51:1308(108)NG - - AFGE, National Border Patrol Council and INS - - 1996 FLRAdec NG - - v51 p1308



[ v51 p1308 ]
51:1308(108)NG
The decision of the Authority follows:


51 FLRA No. 108

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL

(Union)

and

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

(Agency)

0-NG-2181

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 11, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

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), and concerns the negotiability of seven provisions awarded through interest arbitration resulting from proceedings under section 7119(b)(1) of the Statute. These provisions were disapproved by the Agency head under section 7114(c) of the Statute. The provisions modify Agency-proposed revisions of Chapter 2274 of the Agency's Administrative Manual.(1)

For the reasons fully explained in sections III through IX of this decision, we dismiss the petition for review as to Provisions 1 through 6 and find that Provision 7 is within the duty to bargain.

In particular, we find that Provision 1, which designates the Associate Commissioner, Enforcement, as responsible for approving or denying requests for tour extensions and home leave and requires that decisions on such requests be consistent with Government-wide and Agency policies and regulations, is not within the duty to bargain because it affects management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) and does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. See Section III, infra. Provision 2, limiting the noncompetitive actions that the Agency can use in filling positions overseas to those outlined in the Merit Promotion and Reassignment Plan, is not within the duty to bargain because it affects management's right to make selections from any appropriate source under section 7106(a)(2)(C) and does not constitute an appropriate arrangement. See Section IV, infra. Provision 3, which concerns the length of tours of duty at overseas posts, is not within the duty to bargain because it affects management's right to assign employees under section 7106(a)(2)(A) and does not constitute an arrangement under section 7106(b)(3). See Section V, infra. Provision 4, limiting the Agency's authority to adjust tours of duty, is not within the duty to bargain because it affects management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) and does not constitute an appropriate arrangement. See Section VI, infra.

Provision 5, concerning the payment of return travel and transportation expenses for employees who transferred to posts of duty outside the continental United States, is not within the duty to bargain because it is inconsistent with 5 U.S.C. § 5722(c), a Federal law. See Section VII, infra. Provision 6, which obligates the Agency to place an employee whose tour of duty overseas has been involuntarily extended for more than 6 months in one of three funded vacancies chosen by the employee, is not within the duty to bargain because it affects management's rights to assign employees and make selections from any appropriate source and does not constitute an appropriate arrangement. See Section VIII, infra.

Provision 7 establishes 1 year as the minimum period of service required for purposes of employee eligibility for payment of return travel and transportation expenses from an overseas post of duty and is within the duty to bargain. See Section IX, infra. We find that this provision is not inconsistent with law and Government-wide regulation and that it does not affect management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B). As discussed below, we order the parties to bargain over Provision 7.

II. Preliminary Issues

A. Positions of the Parties

1. The Agency (2)

The Agency contends that the petition should be dismissed because it is not properly before the Authority and offers several arguments in support of this contention.

First, the Agency asserts that the Federal Service Impasses Panel (Panel) improperly referred the "alleged impasse" underlying this case to an interest arbitrator. Specifically, the Agency contends that where, as in this case, interest arbitration results from proceedings under section 7119(b)(1) of the Statute, the Panel is obligated to determine whether it has jurisdiction to resolve an "alleged impasse" with respect to proposals that an agency claims are nonnegotiable before ordering parties to submit those proposals to an interest arbitrator. Second, the Agency asserts that the interest arbitrator exceeded his authority by making determinations regarding the duty to bargain under section 7117 of the Statute with respect to Provisions 1, 2, 4, 5, 6, and 7. Third, the Agency argues that the interest arbitrator lacked authority to rule on the Agency's claim that it was not obligated to bargain over Provision 3 mid-term and that the parties were not "involved in collective bargaining" within the meaning of section 7117(c) with respect to that provision. Last, the Agency contends that the Union failed to make a selection between processing the unfair labor practice charge in Case No. BN-CA-30073 and the negotiability petition in this case as required by sections 2423.5 and 2424.5 of the Authority's Regulations.

