that the benefit to employees outweighs the burden on management's rights. Accordingly, we conclude that the second sentence does not excessively interfere with the exercise of management's rights and is an appropriate arrangement under section 7106(b)(3) of the Statute.

The final disputed sentence requires that management retain employees with handicapping conditions on the payroll pending final disposition by the Office of Personnel Management of their applications for disability retirement. In International Association of Machinists and Aerospace Workers Union and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 726-27 (1988) (Bureau of Engraving), the Authority examined a proposal that required the agency to retain disabled employees, who had submitted applications for disability retirement, on leave without pay until final disposition of their applications. The Authority found that the proposal was inconsistent with 5 C.F.R. § 831.501(d), a Government-wide regulation which provides that "[a]n employee's application for disability retirement shall not preclude or delay any other appropriate personnel action by the employing agency." The Authority noted that, under the regulation, "an agency cannot be required to delay taking a personnel action, such as an involuntary separation, against an employee merely because that employee has applied for disability retirement." Bureau of Engraving, 33 FLRA at 726. As the final disputed sentence of Proposal 13 requires the Agency to retain applicants for disability retirement on the payroll pending disposition of their applications, it likewise is inconsistent with 5 C.F.R. § 831.501(d) and nonnegotiable under section 7117(a)(1) of the Statute. Furthermore, because the last sentence is inconsistent with a Government-wide regulation, it cannot be an appropriate arrangement under section 7106(b)(3). See, for example, National Association of Government Employees, Locals R14-22 and R14-89 and U.S. Department of the Army, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 45 FLRA 949, 970 (1992).

In sum, the first sentence of Proposal 13 excessively interferes with management's right to assign employees and is nonnegotiable. The second disputed sentence of the proposal is negotiable as an appropriate arrangement. The final disputed sentence of the proposal is nonnegotiable.

X. Proposal 14

Article 31, Section 3

No action will be taken against an employee on an ill-found [sic] basis, such as upon rumors and gossip.

A. Positions of the Parties

The Agency contends that Proposal 14 directly interferes with its right to discipline by restricting "the type of evidence [it] may use to establish that discipline is warranted." Statement of Position at 18. In the Agency's view, "[t]he decision to initiate a disciplinary action based upon available evidence, whatever the source, is committed to management's discretion under section 7106(a)(2)(A) of the Statute." Id.

The Union asserts that Proposal 14 "simply recognizes restrictions on management's right to discipline which already exist[] in governing caselaw [sic] and regulations." Petition for Review at 5.

B. Analysis and Conclusions

Proposals or provisions that restrict the evidence that an agency may rely on to support a disciplinary action directly interfere with the agency's right to discipline employees under section 7106(a)(2)(A) of the Statute. See, for example, Patent and Trademark Office, 47 FLRA at 63-64, and American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1047-50 (1988) (Provisions 20 and 22), (Naval Weapons Station, Concord), rev'd as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989). In particular, proposals that prevent use of "anonymous information, confidential statements, and similar information at any stage of the disciplinary process []" directly interfere with the right to discipline. Id. at 1048. As Proposal 14 would also prevent use of certain categories of information in initiating discipline, it, likewise, directly interferes with that right for the reasons more fully explained in Naval Weapons Station, Concord.

The Union does not argue that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3). Accordingly, we do not reach that question. We note, however, that in Naval Weapons Station, Concord, we found that Provisions 20 and 22, which precluded the agency from relying on oral statements from employees, excessively interfered with management's right to discipline. Id., 32 FLRA at 1049-50.

XI. Proposal 15

Article 31, Section 4

No employee will be subject to disciplinary or adverse action as a result of conflicting orders so long as the last order is followed. No employee will be subject to disciplinary or adverse action for refusing to obey an unlawful order or an order which would require the employee to place himself/herself in danger of death or serious bodily harm.

[Only the underscored portions are in dispute.]

A. Positions of the Parties

The Agency contends that the second sentence of the proposal is nonnegotiable because it is inconsistent with 29 C.F.R. § 1960.46(a), a Government-wide regulation.(9) The Agency contends that the underscored portion of Proposal 15 directly interferes with its right to discipline under section 7106(a)(2)(A) of the Statute by "precluding discipline in specific predetermined situations[.]" Statement of Position at 20. The Agency points out that, in United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1172-73 (1992) (Corps of Engineers), petition for review dismissed sub nom. United Power Trades Organization v. FLRA, No. 92-70520 (9th Cir. Aug. 26, 1992), the Authority found that a proposal, which insulated employees from discipline for following the last of conflicting orders, directly and excessively interfered with management's right to discipline.

