49:0176(24)NG - - NTEU, Chapter 243 and Commerce, Patent and Trademark Office - - 1994 FLRAdec NG - - v49 p176



[ v49 p176 ]
49:0176(24)NG
The decision of the Authority follows:


49 FLRA No. 24

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 243

(Union)

and

U.S. DEPARTMENT OF COMMERCE

PATENT AND TRADEMARK OFFICE

(Agency)

0-NG-2137

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 4, 1994

_____

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 by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of nine provisions of a collective bargaining agreement that were disapproved by the Agency head under section 7114(c) of the Statute.(2)

For the reasons set forth below we conclude as follows. Provisions 1 and 2, which concern determinations that an employee is improperly attired, are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute. Provision 3, which provides for the development of a joint labor-management plan to attempt to resolve inequities in the distribution of employees by race, sex, and age in divisions or equivalent units, is negotiable as a procedure under section 7106(b)(2) of the Statute. Provision 4, which prohibits supervisors from soliciting pledges and contributions for charitable and civic programs from the employees under their supervision, is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Provision 5, which pertains to referring employees for counseling concerning workmen's compensation benefits, directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and the record does not provide a basis for determining whether it constitutes an appropriate arrangement under section 7106(b)(3). Similarly, Provision 6, which relates to transporting a sick employee to his or her residence, directly interferes with management's right under section 7106(a)(2)(B) to assign work and the record does not show that it constitutes an arrangement within the meaning of section 7106(b)(3). Consequently, we dismiss the Union's petition for review as to Provisions 5 and 6. The record does not establish that Provision 7, which provides for removing letters of reprimand and written confirmations of oral admonishments from employees' personnel folders, directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and the Agency's contention that this provision is nonnegotiable is set aside. Provisions 8 and 9, which concern the use of official time, are negotiable.

II. Preliminary Matters

The Union filed its petition for review in this case on March 29, 1993. Subsequently, the Authority issued an Order to the parties, which, among other things, noted that the Union had failed to provide a statement of service showing that the Agency head or his designee was served with a copy of the petition. The Order directed the Union to file such a statement of service by April 30, 1993. The Union complied with this Order and provided a statement that it had served a copy of the petition on the Agency head's designee on April 29, 1993. In an Order dated May 14, 1993, the Authority, among other things, noted that the Union had corrected the deficiency in the petition and informed the Agency that its statement of position "must be filed with the Authority 30 days from the date of receipt of this Order."(3) Order at 1. Under a cover letter dated May 12, 1993, the Agency head's designee filed a statement of position. In that statement of position, the Agency states that the Union's response to the Authority's April 16, 1993, Order "contained a certificate of service showing that they had served the Petition for Review on the Agency head designee, Barbara S. Fredericks, on that same day, April 29, 1993." Statement of Position at 3.

In a letter dated June 16, 1993, the Agency head designee requested permission under section 2424.8 of the Authority's Rules and Regulations to file a supplemental submission. In support of its request the Agency states:

In response to the Authority's order, dated April 16, 1993, the Union submitted documentation admitting that it had not served Ms. Barbara S. Fredericks, the Agency Head Designee, until April 29, 1993. This admission has raised the issue of timeliness of the Union's Petition for Review. Therefore, the Agency requests permission to file the attached Motion to address the issue of timeliness.

Under section 2424.8 of the Authority's Rules and Regulations, the Authority will not consider supplemental submissions unless such submissions are requested by the Authority or, upon written request of a party, the Authority in its discretion grants permission to file such submissions. Clearly, the Agency had knowledge of the fact that the Union did not serve the Agency head's designee until April 29, 1993, at the time that it filed its statement of position in this case. The Agency offers no reason in its request as to why it could not have raised the issue of timeliness in its statement of position that it now wishes to raise. Moreover, provided a petition for review is timely filed with the Authority, a failure to properly serve the petition on the affected agency does not raise jurisdictional issues. See Department of Veterans Affairs, Atlanta, Georgia, 47 FLRA at 1118-20. Because the Agency could have raised this issue in its statement of position, we deny the Agency's request to file a supplemental statement. See American Federation of Government Employees, Local 900 and U.S. Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri, 46 FLRA 1494, 1497 (1993) (Army Reserve Personnel Center).

III. Provisions 1 and 2

Article 8 - Employee Rights

Section 8:

[Provision 1]

B. If a complaint is made against an employee because of alleged improper attire, i.e., that which is determined to be improper for official Office duties, the employee shall be notified immediately by the complaining official. If the complaining official and the employee cannot resolve the issue, the matter shall immediately be referred to the appropriate Office Director, Group Director, or equivalent management official. If the employee still disagrees, the matter may immediately be referred to the Personnel Officer, or his/her designee, for a final judgement.

[Provision 2]

C. A determination adverse to the employee by the Personnel Officer or his/her designee means that the employee shall be instructed not to wear that type of attire again and shall be instructed to take reasonable corrective action, if possible, for the remainder of the work day, but shall not be sent home. The Personnel Officer or his/her designee shall counsel the employee that repeated wearing of such improper attire may result in the Office proposing disciplinary action.

A. Positions of the Parties

The Agency argues that these provisions directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute because they require that specific individuals perform specified duties. The Agency disputes the Union's claim that these provisions do not require the named officials to take any action. The Agency contends that such a claim is inconsistent with both logic and the plain meaning of the provisions and that the provisions require the named officials to make determinations regarding the appropriateness of the employee's attire and in the case of the Personnel Officer, or his or her designee, to counsel any employee determined to be improperly attired.

The Union describes these provisions as providing employees with a procedure in which they may refer concerns about allegations that they are improperly attired to another management official for a more objective opinion before they are required to alter their attire. The Union contends that the provisions only designate officials for purposes of referral and do not require those officials to take any action on referral but permit the identified officials to designate others to take action. In addition to a generalized claim that all the provisions included in the petition are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute, the Union makes specific arguments that these provisions constitute an appropriate arrangement.

In this regard, the Union asserts that an employee is adversely affected when management determines to exercise its right to discipline based on a supervisor's judgment that the employee is improperly attired. The Union describes these provisions as seeking to ameliorate the harm done employees faced with such a situation by allowing employees to request a review of the complaining official's opinion of their attire by a higher level management official. The Union contends that determinations of what is appropriate attire can be "subjective, value laden, and culturally biased" and that these provisions afford employees the opportunity to have higher level management officials review such determinations by supervisors. Response at 3. The Union argues that these provisions obligate management to do nothing more than follow a procedure in reaching a final decision concerning what is or is not proper attire and that the impact of these provisions on management's rights to direct employees, assign work, and discipline employees is minimal. Referring to the terms of Provision 1, the Union states that "[d]esignation of the 'appropriate' official is specifically intended to preserve the discretion of management." Id. Additionally, the Union maintains that the provisions permit the designation of someone to act in lieu of the Personnel Officer. Thus, the Union contends that these provisions preserve the Agency's right to designate someone else to perform the required work, as did a portion of Proposal 6 that the Authority found negotiable in New York State Nurses Association and Veterans Administration, Bronx Medical Center, 30 FLRA 706, 716 (1987) (Bronx Medical Center), reversed as to other matters, No. 88-1150 (D.C. Cir. Sept. 27, 1988), decision on remand, 33 FLRA 377 (1988), request for reconsideration denied, 34 FLRA 805 (1990).

The Union argues that the benefit to employees afforded by these provisions outweighs the negative impact on management's rights. The Union asserts that an employee who is determined to be improperly attired is subject to embarrassment, loss of income, good standing, or possibly his or her job and that the provisions would benefit employees by affording them the ability to seek an opinion from higher level management on whether a supervisor's conclusion that they are improperly dressed should be sustained. The Union describes the provisions as permitting "employees to seek an objective opinion from a more objective manager, i.e., the Director of Personnel, as to appropriate attire." Response at 4. Referring to suggestions in various Authority decisions that substitution of terms such as "office" or "Agency" for specific officials would avoid management rights problems in provisions such as these, the Union contends that such a reformulation would render the provisions virtually useless. The Union states that the purpose of these provisions is to provide an employee with an avenue to appeal the decision of his or her supervisor and that because the term "office" or "agency" could mean the supervisor, use of such terms would cause confusion and defeat the purpose of the provisions.