2. The Union

The Union asserts that the petition in this case is properly before the Authority. In response to the Agency's first argument, the Union contends that the Panel and interest arbitrators have the same authority under the Statute to consider duty-to-bargain issues that arise in a negotiation impasse and, consequently, the Panel can delegate its responsibility for resolving such issues to an interest arbitrator. As to the Agency's second argument, the Union asserts that the interest arbitrator properly resolved duty-to-bargain issues with respect to Provisions 1, 2, 4, 5, 6, and 7 under the criteria set forth in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620, 624 (1988). Concerning the Agency's third argument, the Union contends that the interest arbitrator was empowered to rule on the duty-to-bargain issue raised by the Agency with respect to Provision 3 and that the Agency's duty to bargain extends to that provision because it concerns a matter addressed by the proposed regulation over which the parties were bargaining. As to the Agency's last argument, the Union claims that no selection is required because the negotiability petition and the ULP charge involve different issues.

B. Analysis and Conclusions

For the following reasons, we find that the negotiability petition in this case is properly before us.

Section 7117(c) of the Statute establishes the jurisdictional requirements for petitions filed under that section. Specifically, if "an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the Authority . . . ." 5 U.S.C. § 7117(c)(1). The petition must be filed on or before the 15th day after the date on which the agency makes the allegation.(3) Nothing in section 7117(c) conditions the Authority's jurisdiction to render a decision regarding a duty-to-bargain allegation on the jurisdiction under section 7119 of the Panel or interest arbitrator to impose the provision that is the subject of the petition. See Patent Office Professional Association v. FLRA, 26 F.3d 1148 (D.C. Cir. 1994) (POPA v. FLRA) (in reviewing a decision of the Authority issued under section 7117(c), the court affirmed the Authority's negotiability determinations as to some provisions despite finding that the arbitrator lacked jurisdiction to award those particular provisions). Thus, the Agency's arguments that the Panel improperly referred the impasse to the interest arbitrator and the interest arbitrator exceeded his authority in making duty-to-bargain determinations do not demonstrate that the Authority lacks jurisdiction over the Union's petition.

We find that the petition in this case meets the conditions specified in section 7117(c): (1) the Agency head timely disapproved the provisions that are the subject of this petition, which serves as an allegation that the duty to bargain does not extend to a matter because, as proposed, the matter is inconsistent with law, rule or regulation; (2) the petition was filed on or before the 15th day after the allegation was made; and (3) with the exception of Provision 3, the Agency does not dispute that it was involved in collective bargaining with the Union.

As to Provision 3, the Agency argues that it had no duty to bargain in the context of mid-contract negotiations and, because it had consistently refused to bargain on that basis, the parties were not "involved in collective bargaining" over that particular provision so as to meet the requirements for an appeal under section 7117(c). The Agency's arguments are unpersuasive. Provision 3 clearly concerns the proposed Administrative Manual chapter over which the parties were actively engaged in collective bargaining and there is no indication in the Statute or legislative history that parties must do more to be "involved in collective bargaining" within the meaning of section 7117(c). Cf. American Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627 (1983) (union was entitled to a determination under section 7117(c) on a contracting-out proposal despite agency arguments that no duty to bargain over the particular proposal existed based on waiver and existence of executed provisions; court noted that parties agreed that contracting-out was under discussion during contract negotiations.)

We also reject the Agency's argument that the Union was required under sections 2423.5 and 2424.5 of the Authority's Regulations to choose between the negotiability and unfair labor practice procedures. When a union files both an unfair labor practice charge and a negotiability petition on the same issue, those sections provide that ordinarily both cases will not be processed simultaneously and the union must select which will go first. However, those regulatory provisions do not apply here because the unfair labor practice charge in Case No. BN-CA-30073 does not involve the same issue as any of the provisions contained in the petition in this case. That unfair labor practice charge alleges that the Agency had unilaterally changed conditions of employment by directly hiring four Border Patrol agents in Puerto Rico who were excluded from the overseas rotation policy. None of the provisions contained in the petition in this case involve that particular issue. In fact, review of the interest arbitrator's award reveals that the arbitrator declined to rule on a proposal before him that concerned local hiring for positions in Puerto Rico and application of the overseas rotation policy to employees who had been hired locally.