The Union argues that the first disputed sentence of Proposal 15 is "an appropriate arrangement for employees adversely affected by conflicting orders." Petition for Review at 5. According to the Union, the second sentence repeats "what is already required" by law and regulation. Id.

B. Analysis and Conclusions

1. The First Disputed Sentence

The Agency asserts, without contradiction by the Union, that the first sentence is intended to have the same effect as the first sentence of Proposal 10 in Corps of Engineers. In that case, we determined that the first sentence of the disputed proposal covered situations where an employee could not comply with one order without violating another. We interpreted the sentence as precluding management from disciplining an employee, who complied with the last order received, for failing to follow the first order. See id., 44 FLRA at 1172.

We found, in Corps of Engineers, that the disputed portion of the proposal directly and excessively interfered with management's right to discipline under section 7106(a)(2)(A) of the Statute by preventing the agency from disciplining an employee "who fails to follow a supervisory order if the employee receives a subsequent conflicting order and the employee carries out the subsequent order." Id. As the Union neither contends that the first sentence of Proposal 15 is distinguishable from the disputed proposal in Corps of Engineers, nor suggests any grounds for reassessing the conclusion reached in that case, we find, for the reasons more fully explained in Corps of Engineers, that the first sentence of Proposal 15 is nonnegotiable because it directly and excessively interferes with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute.

2. The Second Disputed Sentence

Initially, we reject the Union's assertion that the second sentence repeats "what is already required" by law and regulation. Petition for Review at 5. Under 29 C.F.R. § 1960.46(a), an employee is immune from discipline for refusal to obey an order, based on safety and health considerations, in a situation where the employee reasonably believes that, under the circumstances, the task presents an imminent risk of death or serious bodily harm and there is insufficient time to seek effective redress through normal hazard reporting and abatement procedures. The second sentence of Proposal 15 affords immunity from discipline when an employee does not comply with an order "which would require the employee to place himself/herself in danger of death or serious bodily harm." Clearly, the second sentence does not simply mirror section 1960.46(a).

Although the second disputed sentence of the proposal does not mirror 29 C.F.R. § 1960.46(a), we reject the Agency's argument that the second sentence is nonnegotiable because it is inconsistent with the regulation. Although the proposal affords employees greater immunity from discipline than provided by section 1960.46(a), nothing in the regulation precludes agencies from granting employees such additional immunity. That is, although the regulation prohibits the Agency from disciplining employees in certain circumstances, it does require the Agency to discipline employees in other situations. As such, we will no longer follow the contrary holding in American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1260-62 (1988).

However, we conclude that the second disputed sentence of Proposal 15 directly interferes with the Agency's right to discipline employees, as alleged by the Agency. It is clear, in this regard, that proposals that prevent management from disciplining employees for specified conduct directly interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute. For example, Corps of Engineers, 44 FLRA at 1172. The second disputed sentence prevents the Agency from disciplining an employee who fails to follow a supervisory order "which would require the employee to place himself/herself in danger of death or serious bodily harm." By preventing management from disciplining an employee in those circumstances, the second sentence prevents the Agency from taking disciplinary action against an employee for failing to obey an order. As such, the second sentence directly interferes with management's right to discipline under section 7106(a)(2)(A). International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 135-37 (1987).

Assuming that the second sentence of Proposal 15 constitutes an arrangement, we find that it excessively interferes with the Agency's right to discipline. As noted above, employees are provided immunity from discipline, under applicable regulations, for refusing to obey orders in situations where they reasonably believe that following such orders would result in death or serious injury and there is insufficient time to seek redress. Also as noted above, the second disputed sentence of Proposal 15 does not simply mirror that regulatory immunity. In particular, the proposal neither requires a reasonable belief that harm would result from complying with the disputed order nor limits its application to situations where there is insufficient time to seek redress for the problem through normal procedures. It is reasonable to conclude, therefore, that the proposal would provide employees with immunity from discipline in situations where there is no reasonable belief that harm would result from complying with management's orders and/or other procedures are available to timely redress the perceived problem.