B. Analysis and Conclusions

These provisions are in dispute only insofar as they specify the management officials who will perform the functions identified in the provisions. The right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular duties and work that will be assigned and the particular employees or positions to which the duties and work will be assigned. For example, American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1598 (1993) (SSA, Greenwood); National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980) (Public Debt), aff'd 691 F.2d 553 (D.C. Cir. 1982). This right encompasses the right to assign general continuing duties, to make periodic work assignments to employees, to determine when such assignments will occur, and to determine when the work that has been assigned will be performed. For example, SSA, Greenwood, 46 FLRA at 1598; Public Debt, 3 FLRA at 775. This right also includes the right to determine the particular qualifications and skills needed to perform the work and to make a judgment as to whether a particular employee meets those qualifications. For example, SSA, Greenwood, 46 FLRA at 1598; Public Debt, 3 FLRA at 775. Proposals that require the assignment of specific duties to particular individuals, or preclude management from assigning particular functions to particular individuals, directly interfere with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. 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 (1992) (Fort Bliss); 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, 1428 (1992) (HCFA, Baltimore). Also, proposals that assign to particular officials the authority to designate others to perform specific duties directly interfere with management's right to assign work. Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643, 652 (1988).

It is clear from the Union's statements that these provisions intend that the functions addressed by these provisions will be performed by a higher level management official than the supervisor making the initial determination on the appropriateness of an employee's attire. It is also clear that, under the provisions, that official may not be the supervisor who made the initial determination. Thus, the provisions restrict the Agency's ability to choose the particular individuals who will be assigned the work entailed in the provisions. Because the provisions restrict the Agency's authority to designate officials to determine whether a supervisor's conclusion concerning the appropriateness of an employee's attire should be sustained or to counsel employees in such circumstances, they directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.(4) See, for example, Fort Bliss; HCFA, Baltimore. These provisions are distinguishable from International Federation of Professional and Technical Engineers, Local No. 1 and U.S. Department of the Navy, Norfolk Naval Shipyard, 38 FLRA 1589, 1602-03 (1991) (Proposal 3) (Norfolk Naval Shipyard), where we found negotiable a proposal requiring performance appraisal forms to include a space for endorsement by the "Activity head designee." In Norfolk Naval Shipyard, we noted that under the proposal the "Activity head designee" could be any military officer or civilian official at the activity and, therefore, the proposal did not restrict the Agency's ability to determine the particular agency official to perform the specified task.

The Agency's reliance on Bronx Medical Center is misplaced. On remand from the United States Court of Appeals for the District of Columbia Circuit, the Authority dismissed the petition for review in that case, finding that the agency had no obligation to bargain over conditions of employment of professional medical employees under 38 U.S.C. § 4108(a). New York State Nurses Association and Veterans Administration Medical Center, Bronx Medical Center, 33 FLRA 377 (1988), request for reconsideration denied, 34 FLRA 805 (1990). Thus, Bronx Medical Center has no precedential value. See American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 589, 600 (1991) (Naval Air Station, Whidbey Island).

The Authority established an analytical framework for determining whether proposals that directly interfere with management's rights are nevertheless negotiable because they constitute appropriate arrangements under section 7106(b)(3) of the Statute in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under the framework established, we initially determine whether a proposal constitutes an arrangement. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See id. at 31. If the proposal satisfies the first part of this analysis, we then determine whether the proposed arrangement is appropriate. Under this second part, we examine the competing practical needs of the parties and determine whether the negative impact on management's rights is disproportionate to the benefits that the arrangement confers on employees such that the proposal excessively interferes with management's rights. See KANG, 21 FLRA at 33.

The application of the first part of this analytical framework has been the subject of recent court decisions in National Labor Relations Board v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993) (per curiam) (NLRB v. FLRA); United States Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992) (INS v. FLRA); and United States Department of the Interior Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992) (Minerals Management Service). As expressed in NLRB v. FLRA, the U.S. Court of Appeals for the District of Columbia Circuit concluded that "a prophylactic measure applicable to all employees, instead of being 'tailored to benefit or compensate those employees suffering . . . adverse effects[]'" does not qualify as an arrangement under section 7106(b)(3) of the Statute. NLRB v. FLRA, 3 F.2d at 1198 (quoting Minerals Management Service, 969 F.2d at 1162). In the court's view, in order to qualify as an arrangement that is negotiable under section 7106(b)(3), a proposal must be "'tailored to redress only those employees adversely affected by a management action.'" NLRB v. FLRA, 3 F.2d at 1197 (quoting Minerals Management Service, 969 F.2d at 1162). The U.S. Court of Appeals for the 5th Circuit adopted a similar approach in INS v. FLRA. However, the court emphasized that it does not require that an arrangement "'target in advance the very individual employees who will be adversely affected.'" Minerals Management Service, 969 F.2d at 1163 (quoting United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1071 (D.C. Cir. 1992)). Additionally, the court has noted that it does not hold that the "use of the past tense in the phrase 'adversely affected' creates a temporal wall forbidding any negotiability except as to harm that has already occurred." Minerals Management Service, 969 F.2d at 1163.

As a general proposition, we agree with the courts that under section 7106(b)(3) of the Statute, an arrangement must be tailored to compensate or benefit employees suffering adverse effects flowing from the exercise of management's rights and cannot be so broad in its sweep that it applies to all employees regardless of whether they are likely to be adversely affected by management action that comes within the purview of management's rights. However, we do not believe that we should require proposals presented as appropriate arrangements to be so narrowly tailored that the ability of adversely affected employees to obtain benefits under section 7106(b)(3) of the Statute would be seriously impaired. Such a reading would not give full effect to section 7106(b)(3), which is intended to "enable[] employees adversely affected by an exercise of Section 7106(a) management rights, though entirely proper, to bargain over arrangements appropriate to ease the impact of management's action." Overseas Education Association, Inc. v. FLRA, 876 F.2d 960, 971 (D.C. Cir. 1989). Thus, in order to give full effect to the purpose and intent of section 7106(b)(3), in applying the analytical framework for determining whether a proposal constitutes an arrangement, we will not require that proposals be tailored with surgical precision. While the courts' statements to the effect that arrangements must be tailored to benefit "only" those employees who would be adversely affected by agency actions might be read to require such precision, we note that those statements were made in the context of proposals that applied broadly to all employees and were devoid of any attempt to target specifically those employees suffering adverse effects. Indeed, as we will discuss in more length in conjunction with Provision 4, there are circumstances where it is extremely difficult, if not impossible, to predict which employees will suffer adverse effects as a consequence of the exercise of a management right. Significantly, as we have previously noted, the D.C. Circuit has stated that proposals need not target in advance the specific individual employees who will be adversely affected.

We now turn to the question of whether Provisions 1 and 2 constitute appropriate arrangements. A determination by Agency officials that an employee is inappropriately dressed is essentially a determination that the employee's conduct is improper. As misconduct is a ground for disciplinary action, such a determination is a precondition to instituting disciplinary action against an employee and involves the exercise of management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute. Thus, a determination that an employee is inappropriately dressed foreseeably will have an adverse effect on the employee by making him or her subject to various punitive or remedial actions. By affording review of the initial determination that an employee's dress is inappropriate, these provisions are intended to address or prevent the adverse effects resulting from management's exercise of its right to take disciplinary action. Therefore, based on our discussion above, we find that these provisions constitute an arrangement within the meaning of section 7106(b)(3) of the Statute. See National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 685-86 (1991) (VA, Department of Memorial Affairs) (proposals that are intended to eliminate the possibility of an adverse effect may constitute arrangements for adversely affected employees within the meaning of section 7106(b)(3) of the Statute). See also Minerals Management Service, 969 F.2d at 1162-63 (court rejected interpretation of section 7106(b)(3) that "use of the past tense in the phrase 'adversely affected' creates a temporal wall forbidding any negotiability except as to harm that has already occurred").

Having found that these provisions satisfy the first part of the KANG analysis, we next address the issue of whether these arrangements are appropriate or whether they excessively interfere with management's right to assign work. These provisions would benefit employees by affording them the opportunity to obtain a review of a supervisor's initial determination that they are inappropriately attired. The availability of such a review increases the likelihood that the determination, which concerns a matter that is susceptible to subjective judgments, would be fair and objective and thus enhances the likelihood that an employee would be spared having unnecessary or unfair disciplinary measures instituted against him or her. We find that the availability of such review offers significant benefits to employees. Moreover, the choice of a higher level management official to conduct the review benefits employees because it is reasonable to expect that higher level officials, by virtue of their position, would be less reluctant to reverse the supervisor's initial determination than someone who is at the same or a subordinate level to the supervisor. The choice of the Personnel Officer as the final judge in the matter, and, if necessary, the counselling official, offers the advantage of bringing to the resolution of the issue the insights and expertise of an office that reasonably can be expected to have had more exposure to such issues than might be expected of line managers.