In sum, the petition in this case is properly before us.

III. Provision 1 (4)

[1] Associate Commissioner, Enforcement Approves or denies requests for tour extensions and home leave for employees under his/her jurisdiction. [2] Except to the extent that government-wide policies and regulations expressly confer discretionary authority, all such decisions will be consistent with those policies and regulations and the policies of the Service.

A. Positions of the Parties

The Agency contends that the first sentence interferes with management's right to assign work by requiring it to assign responsibility for deciding requests for tour extensions and home leave to the Associate Commissioner, Enforcement.(5) The Agency asserts that the second sentence interferes with management's rights to assign employees and assign work by requiring that Agency decisions regarding the length of assignments and release of employees from duties to take leave must be consistent with regulations other than those having the force and effect of law. The Agency further argues that this portion of the provision does not constitute an appropriate arrangement because it applies to all employees assigned overseas regardless of whether they have been adversely affected by a management action under section 7106 of the Statute.

According to the Union, the first sentence "simply mirrors the Agency's proposal" that a specific management official be responsible for decisions on requests for tour extensions and home leave. Petition at 3. The Union states that, under this provision, the Agency remains free to delegate the responsibility for such decisions to any manager. Although the Union makes a bare assertion in its petition for review that all of the provisions are appropriate arrangements within the meaning of section 7106(b)(3) of the Statute, it makes no specific arguments on that point with respect to the first sentence of this provision.

The Union asserts that the second sentence is negotiable because under Authority precedent proposals that require an agency to adhere to applicable laws, rules and regulations constitute appropriate arrangements for adversely affected employees. The Union contends that this sentence is limited to employees who are assigned overseas and disputes the Agency's claim that not all of the employees to whom this sentence would apply are adversely affected. According to the Union, the adverse effects on employees of the misapplication of the regulations and policies to which the second sentence refers are apparent from the facts that only one bargaining unit employee assigned to Puerto Rico has voluntarily extended his tour there and "numerous employees have experienced problems in administration of requests for home leave." Response at 7.

B. Analysis and Conclusions

1. The First Sentence

The Union's statement of intent that this sentence leaves the Agency free to delegate the responsibility for making decisions on requests for tour extensions and home leave to any manager is inconsistent with the wording of the provision. The wording of this provision specifically designates only the Assistant Commissioner, Enforcement, as the official holding the responsibility for approval of the specified requests. It is well established that where a union's asserted intent is inconsistent with the plain wording of a proposal,(6) it is not given effect. E.g., American Federation of Government Employees, Local 2879, and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, San Diego, California, 49 FLRA 1074, 1081 (1994). Consequently, we do not adopt the interpretation of this sentence that is proffered by the Union.

Proposals requiring the assignment of a specific function to a particular individual, including management officials, have been held to directly interfere with management's right under section 7106(a)(2)(B) to assign work. Compare, e.g., National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 737 (1992) (Customs Service) (proposal requiring that employee's immediate supervisor make acceptable level of competence determination directly interferes with management's right to assign work) with Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 528-29 (1990) (Member Armendariz dissenting in relevant part) (Authority found provision negotiable even though it required "the supervisor" to perform a particular function, in view of the apparent agreement between the parties that the function need not be performed by a particular individual). As the first sentence of this provision designates the particular management official who will be responsible for a specific function, it affects management's right to assign work.

The fact that the provision may mirror an agency practice or proposal does not render it negotiable. E.g., Customs Service, 46 FLRA at 779; 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, 473 (1990), remanded as to other matters, No. 91-1045 (D.C. Cir. July 23, 1991). As a general matter, an agency cannot be required through collective bargaining to exercise its management rights in accordance with external limitations. E.g., American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1075-76 (1990) (Dept. of Education), request for reconsideration denied, 39 FLRA 1241 (1991), reversed as to other matters, U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992) (Minerals Management Service). Consequently, proposals requiring that an agency exercise its management rights in accordance with law and regulation interfere with those rights. Dept. of Education, 38 FLRA at 1075-76. As an exception to this general rule, proposals that require an agency to exercise section 7106(a)(2) management rights in accordance with law and regulations do not interfere with those rights as long as those authorities constitute "applicable laws" within the meaning of that section. National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377 (1991) (IRS), reversed as to other matters, 996 F.2d 1246 (D.C. Cir. 1993). For an external limitation to constitute "applicable law" within the meaning of section 7106(a)(2), it must have certain substantive and procedural characteristics, as described in IRS. 42 FLRA at 391-93. In sum, while an agency may through practice or regulation exercise its rights under section 7106(a) in a particular manner, under extant Authority and judicial precedent, it cannot be required to commit itself through a bilateral agreement with a union to exercise those rights in that manner.(7) See, e.g., Philadelphia Metal Trades Council and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 38 FLRA 59, 62 (1990).