We conclude that, by precluding the Agency from disciplining employees in these situations, the proposal would provide a significant benefit to employees but only as a result of severe and unwarranted restrictions on the Agency's right to discipline employees. As such, on balance, we conclude that the second disputed sentence of Proposal 15 excessively interferes with the Agency's right to discipline employees and is nonnegotiable.

XII. Proposal 16

Article 33, Section 1

Management agrees to comply with all provisions of OMB Circular A-76 (and with any supplements or superseding circularly [sic] or directives) and with this Negotiated Agreement. Before deciding to contract out, Management shall conduct a cost study which takes into account the savings to be achieved from alternate methods such as furloughs or attrition. This study is in addition to the MEO.

[Only the underscored sentences are in dispute.]

A. Positions of the Parties

The Agency contends that Proposal 16 is nonnegotiable because it imposes a substantive limitation on management's right, under section 7106(a)(2)(B) of the Statute, to make determinations with respect to contracting out. The Agency further asserts that the proposal does not constitute an appropriate arrangement under section 7106(b)(3) because there is no indication "how a repetitive, financially burdensome cost study would benefit a [U]nion member." Statement of Position at 23. The Agency points out that:

Under OMB Circular A-76 only the most efficient and effective organization (MEO) study is compared to outside bids to determine whether or not the function will be contracted out. Therefore, any additional studies would have no useful purpose in determining whether a function should be contracted out.

Id.

The Union maintains that Proposal 16 "represents an appropriate arrangement for employees affected by the threat of having their jobs contracted out." Petition for Review at 5.

B. Analysis and Conclusions

Proposals or provisions that establish substantive criteria governing the exercise of a management right directly interfere with the exercise of that right. See, for example, Customs Service, 46 FLRA at 708. Proposal 16 requires that, before deciding to contract out work, management must conduct a cost study that takes into account savings obtainable from specified alternative procedures. The proposal expressly states that this cost study is in addition to that prescribed by OMB Circular A-76. By establishing such a requirement, the proposal constitutes a substantive limitation on the Agency's exercise of its right to contract out. Consequently, Proposal 16 directly interferes with the right to contract out under section 7106(a)(2)(B) of the Statute. See National Federation of Federal Employees, Local 1214 and U.S. Department of the Army, Headquarters, United States Army Training Center and Fort Jackson, Fort Jackson, South Carolina, 45 FLRA 1222, 1225 (1992).

The Union argues, without further elaboration, that Proposal 16 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute "for employees affected by the threat of having their jobs contracted out." Petition for Review at 5. We have previously found, applying the test set out in KANG, that other proposals addressing contracting out are arrangements, noting that decisions to contract out "can result in significant adverse effects on unit employees. Among other things, implementation of such decisions can result in employee lay offs and reassignments." Michigan ANG, 43 FLRA at 366-67. See also Army Information Systems Command, 42 FLRA at 1116-17. Consistent with these cases, we will assume that Proposal 16 constitutes an arrangement for employees adversely affected by management's decision to contract out.

Although the proposal requires an additional cost study for management to consider prior to deciding to contracting out, the Union does not demonstrate how the proposal provides benefits to employees that outweigh the burden imposed on the Agency's right to contract out. For example, the Union has not established that the additional cost study is other than duplicative of the MEO study. Further, even assuming that the cost study the Union seeks will provide additional data, the Union has not shown that this data will afford employees a benefit that would outweigh the burden on management in acquiring and analyzing the additional information. The parties bear the burden of creating a record on which we can base a negotiability determination. Division of Military and Naval Affairs, 45 FLRA at 21. As the record does not provide sufficient information to determine whether Proposal 16 constitutes an appropriate arrangement, and as it directly interferes with management's right to make determinations with respect to contracting out under section 7106(a)(2)(B), Proposal 16 is nonnegotiable.

XIII. Proposal 17

Article 33, Section 3

Pursuant to OMB Circular A-76, it is agreed that activities will not be contracted out solely to meet personnel ceilings or to avoid salary limitations.

A. Positions of the Parties

The Agency contends that Proposal 17 directly interferes with its right to make determinations with respect to contracting out under section 7106(a)(2)(B) of the Statute. The Agency maintains that the proposal "goes beyond contractual recognition of any external limitations and imposes substantive limitations in and of itself." Statement of Position at 24.

The Union asserts that Proposal 17 "incorporates what is already required in OMB Circular A-76." Petition for Review at 5. In the Union's view, the Agency "must exercise its rights in accordance with applicable law, and Circular A-76 is one of those applicable laws." Id.