The effect of the provisions on management's right to assign work is moderated by the fact that the provisions permit some flexibility in the choice of the specific agency officials who will perform the reviews. In this regard, the provisions require that the first review will be performed by "the appropriate Office Director, Group Director, or equivalent management official" and, according to the Union, those officials are permitted to designate others to act for them. Also the Personnel Officer is permitted to authorize a designee to act for him or her in making the final judgment and, if necessary, counsel the employee.

On balance, we find that the burden placed on management's right to assign work is outweighed by the benefits afforded to employees and that the provisions do not excessively interfere with that right. Consequently, we conclude that Provisions 1 and 2 are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute.

IV. Provision 3

Article 15, Section 7 - Equal Employment Opportunity

Section 7:

The Office agrees to meet annually with representatives of the Union to review and discuss the distribution of employees by sex, race, and age in a division(s) or equivalent unit(s) which the Union has identified in advance in writing. The parties, when they determine that inequities exist, shall jointly develop a plan to attempt to resolve any inequities found.

A. Positions of the Parties

The Agency disputes the Union's claim that under this provision the Agency remains free to develop its own plan to address inequities separate and apart from the plan that the provision requires it to develop jointly with the Union. The Agency contends that "the plain language" of the provision requires the parties to jointly develop "the plan." Statement of Position at 6-7. Without specifying any particular management right(s), the Agency contends that this provision is nonnegotiable because it "interjects the Union into management's decision-making process pursuant to the exercise of its rights under Section 7106 of the Statute." Id. at 7. In this regard, the Agency argues that its management rights "include the right to discuss, deliberate and make determinations as well as the right to decide whether or not to take the final actions specified in Section 7106." Id.

According to the Union, this provision calls for the establishment of a joint Union-management committee to review perceived inequities in the distribution of employees by sex, race, and age in divisions or equivalent units and develop a plan to attempt to resolve any inequities found. The Union states that this provision does not require the Agency to implement the resulting plan or mandate changes in the Agency's existing plan, and that it does not prohibit management from developing its own plan, "without the Union," to address perceived inequities. Response at 6. Thus, the Union contends that this provision does not interfere with management's rights.

B. Analysis and Conclusions

The provision as worded requires that the parties jointly review the distribution of employees by race, sex, and age in divisions or equivalent units that the Union has identified and prepare "a" plan to attempt to resolve any inequities found. The Agency asserts that the resulting plan would be binding on it and would constitute its plan for resolving inequities. The Union, on the other hand, disputes this stating that this provision "does not require management to implement the plan or mandate changes to its existing plan. Nor does the proposal prohibit management from developing its own plan, without the Union, to address perceived inequities." Id. The Union's statement of intent is consistent with the provision as written, and we adopt the Union's interpretation of the provision for purposes of this decision.

Proposals that provide for union participation in the discussions and deliberations leading to decisions involving the exercise of management's rights directly interfere with the exercise of those rights. See, for example, HCFA, Baltimore, 44 FLRA at 1442. However, proposals or provisions that establish committees involving union participation that are outside, or are not an integral part, of management's decision-making process relating to the exercise of its rights under section 7106 do not directly interfere with those rights. See, for example, id. Such committees are parallel to, and supplement, management's decision-making process, usually functioning in an advisory capacity or as a source of nonbinding recommendations to management. See, for example, id. at 1443.

Moreover, joint labor-management activities to evaluate agency programs have been held to constitute negotiable procedures under section 7106(b)(2) of the Statute where the joint activity--for example, a labor-management committee--does not involve the union in management's decision-making process pursuant to the exercise of a management right, but rather enables the union to express its views or make recommendations regarding the program involved. See, for example, id. at 1437. Proposals establishing joint labor-management committees relating to the implementation of an agency's EEO program are negotiable procedures under section 7106(b)(2) of the Statute. See, for example, id. To the extent that joint labor-management evaluation does not involve a union in management's decision-making process pursuant to the exercise of management's rights under section 7106, proposals that require the agency and union jointly to evaluate agency programs related to conditions of employment, including the EEO program, constitute negotiable procedures under section 7106(b)(2) of the Statute. See, for example, id. at 1438.

Provision 3 requires joint evaluation of matters that concern equal employment opportunity and the development of a nonbinding, advisory plan concerning resolution of any inequities found. Consistent with the Union's statement of intent, the proposed joint evaluation and plan are parallel to, and supplement, the Agency's decision-making process. Consequently, the provision does not interfere with management's rights but, rather, constitutes a procedure that is negotiable under section 7106(b)(2) of the Statute.

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

V. Provision 4

Article 19 - Charitable and Civic Programs

Section 4:

It is also agreed that immediate supervisors may not solicit or collect pledges or contributions from an individual employee under their supervision.

A. Positions of the Parties

The Agency contends that this provision is nonnegotiable because it precludes the assignment of specific duties to supervisors. The Agency asserts that proposals that limit or preclude the assignment of work directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Union argues that this provision provides protection to employees from coercion by immediate supervisors to participate in charitable and civic programs and is negotiable. The Union maintains that this provision conforms to the provisions of 5 C.F.R. § 950.108(a), which prohibit the solicitation of employees by their supervisor in Federal fund-raising activities. Citing National Treasury Employees Union, Chapter 213 and 228 and United States Department of Energy, Washington, D.C., 32 FLRA 578 (1988) (Department of Energy), the Union asserts that proposals that restate the requirements of Government-wide regulations are negotiable.

B. Analysis and Conclusions

Management's right to assign work under section 7106(a)(2)(B) of the Statute encompasses assignments related to Government-sponsored charitable activities. See National Federation of Federal Employees, Local 1452 and U.S. Department of the Navy, Naval Training Center, Orlando, Florida, 43 FLRA 54, 61 (1991). As we discussed in conjunction with Provisions 1 and 2, proposals that preclude the assignment of work to particular individuals directly interfere with an agency's right to assign work. See, for example, HCFA, Baltimore, 44 FLRA at 1428. Provision 4 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute because it precludes the assignment of work to a particular individual.(5)

The Union asserts that this provision is negotiable because it restates the requirements of a Government-wide regulation, 5 C.F.R. § 950.108(a). A proposal that paraphrases or restates Government-wide regulations is not negotiable if it directly interferes with management's rights under the Statute because such a proposal imposes an independent, contractual requirement on the agency. See, for example, National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422, 426-27 (1987). In this regard, an agency would be required to honor the terms of the agreement for the life of the agreement regardless of any change in the Government-wide regulation. See 5 U.S.C. § 7116(a)(7) (with specified exceptions, an agency may not enforce rules or regulations that are in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed). To determine whether such a proposal directly interferes with management's rights, we examine whether it imposes substantive limitations on the agency's discretion to exercise those rights. See, for example, National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 474 (1990), remanded as to other matters without decision, No. 91-1045 (D.C. Cir. July 23, 1991) (Naval Underwater Systems Center, Newport). As Provision 4 directly interferes with management's right to assign work, it is distinguishable from Provision 2 in Department of Energy, which did not interfere with management's rights and on which the Union relies. Thus, we reject the Union's claim that Provision 4 is negotiable because it restates the requirements of a Government-wide regulation.(6)

We now turn to the issue of whether this provision is negotiable under section 7106(b)(3) of the Statute notwithstanding the fact that it directly interferes with management's right to assign work. The Union has claimed as a general matter that all of the provisions in this case constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. As to this particular provision, the Union asserts that it is intended to protect employees from coercion by their immediate supervisors to make pledges and contributions to civic and charitable programs.

Applying the analytical framework that was articulated in KANG, we first determine whether this provision constitutes an "arrangement." Generally speaking, fund-raising activities in the Federal Government are voluntary in nature and employee coercion is prohibited. See, for example, Executive Order 12353, as amended, § 4; Pub. L. No. 100-202 (5 U.S.C. § 1101 Note); and 5 C.F.R. § 950.108. It is recognized by the Office of Personnel Management (OPM), which is responsible for overseeing the Combined Federal Campaign (CFC), the only authorized charitable fund-raising drive in the Federal workplace, that solicitation of employees by any individual in their supervisory chain of command is inconsistent with the policy of preventing coercive activities in Federal fund-raising. See 5 C.F.R. § 950.108. Additionally, we note that regulations issued by the U.S. Office of Government Ethics prohibit a Federal employee who is engaging in fundraising in a personal capacity from personally soliciting funds or other support from a subordinate. 5 C.F.R. § 2635.808(c)(1).