Even if the first sentence mirrors an Agency proposal as to what will be included in its Administrative Manual, there is no argument here that the Administrative Manual constitutes applicable law. Therefore, the first sentence of this provision is outside the duty to bargain unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. See, e.g., National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Public Debt, 42 FLRA 1333, 1339 (1991), reversed as to other matters, 996 F.2d 1246 (D.C. Cir. 1993). In determining whether the provision is negotiable as an appropriate arrangement, we first examine whether it is intended as an arrangement for employees adversely affected by the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG). In addition to addressing the adverse effects of the exercise of management right(s), the purported arrangement must be "tailored" to compensate or benefit employees suffering those adverse effects. E.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (PTO) (Member Armendariz concurring in part and dissenting in part). If the proposal is such an arrangement, we then determine whether the arrangement is appropriate or inappropriate because it excessively interferes with management's rights. KANG, 21 FLRA at 31-33.

Although the Union asserts that all of the provisions in this petition constitute appropriate arrangements, it does not explain, and the proposal does not by its terms speak to, the manner in which this sentence would address or compensate for the adverse effect of the exercise of a management right. As the record does not provide a basis for finding that this sentence addresses an adverse effect on employees attributable to the exercise of a management right, it does not constitute an arrangement. E.g., International Federation of Professional and Technical Engineers, Local 3 and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 51 FLRA 451, 457 (1995) (Philadelphia Naval Shipyard). Therefore, it is unnecessary for us to address whether, if this sentence constituted an arrangement, it would be found appropriate within the meaning of section 7106(b)(3). E.g., id.

2. The Second Sentence

The right to assign employees includes the right to determine the duration of the assignment. E.g., National Association of Government Employees and Veterans Administration, Veterans Administration Medical Center, Brockton/West Roxbury, Massachusetts, 37 FLRA 263, 274 (1990) (VA, Brockton/West Roxbury); National Treasury Employees Union and United States Customs Service, 31 FLRA 31, 33 (1988) (NTEU and Customs Service). It follows that decisions on requests for tour extensions are exercises of the right to assign employees.

The right to assign work includes the right to make specific work assignments and the right to determine their duration. E.g., American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, District Office, Oceanside, California, 49 FLRA 279, 284 (1994). Where the scope of duties performed at a particular post of duty is different from that at other posts of duty, a proposal that prevents an agency from reassigning an employee from one post to another directly interferes with management's right to assign work. See NTEU and Customs Service, 31 FLRA at 33. The Agency states in conjunction with another provision included in the petition in this case, and the Union does not dispute, that Puerto Rico is the only Border Patrol post of duty where employees must operate ocean-going craft for the purpose of intercepting aliens attempting illegal entry into the United States. Statement of Position at 39. Thus, the record establishes that there are duties performed in Puerto Rico that are unique to that post. In this circumstance, a decision on whether to approve a request for a tour extension in Puerto Rico is in effect a determination of whether to continue the assignment of particular duties to an employee, and as such constitutes an exercise of management's right to assign work. See NTEU and Customs Service, 31 FLRA at 33.

In addition, it is well established that the authority to grant or deny annual or other leave to employees affects their ability to perform their duties and, therefore, is encompassed within management's right to assign work. E.g., American Federation of Government Employees, Council of Marine Corps Locals, Council 240 and U.S. Department of the Navy, U.S. Marine Corps, Washington, D.C., 50 FLRA 637, 640 (1995) (Marine Corps); Customs Service, 46 FLRA at 725. It follows that decisions on requests for home leave constitute an exercise of management's right to assign work.