B. Analysis and Conclusions

Proposal 17 would require the Agency to comply with certain prohibitions on contracting out contained in OMB Circular A-76.(10) It is clear and undisputed, in this regard, that incorporation of this proposal in the parties' negotiated agreement would allow the Union to enforce the prohibitions in the Circular through the negotiated grievance procedure.

In U.S. Department of the Treasury, Internal Revenue Service v. FLRA, No. 91-1573 (D.C. Cir. June 29, 1993), slip op. at 9 (IRS v. FLRA), the Court held, as relevant here, that OMB Circular A-76 is "a [G]overnment-wide rule or regulation under section 7117(a)" of the Statute. The Court also held that "[t]he regulation sets out an exclusive method of resolving any claims regarding its implementation and forbids negotiation or arbitration over the process or decisions issuing from the process." Id. at 10 (footnote omitted). The Court determined that "collective bargaining over the method for resolving disputes concerning application of the Circular and arbitration of claimed 'violations' of the Circular would both be inconsistent with the terms of the Circular." Id. at 9-10. Accordingly, the Court concluded that proposals requiring agencies to comply with the requirements of OMB Circular A-76 and subjecting disputes over such compliance to resolution under a negotiated grievance procedure are nonnegotiable under section 7117(a) of the Statute because they are inconsistent with a Government-wide regulation.

We adopt the Court's conclusion that Circular A-76 is a Government-wide regulation and that proposals subjecting disputes over compliance with the Circular to resolution under a negotiated grievance procedure are nonnegotiable. Previous decisions to the contrary will no longer be followed. Accordingly, as Proposal 17 would permit the parties to resolve alleged violations of certain provisions of Circular A-76 under the negotiated grievance procedure, it is nonnegotiable.

XIV. Proposal 18

Article 33, Section 7

In the event that the Employer decides that the unit work will be accomplished by contract, it is agreed that no bargaining unit employee will be under the supervision of a person who is not an employee of the Federal Government.

A. Positions of the Parties

The Agency asserts that Proposal 18 directly interferes with management's rights to assign work and to determine the personnel who will conduct its operations.

The Union contends that Proposal 18 reflects the requirements of 5 U.S.C. § 2105.(11)

B. Analysis and Conclusions

In Army Information Systems Command, 42 FLRA at 1120-22, we found that a proposal that prevented the agency from assigning employees to the supervision of non-Federal personnel directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute. Proposal 18 also prohibits management from assigning employees to non-Federal supervisors. Consequently, for the reasons more fully stated in Army Information Systems Command, it directly interferes with the Agency's right to assign work. In light of our conclusion, we need not address the Agency's argument that the proposal also interferes with its right to determine the personnel who will conduct its operations.

In Army Information Systems Command, we also rejected the union's argument that the disputed proposal reflected a legal requirement. We noted that "there is nothing in 5 U.S.C. § 2105 which precludes an employee from being under the direct supervision of a contractor who is in turn working under the direction [of] a Federal employee." 42 FLRA at 1122. Consequently, for the reasons stated in Army Information Systems Command, the Union's reliance on 5 U.S.C. § 2105 is misplaced. As the proposal directly interferes with the right to assign work, and as the Union does not assert that it is intended to be an appropriate arrangement under section 7106(b)(3), Proposal 18 is nonnegotiable.

XV. Proposal 19

Article 33, Section 8

The Agency recognizes the "right of first refusal" required by OMB Circular A-76, which provides that the contractor will grant those Federal employees displaced by direct result of such contract, the right of first refusal of employment openings created by the contractor. This applies only to job openings for which such displaced employees are qualified and does not apply when such employees would otherwise be prohibited from such employment by the Government post-employment conflict of interest standards. Right of first refusal will be offered in order of service computational [sic] dates.

[Only the underscored sentence is in dispute.]

A. Positions of the Parties

The Agency acknowledges that OMB Circular A-76 requires inclusion of a right of first refusal provision for displaced Government employees in contracts awarded to private entities. However, the Agency argues that we should dismiss the disputed sentence of Proposal 19 because the Agency "is permitted no role in the selection process and exercises no discretion in the contractor's consideration of employees." Statement of Position at 26.

The Union asserts that Proposal 19 reflects "the requirements of [OMB] Circular A-76 and also constitutes [an] appropriate arrangement[] for employees affected by contracting out." Petition for Review at 6.