We find that coercing employees with respect to their participation in civic and charitable programs in the workplace is an adverse effect of management's right under section 7106(a)(2)(B) of the Statute to assign the work of soliciting such participation. As recognized by the regulations discussed above, it is undeniable that solicitation of pledges and contributions from an employee by a superior is inherently coercive. We do not rule out that with respect to some employees, personality traits and circumstances may render them resistant to various forms of inherent coercion. However, it is impossible to determine reliably which employees will be influenced by a particular circumstance that is inherently coercive and which employees will be immune to the pressure involved in such inherent coercion. Although this provision is not tailored to benefit only those employees who actually would be affected by inherent coercion, its scope is limited to those employees who would be solicited by their supervisors. Clearly, this provision is intended to address the coercion that inheres in that circumstance by preventing employees from being subjected to solicitation by their supervisors. Proposals that are prophylactic in nature, in that they are intended to eliminate the possibility of an adverse effect, may constitute appropriate arrangements negotiable under section 7106(b)(3) of the Statute. See, for example, VA, Department of Memorial Affairs, 40 FLRA at 685-86.

In many instances, particularly where prophylactic proposals are involved, there is a limit to the extent to which proposals may be tailored without severely hampering the union's ability to address in a meaningful and effective manner adverse effects resulting from the exercise of a management right. For example, in some instances it may be extremely difficult, if not impossible, to predict with accuracy which employees actually will suffer adverse effects.

To illustrate this point, we posit a proposal requiring that the entrance to a building, in which bargaining unit employees work, be kept locked with entry permitted only to employees or other authorized persons for the purpose of protecting employees who work in an unsafe neighborhood from physical harm. Such a proposal would entail the adoption of a particular practice to safeguard agency personnel. A proposal establishing such a requirement directly interferes with management's right to determine its internal security practices. See, for example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 708 (1990) (Environmental Protection Agency I).

Clearly, the proposal seeks to prevent adverse effects that reasonably could result from the agency's choice of internal security practices regarding the level of access allowed to the building. Foreseeable adverse effects include the actual occurrence of physical harm to employees as well as the more generalized anxiety among the workforce that could reasonably result from being subjected to the possibility that physical harm could occur. There could be no certainty that any employee actually would suffer harm as a result of criminal activity in the building, and the identity of victims would be equally unpredictable. Similarly, it would be difficult to predict which employees would feel anxious about their potential for physical harm; indeed, many employees may be reluctant to admit to such anxiety. Moreover, it is likely that, based on their particular circumstances, some employees would be more vulnerable than others to attack and the debilitating effects of the fears generated by an unsafe workplace. In our view, such a proposal should not be disqualified as an arrangement under section 7106(b)(3) of the Statute merely because it is impossible to predict which employees actually will suffer adverse effects if the door is left unlocked. Such a result would substantially impair the ability of employees to address in a meaningful and effective manner the adverse effects that it is reasonably foreseeable will result from an exercise of management's rights.(7) See also National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618 (1990) (Proposal 1, which required that all bargaining unit employees at the headquarters facilities should receive the same level of protection provided to employees at another building, and Proposal 24, which required the agency to sign for courier packages at the main entrance, constituted appropriate arrangements negotiable under section 7106(b)(3) of the Statute); Environmental Protection Agency I (Proposal 1, which required that all courier deliveries for bargaining unit employees be checked at the main entrances, constituted an appropriate arrangement negotiable under section 7106(b)(3) of the Statute).

Provision 4 in VA, Department of Memorial Affairs, 40 FLRA 657, further illustrates the elusiveness of tailoring prophylactic arrangements to the degree required by our dissenting colleague. That provision, which required the agency normally to schedule overtime in 8-hour blocks on Saturdays, applied to a group of employees whose jobs entailed the performance of physical labor. According to the union, requiring employees to work beyond an 8-hour shift was potentially dangerous because of exhaustion. In light of this potential, the provision restricted the circumstances under which employees could be required to work more than 8 hours in a day. The Authority found that the provision constituted an arrangement under section 7106(b)(3) of the Statute. Although not raised in that decision, it could have been argued that within that group of employees there likely existed varying degrees of strength and stamina and that not all employees to whom the provision applied would be prone to exhaustion after 8 hours of work. The point also could have been made that a particular employee might be more susceptible to exhaustion on some days than others. The provision made no distinctions based on relative levels of strength and stamina, but applied to all employees in the group equally. We do not believe that such a provision should fail as an arrangement simply because it does not apply only to those employees who actually would become exhausted on a given day after 8 hours of work. Imposing such a stringent tailoring requirement would seriously dilute the ability of a union negotiating in the real world, generally without legal assistance, to prevent the harm that foreseeably would flow from the agency's exercise of its management rights. See also United States Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 43 FLRA 642, 659-61 (1991), enforced, 12 F.3d 882 (9th Cir. 1993) (Proposal B, which permitted employees to wear body armor over a uniform shirt but concealed by an outer garment, constituted an appropriate arrangement under section 7106(b)(3) of the Statute); National Association of Government Employees, Locals R14-68 and R14-73 and U.S. Department of Defense, Missouri National Guard, 42 FLRA 639, 641-43 (1991) (Provision 3, which restricted employees from operating a vehicle without relief in excess of 10 consecutive hours, constituted an appropriate arrangement under section 7106(b)(3) of the Statute).

In determining whether a proposal constitutes an arrangement under section 7106(b)(3) of the Statute, we will find that a proposal is sufficiently tailored if it targets a group of employees that is likely to be harmed by the exercise of a management right and seeks to address, compensate for, or prevent the actual or anticipated adverse effects of the exercise of the management right or rights on those employees. We disagree with our dissenting colleague that in order for a proposal to constitute an arrangement within the meaning of section 7106(b)(3), it must be so narrowly tailored as to benefit or compensate only those employees who would suffer an adverse effect as a result of an exercise of a management right.

We find that, although Provision 4 in this case would encompass some employees in addition to those who would be swayed by inherent coercion, it is sufficiently tailored in that it targets a group of employees that is likely to be harmed by a particular exercise of management's right to assign work and seeks to address or prevent the actual or anticipated adverse effects of that exercise of the management right on those employees. Consequently, we find that this provision constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute.

Now, we turn to the question of whether this provision is appropriate or whether it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Permitting supervisors to solicit contributions and pledges from employees under their supervision diminishes the freedom of choice enjoyed by employees insofar as decisions relating to contributions to charitable and civic programs and the use of their financial resources are concerned. This provision affords employees a significant benefit by preventing an inherently coercive practice and protecting the voluntary nature of such decisions. The burden placed on the Agency is that it cannot assign to supervisors the task of soliciting contributions and pledges from the employees under their supervision. We note that insofar as the CFC is concerned, this burden duplicates a restriction that OPM already has placed on the Agency in 5 C.F.R. § 950.108, which prohibits solicitation of employees by their supervisor or by any individual in their supervisory chain of command. While conformance with an OPM regulation does not in and of itself make a provision negotiable, compliance with an existing obligation is certainly a factor to be weighed in assessing excessive interference. Other than this particular limitation, the provision leaves the Agency free to assign the task of soliciting a particular employee to anyone else. For example, under this provision, the Agency remains free to assign to supervisors the task of soliciting contributions from anyone but the employees they supervise. We acknowledge that the provision does not permit any exception to the prohibition imposed; however, it is not apparent to us that the Agency has any legitimate interest in making a work assignment that is inconsistent with the policy of preventing coercion in Federal fund-raising activities. Compare Army Reserve Personnel Center, 46 FLRA at 1504-05 (provision that permitted no exception to standard established for overtime assignments deprived the agency of the ability to assign other employees to overtime even though the agency might have a legitimate reason for making the assignment).