This sentence requires the Agency to exercise section 7106(a)(2) rights in accordance with Government-wide policies and regulations and the policies of the Agency. Neither this provision nor the record further identify the policies and regulations with which the Agency would be bound to comply. However, the Agency asserts that not all of the regulations and policies with which the sentence would require compliance are "applicable laws," Statement of Position at 28, and the Union does not dispute this assertion. Thus, it is uncontroverted that at least some of the Agency policies encompassed by this sentence would not constitute applicable law as defined in IRS. Consequently, this sentence is, at best, overly broad. E.g., OEA v. FLRA, 827 F.2d. at 818 ("If a proposal is facially overbroad, in that it includes, along with matters that are negotiable, matters that the Employer cannot lawfully agree to, then the Employer has no obligation to negotiate over it."). Accordingly, this sentence affects management's authority to assign employees and assign work and is not within the duty to bargain unless it constitutes an appropriate arrangement.

As stated in conjunction with sentence 1 of this provision, in addition to addressing the adverse effects of the exercise of management right(s), a purported arrangement must be "tailored" to compensate or benefit employees suffering those adverse effects. E.g., PTO, 49 FLRA at 184. That is, section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. See, e.g., Minerals Management Service, 969 F.2d at 1162. Section 7106(b)(3) does not bring within the duty to bargain proposals that are so broad in their sweep that the "balm" afforded would be applied to employees indiscriminately without regard to whether the group as a whole is likely to suffer adverse effects as a consequence of management action under section 7106. See, e.g., PTO, 49 FLRA at 184.

This sentence applies to "all" decisions on requests for tour extensions and home leave and is not limited to decisions adverse to the employee. For example, it is difficult to conceive a scenario in which an employee whose request is granted is adversely affected by the Agency's decision; the record does not establish that, as a general matter, bargaining unit employees are likely to be harmed by the Agency's decisions on their requests even when such decisions are favorable. Consequently, we find that this sentence is not sufficiently tailored to constitute an arrangement. E.g., Minerals Management Service (proposals requiring agencies to comply with, among other things, rules and regulations in exercising management rights did not constitute arrangements because they were not tailored).(8) In view of this finding, it is unnecessary to address whether, if this sentence constituted an arrangement, it would be appropriate under section 7106(b)(3).

3. Conclusion

Based on the foregoing, we conclude that Provision 1 is not within the duty to bargain.

IV. Provision 2

Most positions at locations outside the continental United States are filled by INS [Immigration and Naturalization Service] employees in accordance with the Merit Promotion and Reassignment Plan (MP&RP), which covers bargaining unit positions or the Merit Staffing Plan II (MSP II), which covers non-bargaining unit positions. Various noncompetitive actions, e.g. reassignments may also be used to fill positions covered by this program in accordance with the provisions of the Merit Promotion and Reassignment Plan. [Only the underscored portion is in dispute.]

A. Positions of the Parties

The Agency contends that the disputed portion of this provision directly interferes with management's right to make selections from any appropriate source because it would restrict the Agency's ability to determine the sources from which it will make selections. In support of this contention, the Agency asserts that the sources listed in the Merit Promotion and Reassignment Plan do not encompass all "appropriate sources" within the meaning of section 7106(a)(2)(C). Additionally, the Agency argues that the disputed portion of this provision directly interferes with management's right to assign employees.

The Union contends that this provision is negotiable, citing the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 909 and Department of the Army, Headquarters, Military Traffic Management Command, Washington, D.C., 6 FLRA 502 (1981) (Military Traffic Management Command). According to the Union, the disputed sentence obligates the Agency to observe limitations contained in the Merit Promotion and Reassignment Plan, which was negotiated between the parties in 1970 and constitutes a valid and binding agreement.