B. Analysis and Conclusions

Proposal 19 addresses the requirement in Circular A-76 that agency contracts with outside contractors provide unit employees who are displaced as a result of the contracts with a "right of first refusal" for positions with the contractors.(12) The disputed portion of the proposal prescribes the order in which the right will be offered.

We conclude that the disputed portion of the proposal is not severable from the remainder of the proposal. That is, we conclude that the order in which the right of first refusal is to be offered displaced employees is not severable from the obligation under Circular A-76 to offer the right in the first place. Indeed, the Union states specifically that the proposal "represents the requirements of Circular A-76 . . . ." Petition for Review at 6. Accordingly, we conclude that, under Proposal 19, allegations both that the Agency failed to include in applicable contracts a right of first refusal, as required by the Circular, to be offered in a particular order, as required by the disputed sentence in the Proposal, would be grievable under the negotiated grievance procedure. Accordingly, for the reasons discussed in connection with our analysis of Proposal 17, we find that this proposal is inconsistent with the Circular, a Government-wide regulation, and is nonnegotiable under section 7117(a)(1) of the Statute. Because Proposal 19 is inconsistent with a Government-wide regulation, we do not address the Union's argument that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. See, for example, International Federation of Professional and Technical Engineers and U.S. Department of the Navy, Marine Corps Security Force Battalion, Pacific, 47 FLRA 1086, 1090 (1993).

XVI. Order

The Agency shall, upon request or as otherwise agreed to by the parties, bargain concerning the first disputed sentence of Proposal 1; Proposals 2 and 6; the last sentence of Proposal 10, which provides for safety training for Union representatives; Proposal 11; the last sentence of Proposal 12, concerning employees working in certain confined or enclosed spaces; and the second disputed sentence of Proposal 13.(13)

The petition for review, as it pertains to the second disputed sentence of Proposal 1; Proposals 3, 4, 5, 7, 8, and 9; all but the last sentence of Proposal 10; the first sentence of Proposal 12; the first and third disputed sentences of Proposal 13; and Proposals 14, 15, 16, 17, 18, and 19 is dismissed.

Member Armendariz, Dissenting as to Proposal 12 Concurring as to Proposal 15

I respectfully dissent from my colleagues' opinion that the second sentence of proposal 12 is an appropriate arrangement. The Union asserts without further explanation that "[Proposal 12] is an appropriate arrangement for employees assigned work in remote areas or enclosed spaces." Petition for Review at 4. Even assuming that the proposal is an arrangement within the meaning of section 7106(b)(3) of the Statute, I am unable, based on the record, to determine whether the second sentence of Proposal 12 is an appropriate arrangement. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. International Association of Firefighters and U.S. Department of the Navy, Naval Station Treasure Island, San Francisco, California, 37 FLRA 836, 839 (1990). A party failing to meet this burden acts at its own peril. Id.

In my view, the record is insufficient to allow a determination to be made as to whether the proposal is an appropriate arrangement. In this connection, the record with respect to the second sentence of Proposal 12, quoted in its entirety above, is completely void of argument or evidence as to how this proposal would benefit adversely effected employees assigned to work in the spaces subject to the proposal. The Union has a burden and had an opportunity to identify any number of matters in this regard that could have informed the Authority's consideration of this proposal. It did not satisfy this burden and it did not seize upon this opportunity. For example, the Union could have set forth in the record, inter alia: (1) the likelihood, gravity, imminence or risk of injury associated with work done in the spaces subject to the proposal; (2) current management safety measures taken with respect to the work done in the spaces subject to the proposal; (3) the size and accessibility of the spaces subject to the proposal; (4) the frequency of assignments in the spaces subject to the proposal; (5) the average length of assignments in the spaces subject to the proposal; (6) the proximity of the spaces subject to the proposal to populated work areas; or (7) the likelihood that someone stationed nearby the spaces subject to the proposal could provide aid to an employee in distress or could prevent the death or injury of an employee in distress as a result of working in the spaces subject to the proposal. In my view, evidence of this character is necessary in order to come to a reasoned conclusion as to whether or not a proposed arrangement is appropriate.