On balance, we find that the benefit that this provision affords to employees outweighs the burden placed on the Agency's right to assign work. We conclude that the provision does not excessively interfere with the Agency's management right and that it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

VI. Provision 5

Article 24 - Health and Safety

Section 6:

When an employee becomes ill or is injured in the performance of his/her duty, the employee will be promptly referred to the Office of Personnel for counseling as to his/her right to file for compensation benefits and the benefits payable when it is known the absence will be for more than 3 calendar days. The employee shall also be advised as soon as possible that compensation benefits can be used in lieu of sick or annual leave, and that, in cases of traumatic injury, as defined in Federal Personnel Manual Chapter 810, he/she is entitled to continuation of regular pay for a period not to exceed 45 calendar days. The Office shall make a reasonable effort to accommodate all employees so injured in obtaining job assignments, transfers, reassignments, or details.

A. Positions of the Parties

The Agency argues that this provision is nonnegotiable because it interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute by assigning an individual or organization to perform the duty of providing counseling to employees.

The Union describes this provision as prescribing procedures for employees to follow when seeking information and counseling as to their rights in the event of on-the-job injury. The Union contends that this provision is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. In this regard, the Union maintains that employees could suffer loss of income if procedures for filing for compensation are incorrectly followed and that the intent of this provision is to direct employees to the appropriate office to receive correct information concerning the institution of such claims. The Union contends that the benefit to employees afforded by this provision outweighs its impact on management's rights, which the Union asserts is only minimal in that the Agency is required only to counsel employees concerning the proper procedure for filing for compensation. The Union argues that substituting terms such as "office" or "agency" for "Office of Personnel" would render the provision virtually useless by undermining its purpose of directing employees to the proper office for information concerning the proper procedure for filing compensation claims. The Union asserts that by referring employees to a particular office, employees have a "starting point" to look for the information needed and that if the Office of Personnel decides to refer the employee elsewhere, nothing in the provision prevents it from doing so. Citing Bronx Medical Center, the Union contends that this provision leaves the agency free to determine who will act on the employee's request for counseling.

B. Analysis and Conclusions

Proposals that require a particular individual or a particular office to perform a designated duty directly interfere with management's right to assign work under section 7106(a)(2)(b) of the Statute. See Naval Underwater Systems Center, Newport, 38 FLRA at 483; National Federation of Federal Employees, Local 1437 and United States Army Armament, Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1060 (1990). This provision identifies the Personnel Office as the point of initial referral of employees suffering illness and injury for the purpose of providing them with counseling concerning workmen's compensation claims. According to the Union, the Personnel Office is not obligated to provide the actual counseling, but remains free to refer the employee elsewhere. Thus, the provision requires the Personnel Office, at a minimum, to perform the duty of referring employees for counseling for workmen's compensation claims.(8) By requiring that the Personnel Office perform a designated duty, this provision directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.(9)

We now turn to the Union's contention that this provision is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Based on the following, we find that the record in this case is insufficient to permit a determination of whether Provision 5 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Union asserts that employees will be adversely affected if they do not receive correct information concerning the procedures for filing workmen's compensation claims. Although, as explained by the Union, the provision does not require that the Personnel Office be responsible for providing counseling concerning the filing of those claims, it does require that the Personnel Office be responsible for referring the employee for counseling. While the Union states that the Personnel Office is the correct office to perform this task, it does not explain why this is so.

Under regulations issued by the Department of Labor that govern the filing of workmen's compensation claims, the employee's "official superior" is responsible for carrying out various responsibilities under the Federal Employees' Compensation Act (FECA). See, for example, 20 C.F.R. §§ 10.100, 10.102, 10.105, and 10.106. This includes advising employees of various rights that they have under FECA. See 20 C.F.R. § 10.106. "Official superior" is defined as:

"[O]fficers and employees having responsibility for the supervision, direction or control of employees, or other employees of the agency designated by the employing agency to carry out the responsibilities vested in the agency under the Act and this subpart."

20 C.F.R. § 10.5(a)(12).

While we do not deny that there is a likelihood that in some agencies the Personnel Office may be the locus of expertise concerning the filing of compensation claims, we do not assume that this is so in all cases. The Department of Labor's regulations indicate that other offices and officials within an agency may be the source of expertise in this area. The record of this case does not support a conclusion that the Personnel Office is the source of expertise in the area of workmen's compensation in the Agency. Thus, we find that the Union has not shown how designating the Personnel Office as the point of initial referral for counseling in compensation claims would benefit employees or, conversely, how initial referral to another office or official would adversely affect employees. This is particularly true given the Union's assertion that under the provision the Personnel Office is not obligated to provide the counseling but remains free to refer the employee elsewhere. Therefore, we find that the Union has not provided a record sufficient for us to determine whether Provision 5 is an appropriate arrangement. See HCFA, Baltimore, 44 FLRA at 1429.

The parties bear the burden of creating a record on which we can base a negotiability determination. See, for example, id. Because the record here does not contain information sufficient for us to determine whether Provision 5 constitutes an appropriate arrangement, we are unable to make such a determination. Accordingly, as we have concluded that Provision 5 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute, we will dismiss the petition for review as to Provision 5.(10)

VII. Provision 6

Article 24 - Health and Safety

Section 16:

When it is necessary for an employee to leave work and return home because of illness or incapacitation, the Office will assist in locating a willing employee to transport the sick employee to his/her residence. The Office will allow a reasonable amount of time to the employee transporting the sick employee for this transport to be accomplished. The parties recognize that the Office's monetary, tort, or pecuniary liability is governed by the Comptroller General and Federal Court decisions. The Office assumes only that responsibility or liability allowable by law, regulation, or such decisions.

A. Positions of the Parties

The Agency describes management's right to assign work under section 7106(a)(2)(B) of the Statute as encompassing the right to determine the particular duties to assign, when work assigned will be performed, and to whom or what positions duties will be assigned. The Agency states that this provision requires it to permit a "willing" employee to leave work and transport a sick employee to his or her residence. The Agency asserts that this provision eliminates management's discretion to deny a willing employee's request to transport a sick employee to his or her residence and that it precludes management from selecting the individual who will perform that task. Consequently, the Agency contends that this provision impermissibly interferes with management's right to assign work and is nonnegotiable.

The Union states that this provision requires only that the Agency assist in locating an employee who is willing to transport a sick employee to his or her residence. The Union denies that this provision requires the Agency to permit any willing employee found to escort the sick employee home. The Union states that nothing in the provision requires the Agency to select a particular employee or precludes it from selecting a particular employee. According to the Union, "[i]f the Agency is unable to locate a willing employee, nothing in the Union's proposal prevents management from assigning an employee the task or finding alternative means, if available." Response at 10. The Union contends that this provision does not excessively interfere with management's rights and is an appropriate arrangement.

B. Analysis and Conclusions

Initially, we find that the Union's statement of intent that this provision does not require the Agency to assign the task of transporting a sick employee to a volunteer but leaves the Agency free to select another employee for that task is consistent with the language of the provision. However, even under that interpretation, this provision directly interferes with management's right to assign work. Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See, for example, Naval Air Station, Whidbey Island, 41 FLRA 589, 594 (1991). We find that Provision 6 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) because it would require the Agency to assign a specific task, that of transporting a sick employee to his or her residence, to an employee. See id.

We now turn to the Union's claim that this provision is negotiable under section 7106(b)(3) of the Statute as an appropriate arrangement under the analytical framework established in KANG, 21 FLRA at 31. There is no showing in the record of this case, nor is it otherwise apparent to us, that the adverse effects that this provision seeks to address are produced by the exercise of any management's rights. Moreover, the record in this case does not establish that this provision constitutes anything more than a benefit for employees. See, for example, American Federation of Government Employees, Council of Prison Locals, Local 3974 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, McKean, Pennsylvania, 48 FLRA 225, 230-31 (1993) (a proposal is not an arrangement merely because employees would be adversely affected by the denial of a benefit provided by the proposal). We find that there is no basis for concluding that this provision is an arrangement within the meaning of section 7106(b)(3) of the Statute. See HCFA, Baltimore, 44 FLRA at 1429.

We reiterate that the parties bear the burden of creating a record on which we can base a negotiability determination. See, for example, HCFA, Baltimore, 44 FLRA at 1429. Any party failing to meet its burden acts at its peril. See, for example, National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA 1331, 1351 (1992). Accordingly, as we have concluded that Provision 6 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute, we will dismiss the petition for review as to Provision 6.

VIII. Provision 7

Article 44 - Adverse and Disciplinary Actions

Section 10:

A letter of reprimand will be removed from the employee's record no later than 18 months from the date of issuance. Oral admonishments confirmed in writing will be removed after 3 months.

A. Positions of the Parties

The Agency contends that this provision restricts the degree of discipline that the Agency may impose. In support of this claim, the Agency cites a proposal in Bronx Medical Center, 30 FLRA at 733-34, that was found to interfere with management's right to take disciplinary action by imposing a table of penalties for listed offenses. The Agency asserts that "to the extent" that the time frames for removal of the specified documents from employees' files dictated by the provision would interfere with the Agency's ability to use a previous disciplinary record to determine an appropriate penalty in a subsequent disciplinary action, this provision directly interferes with management's right to take disciplinary action. Statement of Position at 12.

The Union contends that this provision does not restrict the penalty that the Agency may impose in a disciplinary action. The Union describes this provision as merely prescribing a time frame for the purging of letters of reprimand or oral admonishments from employee personnel folders. The Union asserts that this provision is consistent with OPM regulations that govern the maintenance of personnel files.

The Union contends that the Agency's reliance on Bronx Medical Center is misplaced as this provision does not prescribe a specific table of penalties. The Union also states that this provision does not "prohibit [the Agency] from using a previous disciplinary record to determine an appropriate penalty." Response at 11.

B. Analysis and Conclusions

As explained by the Union, this provision requires the removal of written reprimands and written confirmation of oral admonishments only from employee personnel folders after the specified periods. The Union specifically states that this provision does not prevent the Agency from using a previous disciplinary record to determine the appropriate penalty in subsequent discipline. This statement of intent is consistent with the language of the provision and is adopted for purposes of this decision. Thus, we construe the provision as not preventing the Agency from using copies of written reprimands and written confirmation of oral admonishments that are maintained in places other than the employee's personnel folder beyond the time periods set forth in the provision. In this regard, the Agency makes no claim that it is prevented from keeping copies of those documents in locations other than employee personnel folders and there is no evidence in the record of this case to support such a conclusion. Compare Army Reserve Personnel Center, 46 FLRA at 1510-14 (undisputed portion of Provision 5 required that if counseling or admonishments were reduced to writing, the document would be kept only in the supervisor's employee personnel folder and a copy would be provided to the employee).

Proposals that restrict the prior offenses that an agency can rely on to enforce a progressive disciplinary system directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See, for example, id. at 1512. Management's right to discipline employees also encompasses the right to obtain and use evidence to support disciplinary actions. See, for example, id. Thus, a proposal that requires the destruction of the only written documentation of prior discipline limits an agency's ability to obtain and use evidence in subsequent disciplinary actions and directly interferes with management's right to take disciplinary action. See id.

The provision in this case, unlike Provision 5 in Army Reserve Personnel Center, does not require the elimination of the only written documentation of prior written reprimands and oral admonishments available to the Agency. Rather, as explained above, the provision requires removal of that documentation only from employee personnel folders. Similarly, this provision is distinguishable from Proposal 2(e) in American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 313-324 (1990), aff'd as to other matters, 949 F.2d 475 (D.C. Cir. 1991). Proposal 2(e), which required that "Last Chance" or "Pre-Removal" agreements would be cancelled and expunged from employees' personnel records upon completion of the probationary period, was held nonnegotiable to the extent that the proposal would restrict the evidence the Agency could consider to support a subsequent disciplinary action. The record in this case does not support a conclusion that Provision 6 requires the cancellation of the written reprimand or the oral admonishment. Provision 7 is also distinguishable from Proposal 1 in United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1147-52 (1992), petition for review dismissed, No. 92-70520 (9th Cir. Aug. 26, 1992). Proposal 1 established a time limit on the use of prior disciplinary actions to determine the penalty in subsequent discipline and, consequently, directly interfered with management's right to discipline employees. Provision 7 does not establish a time limit on the use of prior disciplinary actions but only requires removal of documentation relating to them from specified files.

We find that there is no basis for concluding that Provision 7 directly interferes with management's right to discipline employees because the record in this case does not establish that this provision deprives the Agency of all copies of prior written reprimands and oral admonishments confirmed in writing or requires the cancellation of them. Consequently, we conclude that the Agency head's disapproval of Provision 7 must be set aside. In reaching this conclusion, we note that this provision does not prescribe a table of penalties, as was the case in Bronx Medical Center on which the Agency relies. In any event, for the reasons that we discussed in conjunction with Provisions 1 and 2, the Agency's reliance on Bronx Medical Center is misplaced. See Naval Air Station, Whidbey Island, 41 FLRA at 600.

IX. Provisions 8 and 9

Article 49 - Union Representatives

[Provision 8]

Section 4:

D. Permission to conduct official union business including representation and assistance activities will normally be granted unless absence of the steward from his/her work duties would cause substantial adverse effect on the work product of his/her area. In those instances, an alternate time will be authorized.

[Provision 9]

Section 9:

Where there is more than one (1) Union representative from the same work unit, the Union representatives shall make every reasonable effort to schedule use of official representational time so as to avoid simultaneous absence from their work duties on union business. If simultaneous absence cannot be avoided, the workload requirements in Section 4.D. of this article will apply.

A. Positions of the Parties

The Agency asserts that these provisions are inconsistent with management's right to assign work pursuant to section 7106(a)(2)(B) of the Statute because they require the Agency to grant Union representatives permission to conduct Union business upon request absent a substantial adverse effect on the work product in the representative's area. The Agency acknowledges that similar provisions were found negotiable in National Treasury Employees Union and U.S. Department of the Treasury, Financial Management Service, 45 FLRA 696, 697-705 (1992) (Member Armendariz concurring in part and dissenting in part) (Financial Management Service); and National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 344-355 (1992) (Bureau of Alcohol, Tobacco and Firearms). However, the Agency states that those decisions have been appealed.(11)

The Agency also asserts that the Authority's application of the excessive interference test is incorrect, citing Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922 (1990) (IRS v. FLRA). The Agency contends that no appropriate arrangement negotiated in accordance with section 7106(b)(3) of the Statute can interfere with the Agency's exercise of its management's rights. The Agency argues that these provisions unduly limit its right to determine the necessity for the employee's presence at the worksite and when assigned work will be performed.

The Union describes these provisions as setting forth clear guidelines on the granting of official time for Union officials. The Union contends that these provisions are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute, citing Financial Management Service and Bureau of Alcohol, Tobacco and Firearms. The Union argues that the circumstances that these provisions address are similar to those surrounding the provisions in Financial Management Service and Bureau of Alcohol, Tobacco and Firearms. The Union asserts that "[t]he impact on the Union is substantial in that union officials would be denied their right to participate in union activities and represent employees." Response at 13. According to the Union, the impact on the Agency's right to assign work is minimal in that the Agency may deny requests by Union representatives to be released from their regular duties to perform representational activities on official time if their absence would cause a "substantial adverse effect" on the work product.

The Union maintains that the benefits afforded by allowing union officials to protect employees through collective bargaining outweigh the minimal impact of the provisions on managements rights.

B. Analysis and Conclusions

These provisions are similar to Provision 6 in Bureau of Alcohol, Tobacco and Firearms, 45 FLRA at 344-55, in that these provisions place restrictions on the Agency's ability to deny a request that a Union representative be excused from performing assigned duties in order to perform representational activities on official time. In Bureau of Alcohol, Tobacco and Firearms, we reviewed our approach to the relationship between section 7131(d) of the Statute, which authorizes the negotiation of official time, and section 7106, which concerns management rights, in view of the Court's decision in IRS v. FLRA.

Prior to Bureau of Alcohol, Tobacco and Firearms, the Authority held that section 7131(d) of the Statute carved out an exception to section 7106(a) and that "the use of official time under section 7131(d)--that is, its amount, allocation and scheduling--is negotiable absent an emergency or other special circumstances . . . ." Military Entrance Processing Station, Los Angeles, California, 25 FLRA 685, 689 (1987) (Military Entrance Processing Station). In reviewing the approach that was adopted in Military Entrance Processing Station, we stated in Bureau of Alcohol, Tobacco and Firearms:

In our view, Congress intended by section 7131(d) of the Statute to authorize unions to negotiate over the use of official time for representational activity. However, the breadth and effect that the Court has ascribed to the phrase "nothing in this chapter," which appears in section 7106(a) of the Statute, requires us to reconsider our previous conclusion that section 7131(d) carves out an exception to section 7106(a).