In this regard, the Majority does not deny that such evidence would be relevant in determining whether or not a proposed arrangement is appropriate. Rather, the Majority states that "[it] doubtless could identify, here and in almost all other cases, even more items, with varying relevance, that have not been addressed [by the Union]." Majority Decision, Slip op. at 24. The Majority, while recognizing that such evidence would be relevant, concludes that the arrangement is appropriate based on a record that fails to provide even a scintilla of evidence as to the nature and extent of the benefits that the proposal would afford to employees assigned to work in such spaces. Notwithstanding this complete lack of record evidence, the Majority concludes that: (1) "[i]t is obvious . . . that working in enclosed locations lacking ventilation is intrinsically dangerous"; (2) "the risks inherent in such assignments are clear and apparent"; (3) "[i]t is also clear and apparent that employees . . . would benefit"; (4) "the benefit to . . . employees could be substantial . . . ." Id. at 24. In my view, such an approach is inappropriate.

Inasmuch as the second sentence of Proposal 12 directly interferes with the Agency's right to assign work and determine the number of employees assigned to a work project and the Union has not provided a basis for determining whether the proposal is negotiable as an appropriate arrangement, I would find that the proposal is nonnegotiable.

I concur in the result reached by my colleagues that Proposal 15 is nonnegotiable.




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

1. The separate opinion of Member Armendariz, dissenting, in part, with respect to Proposal 12 and concurring with respect to Proposal 15 appears at the end of this decision.

2. In its statement of position, the Agency withdrew its allegations of nonnegotiability concerning Article 16, section 6; Article 22, section 10b; and Article 33, section 4. Additionally, the Agency stated that it would withdraw its allegations as to Article 2, section 5; Article 14, section 7; Article 29, section 3; and Article 32, section 5 if these proposals were interpreted in a specified manner. The Union states that "its intent is as specified by the Agency and so we will treat these allegations of non-negotiability as withdrawn." Reply Brief at 1. Accordingly, we will not consider these proposals further.

3. FPM Chapter 630, subchapter 3-4.b 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. Supervisors should insure that annual leave is scheduled for use so as to prevent any unintended loss at the end of the leave year.

4. The Agency cites FPM chapter 630, subchapter 11-5.a. However, since September 1981, excused absence for blood donations has been governed by FPM chapter 630, subchapter 11-6.c.(1), which provides:

(1) Blood Donation. Employees who make blood donations may be granted excused absence to travel to the donation site and/or to recover.

5. 29 C.F.R. § 1960.30(c) provides, in pertinent part:

(c) The official in charge of the establishment shall promptly prepare an abatement plan with the appropriate participation of the establishment's Safety and Health Official or a designee, if in the judgment of the establishment official the abatement of an unsafe or unhealthful working condition will not be possible within 30 calendar days. Such plan shall contain an explanation of the circumstances of the delay in abatement, a proposed timetable for the abatement, and a summary of steps being taken in the interim to protect employees from being injured as a result of the unsafe or unhealthful working condition.

6. 29 C.F.R § 1960.58 provides, in pertinent part, that:

. . . on appointment of an employee to a collateral duty position or to a committee, each agency shall provide training for collateral duty safety and health personnel and all members of certified occupational safety and health committees commensurate with the scope of their assigned responsibilities.

7. 29 C.F.R. § 1960.59(b) provides, as pertinent, that:

(b) Occupational safety and health training for employees of the agency who are representatives of employee groups, such as labor organizations which are recognized by the agency, shall include both introductory and specialized courses and materials that will enable such groups to function appropriately in ensuring safe and healthful working conditions and practices in the workplace and enable them to effectively assist in conducting workplace safety and health inspections.

8. 5 C.F.R. § 831.501 provides, in pertinent part:

(d) An employee's application for disability retirement shall not preclude or delay any other appropriate personnel action by the employing agency.

9. 29 C.F.R. § 1960.46(a) provides, in pertinent part:

(a) The head of each agency shall establish procedures to assure that no employee is subject to restraint . . . because of the exercise by such employee . . . of any right afforded by section 19 of the Act, Executive Order 12196, or this part. These rights include, among other[s], the right of an employee to decline to perform his or her assigned task because of a reasonable belief that, under the circumstances the task poses an imminent risk of death or serious bodily harm coupled with a reasonable belief that there is insufficient time to seek effective redress through normal hazard reporting and abatement procedures established in accordance with this part.

10. Section 7c(6) of OMB Circular A-76 provides: "[t]his Circular and its Supplement shall not . . .[b]e used to justify conversion to contract solely to avoid personnel ceilings or salary limitations[.]"

11.