45 FLRA at 347-48.

We recognized that a "strict reading" of IRS v. FLRA would lead to a conclusion that any proposals concerning official time that are negotiated under section 7131(d) are subject to section 7106(a). Id. at 348. In determining whether to adopt this approach in Bureau of Alcohol, Tobacco and Firearms, we expressed our concern that subordinating section 7131(d) to section 7106(a) of the Statute would effectively void section 7131(d). We noted the elementary rule of statutory construction that effect must be given to every word, clause, and sentence of a statute so that no part is "rendered inoperative or insignificant." Id. at 348. In view of the need to give effect to all provisions of the Statute, we stated that we read IRS v. FLRA to apply to situations where according predominance to the rights established by section 7106 could be achieved without eviscerating another provision of the Statute as was the case in IRS v. FLRA. Because sections 7106 and 7131(d) of the Statute could not be reconciled in a manner that continued to give effect to section 7131(d), we stated that we would continue to carve out an exception to section 7106 of the Statute "in order to maintain the negotiability, where otherwise warranted, of matters involving official time." Id.

Because Provisions 8 and 9 concern the use of official time, we find, consistent with Bureau of Alcohol, Tobacco and Firearms, that these provisions fall within the exception to section 7106(a)(2)(B) that is provided under section 7131(d) for matters pertaining to official time for union representational activities. We conclude, therefore, based on Bureau of Alcohol, Tobacco and Firearms, that these provisions are negotiable.

As an alternative to finding Provision 6 negotiable based on application of the theory discussed above, the majority in Bureau of Alcohol, Tobacco and Firearms (Member Armendariz concurring in part and dissenting in part) also analyzed that provision to determine whether it constituted an appropriate arrangement under section 7106(b)(3) of the Statute by applying the analytical framework that was set forth in KANG. In applying that analytical framework in Bureau of Alcohol, Tobacco and Firearms, we concluded that Provision 6 constituted an arrangement even though the provision could have required the granting of official time in circumstances where the need to engage in representational activity was not attributable to the exercise of a management right. 45 FLRA at 352. In view of the growing body of court precedent regarding the extent to which proposals that apply broadly to employees may constitute an arrangement within the meaning of section 7106(b)(3) of the Statute as we discussed in conjunction with Provisions 1 and 2 above, we reevaluate this approach.

We recognize that in order for a proposal to constitute an arrangement under section 7106(b)(3) of the Statute, it must address adverse effects that may be produced by an exercise of management's rights. We also recognize that not all representational activities for which official time is authorized under section 7131(d) of the Statute will be related to the exercise of a management right. For example, we recently concluded that representing Federal employees by visiting, phoning, and writing to elected representatives in support or opposition to pending or desired legislation that would impact the working conditions of employees constitutes a representational activity for which official time is authorized under section 7131(d) of the Statute. Department of Veterans Affairs, Atlanta, Georgia, 47 FLRA at 1118. See also National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 45 FLRA 289, 294-98 (1992) (responding to parties, including journalistic media and members of the general public, who make inquiries of the union about issues affecting the terms and conditions of employment of bargaining unit employees constitutes representational activity for which official time is authorized under section 7131(d)). On further consideration, we conclude that we will no longer analyze as arrangements proposals that extend to circumstances in which the need to engage in representational activity for which the official time is sought is not related to the exercise of a management right.

The Union asserts that Provisions 8 and 9 are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute. These two provisions are not limited to requiring the release of Union representatives from their assigned duties to perform representational activity relating to the exercise of a management right but apply broadly to all representational activities including such possible pursuits as lobbying elected representatives. We conclude that Provisions 8 and 9 do not constitute arrangements within the meaning of section 7106(b)(3) of the Statute because they are not limited to addressing harms suffered as a result of an exercise of management's rights. Nevertheless, based on our conclusion that section 7131(d) carves out an exception to section 7106, they are negotiable.

X. Order

The Agency shall rescind its disapproval of Provisions 1, 2, 3, 4, 7, 8, and 9.(12) The petition for review is dismissed insofar as it concerns Provisions 5 and 6.

Member Armendariz, Concurring in Part and Dissenting in Part

I write separately because I cannot join in the analysis employed by my colleagues to determine whether a collective bargaining proposal constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute.(1) As my colleagues note, the issue of whether a proposal constitutes an arrangement under section 7106(b)(3) of the Statute has been the subject of three recent court decisions.(2) Consistent with my separate opinion in National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 47 FLRA 705, 731-34 (1993) (Member Armendariz, concurring in part and dissenting in part), in my view, under NLRB, INS, and Minerals Management Service, in order for a proposal to constitute an arrangement within the meaning of section 7106(b)(3) of the Statute, it must be tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse effect as a result of an exercise of a management right.

In NLRB, the U.S. Court of Appeals for the District of Columbia Circuit found that a proposal that was "a prophylactic measure applicable to all employees, instead of being 'tailored to benefit or compensate those employees suffering . . . adverse effects[,]'" was not an arrangement under section 7106(b)(3) of the Statute. NLRB, 2 F.3d at 1198, quoting Minerals Management Service, 969 F.2d at 1162. The court stated that in finding that the proposal was an arrangement, the Authority had "made no effort to discern 'whether the balm provided by the proposal would be administered only to hurts arising from'" the exercise of management's rights. Id. The court reaffirmed its interpretation of section 7106(b)(3) that it set forth in Minerals Management Service, "which established that a proposal may qualify as an appropriate arrangement under section 7106(b)(3) 'only when the [proposal] is tailored to benefit or compensate those employees suffering . . . adverse effects.'" Id. at 1197, quoting Minerals Management Service, 969 F.2d at 1162.

In Minerals Management Service, the court stated the following in finding that proposals addressing drug testing programs and agency personnel actions were not arrangements under section 7106(b)(3) of the Statute:

[T]he plain language of § 7106(b)(3) demands that the FLRA assure that arrangements are tailored to redress only those employees adversely affected by a management action. . . . By [the terms of section 7106(b)(3)], Congress necessarily excluded arrangements not tailored to benefit the adversely affected.

. . . .

. . . [W]e read § 7106(b)(3) as unambiguously applying only where the FLRA has identified the reasonably foreseeable adverse effects that will flow from some management action; and only when the proposed arrangement is tailored to benefit or compensate those employees suffering those adverse effects.

Minerals Management Service, 969 F.2d at 1162 (citations omitted).

In INS, the U.S. Court of Appeals for the Fifth Circuit reversed the Authority's holding that a proposal was an arrangement under section 7106(b)(3). The court found that "the Authority's analysis [did] not give proper effect to Congress' explicit intent that § 7106(b)(3) arrangements be negotiable only if such arrangements are aimed at employees who are 'adversely affected.'" INS, 975 F.2d at 225. The court found that the proposal, which required the agency to give employees up to 48 hours to consult with a union representative before the agency could question employees about shooting incidents, was "not tailored to benefit only those employees who would be adversely affected by the [agency's] questioning"; rather, the proposal "simply cover[ed] all employees who are subject to the agency's investigation." Id. at 225, 226 (emphasis in original; footnote omitted).

In my view, the analysis set forth by my colleagues in response to NLRB, INS, and Minerals Management Service fails to give full force and effect to the courts' holdings in those cases. Therefore, although I agree with my colleagues, for the reasons stated by them, that Provisions 1, 2, and 4 directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and that we must determine whether the provisions constitute appropriate arrangements under section 7106(b)(3) of the Statute, I differ with them as to what analysis is used to determine whether the provisions constitute arrangements within the meaning of section 7106(b)(3) of the Statute.

Specifically, as to Provision 1, I agree with my colleagues' conclusion, but not their reasoning, that the provision is an arrangement under section 7106(b)(3) of the Statute. I find that an employee may be adversely affected by a complaining official's erroneous determination that the employee is inappropriately attired because such a finding is tantamount to a determination that the employee's conduct is improper and may subject that employee to various unwarranted punitive and remedial actions. Moreover, I find that Provision 1 is tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse effect from an erroneous determination that they were inappropriately attired. In particular, the provision applies only after management has initially determined that the employee is inappropriately attired and provides redress only to those employees who have been determined to be inappropriately attired.

Similarly, as to Provision 2, I agree with my colleagues' conclusion, but not their reasoning, that the provision is an arrangement under section 7106(b)(3) of the Statute. I find that an employee may be adversely affected as a result of the designated Agency official described in Provision 1 confirming the complaining official's determination that the employee is inappropriately attired. As noted above, such a determination is tantamount to a determination that the employee's conduct is improper and may subject that employee to various unwarranted punitive and remedial actions. Moreover, I find that Provision 2 is tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse effect from a higher-level Agency official's confirmation of the complaining official's determination that the employee is inappropriately attired. The provision benefits employees by limiting the disciplinary action that the Agency can take and mandating that someone other than the complaining official administer the specific corrective action and the appropriate warning described in Provision 2.

Having concluded that Provisions 1 and 2 are arrangements, I next turn to the issue of whether they are "appropriate" arrangements within the meaning of section 7106(b)(3) of the Statute. I concur with my colleagues, for the reasons stated by them, that Provisions 1 and 2 are "appropriate" arrangements within the meaning of section 7106(b)(3) of the Statute.

With respect to Provision 4, I would find, contrary to my colleagues, that the provision is not an arrangement within the meaning of section 7106(b)(3) of the Statute. My colleagues find that "coercing employees with respect to their participation in civic and charitable programs in the workplace is an adverse effect of management's right under section 7106(a)(2)(B) of the Statute to assign the work of soliciting such participation." Slip op. at 16.(3) They conclude that Provision 4 is "prophylactic" and sufficiently tailored to constitute an arrangement under section 7106(b)(3) because, "[a]lthough [it] is not tailored to benefit only those employees who actually would be affected by inherent coercion, its scope is limited to those employees who would be solicited by their supervisors." Id.

This analysis cannot be reconciled with NLRB, INS, and Minerals Management Service. A proposal only qualifies as an arrangement when it is "'tailored to redress only those employees adversely affected by a management action.'" NLRB, 2 F.3d at 1197, quoting Minerals Management Service, 969 F.2d at 1162. Moreover, as the court in NLRB explicitly stated, "prophylactic measure[s] applicable to all employees, instead of being 'tailored to benefit or compensate those employees suffering . . . adverse effects[,]'" are not arrangements within the meaning of section 7106(b)(3) of the Statute. Id. at 1198, quoting Minerals Management Service, 969 F.2d at 1162.(4) As noted above, and as my colleagues concede, the provision includes within its scope employees who will not be adversely affected. Inasmuch as the provision includes within its scope employees who will not be adversely affected by the assignment of a supervisor to solicit contributions, it is not tailored to apply to only those employees who will be adversely affected by management's action.

In my view, my colleagues' approach is in direct contradiction to NLRB because it ignores the court's plain holding that an arrangement must be tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse effect as a result of an exercise of a management right. My colleagues state that "[i]n many instances, particularly where prophylactic proposals are involved, there is a limit to the extent to which proposals may be tailored without severely hampering the union's ability to address in a meaningful and effective manner adverse effects resulting from the exercise of a management right." Slip op. at 16-17. I believe that under section 7106(b)(3) of the Statute, as construed by the courts and consistent with my view stated above, unions can formulate meaningful and effective proposals, including prophylactic proposals, that will satisfy the statutory standards.(5) Requiring that arrangements be tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse effect as a result of an exercise of a management right simply instructs unions to craft proposals that meet the statutory standards. In so doing, unions must identify what adverse effects will flow from the exercise of a given management right and then tailor a proposal so that it applies only to that class of employees who will suffer the anticipated adverse effects.

Inasmuch as I find that Provision 4 does not constitute an arrangement under section 7106(b)(3) of the Statute, I would find that it is nonnegotiable.

Finally, with respect to Provisions 8 and 9, I concur in my colleagues' finding that these provisions are negotiable based on the carve-out theory inasmuch as they involve the scheduling of official time. Compare National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Washington, D.C., 48 FLRA 1323 (1994). However, consistent with my separate opinion in National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 390 (1992) (Member Armendariz, concurring in part and dissenting in part), I do not join in the portion of my colleagues' opinion (slip op. at 31-32) discussing whether these provisions constitute arrangements under section 7106(b)(3) of the Statute.




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


Authority's Footnotes Follow:

1. Member Armendariz' opinion, concurring in part and dissenting in part as to Provisions 1, 2, 4, 8, and 9, is set forth at the end of this decision.

2. The petition originally included a tenth provision. Subsequently, the Union withdrew its appeal with regard to that particular provision and it will not be considered further.

3. See National Federation of Federal Employees, Local 122 and U.S. Department of Veterans Affairs, Regional Office Atlanta, Georgia, 47 FLRA 1118, 1118-20 (1993) (Department of Veterans Affairs, Atlanta, Georgia) (under section 7117(c)(2)(B) of the Statute, service of a petition on the agency head is a statutory procedural requirement that does not pertain to the Authority's jurisdiction to decide a negotiability dispute and failure to comply with that requirement is a curable defect in the petition for review).

4. Chairman McKee and Member Talkin note that these provisions are distinguishable from Provision 3 in Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 526-29 (1990) (Member Armendariz concurring in part and dissenting in part), based on the fact that in this case the Agency specifically raised the requirement that particular officials perform specified tasks as a ground for asserting that these provisions are nonnegotiable and it appears that these provisions are intended to restrict the Agency in its choice of the particular management officials who will perform specified tasks.

5. See note 4 above.

6. In reaching our conclusions concerning this provision, it is unnecessary to, and we do not, decide whether 5 C.F.R. § 950.108 constitutes a Government-wide regulation within the meaning of section 7117 of the Statute.

7. However, a finding that a proposal is an arrangement does not mean that it becomes negotiable under section 7106(b)(3) of the Statute. It also must be determined that a proposed arrangement is appropriate. Our case law is replete with examples of proposals that constituted arrangements but were nevertheless nonnegotiable because they excessively interfered with management's rights and consequently were inappropriate. Here, we address only the issue of what is necessary to satisfy the first part of the KANG analysis.

8. We note that the last sentence of this provision requires that "the Office" will make reasonable efforts to accommodate injured employees in various ways. Based on the use of the phrase "the Office" in other provisions in this case, we conclude that "the Office" refers to the Patent and Trademark Office, the Agency in this case, and not the Office of Personnel. Because the Agency's objections to this provision are limited to its contention that the provision requires that a particular office provide counseling to injured employees, we conclude that the last sentence in this provision is not in dispute.

9. As discussed in conjunction with Provisions 1 and 2, the Union's reliance on Bronx Medical Center is misplaced. See Naval Air Station, Whidbey Island, 41 FLRA at 600.

10. See note 4 above.

11. The appeals that were filed in those cases have been withdrawn.

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


Concurring and Dissenting Opinion Footnotes Follow:

1. References to a "proposal" apply as well to collective bargaining agreement provisions, such as those at issue in this case.

2. These decisions are National Labor Relations Board v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993) (NLRB), United States Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992) (INS), and United States Department of the Interior Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992) (Minerals Management Service).

3. For purposes of this discussion, I will assume, without deciding, that the adverse effect described by my colleagues is sufficient to come within the coverage of section 7106(b)(3) of the Statute. In the record before us, the Union has not identified any alleged adverse effect that Provision 4 is intended to address.

4. In NLRB, the court noted that in an earlier case, it had stated that nothing in section 7106(b)(3) requires proposals "'to target in advance the very individual employees who will be adversely affected[,]'" as long as it is reasonably concluded that management's actions "'will surely have adverse effects on some employees.'" NLRB, 2 F.3d at 1198, quoting United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1071 (D.C. Cir. 1992) (IRS). The court found in NLRB that IRS did not support a conclusion that the proposal in NLRB was an arrangement, because the proposal's remedy was not limited to those employees who would be adversely affected, but rather applied to all employees. Similarly, the remedy in Provision 4 in the instant case (precluding immediate supervisors from soliciting or collecting pledges or contributions from employees under their supervision) is not limited to those employees who would be adversely affected by management's exercise of its right to assign the work of soliciting such participation, but rather applies to all employees.

5. In this regard, I note that the Authority's decisions in United States Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 43 FLRA 642, 659-61 (1991), enforced, 12 F.3d 882 (9th Cir. 1993); National Association of Government Employees, Locals R14-68 and R14-73 and U.S. Department of Defense, Missouri National Guard, 42 FLRA 639, 641-43 (1991); National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 668-74 (1991); National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618 (1990); and National Federation of Government Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 708 (1990), discussed by my colleagues (slip op. at 17-19), predate our consideration of the courts' decisions in NLRB, INS, and Minerals