B. Analysis and Conclusions

Under section 7106(a)(2)(C), agencies retain the discretion to fill positions by selecting candidates from any appropriate source without restriction. E.g., Laurel Bay Teachers Association, OEA/NEA and U.S. Department of Defense, Stateside Dependents Schools, Laurel Bay Schools, Laurel Bay, South Carolina, 49 FLRA 679, 683 (1994) (Laurel Bay Schools) (proposals that require management to fill vacancies from a single source directly interfere with management's right to select from any appropriate source). The underscored portion of this provision obligates the Agency to follow the Merit Promotion and Reassignment Plan in filling positions at locations outside the continental United States through noncompetitive actions. It is undisputed that the Merit Promotion and Reassignment Plan limits the sources from which the Agency can fill positions and there is no claim that it constitutes an applicable law. In view of this limitation, we find that the disputed sentence affects the Agency's right to make selections from any appropriate source under section 7106(a)(2)(C).

Although, facially, this provision is to the same effect as the proposal in Military Traffic Management Command, on which the Union relies, underlying circumstances render them distinguishable. While in both cases the disputed proposal cross-references the relevant agency's merit promotion plan, the plan referenced in Military Traffic Management Command did not limit the sources from which selections could be made. Here, by contrast, it is undisputed that the Merit Promotion and Reassignment Plan limits the sources from which the Agency can make selections.

Even if the Agency agreed to the limitations when it negotiated the Merit Promotion and Reassignment Plan in 1970, which was prior to the effective date of the Statute, it is not bound to continue such limitations. While section 7135 of the Statute permits parties to a lawful agreement entered into before the effective date of the Statute to renew or continue its terms, either party may object to the continuation of provisions that it asserts are inconsistent with the requirements of the Statute. International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 349 (1988); Interpretation and Guidance, 2 FLRA 274 (1979). Where a party objects to the continuation of such provisions, the parties are obligated to comply with the requirements of the Statute. E.g., Office of Program Operations Field Operations, Social Security Administration, San Francisco Region, 10 FLRA 172, 178 (1982).

Although the Union asserts that all of the provisions in this petition constitute appropriate arrangements, it does not explain, and the proposal does not by its terms address, the manner in which this sentence would address or compensate for the adverse effect of the exercise of a management right. As the record does not provide a basis for finding that this sentence addresses an adverse effect on employees attributable to the exercise of a management right, it does not constitute an arrangement. E.g., Philadelphia Naval Shipyard, 51 FLRA at 457. Therefore, it is unnecessary to address whether, if it constituted an arrangement, it would be found appropriate. E.g., id.

Based on the foregoing, we conclude that the disputed sentence is not within the duty to bargain. In view of this conclusion, it is unnecessary to address the Agency's additional claim that the disputed sentence affects management's right to assign employees.

V. Provision 3

Bargaining unit: 2 + 1 + 1 + 1 Employees will serve a two-year initial tour of duty. When an employee requests an extension of tour, one year extensions may be granted at the discretion of appropriate management officials. [Only the underscored portion is in dispute.]

A. Positions of the Parties

The Agency argues that this provision interferes with management's right to assign employees by specifying the length of an assignment. The Agency contends, without support, that this provision also interferes with management's right to make selections from any appropriate source. Finally, the Agency asserts that because the costs entailed in relocation and training are greater in connection with assignment to Puerto Rico, this provision interferes with its right to determine its budget under section 7106(a)(1).

The Agency argues that this provision does not constitute an appropriate arrangement in view of the fact that positions in Puerto Rico generally are filled by competitive procedures rather than by involuntary reassignments and, thus, employees effectively volunteer for assignment there. Moreover, the Agency asserts that a significant number of employees have requested extensions of their tours of duty there, demonstrating that employee reaction to assignment in Puerto Rico is not uniformly negative.

The Union does not challenge the Agency's assertion that this provision interferes with management's rights but instead argues that the extent of such interference is minimal and outweighed by employee interests. The thrust of the Union's claim that this provision constitutes an arrangement under section 7106(b)(3) is that employees are adversely affected by assignment to a position in a location where conditions are viewed as unfavorable. The Union challenges the Agency's contention that a number of employees have a favorable view of conditions in Puerto Rico as unsubstantiated and inconsistent with facts developed at the arbitration hearing.

B. Analysis and Conclusions

The Agency's established policy is a 3-year initial tour of duty for positions in Puerto Rico and its proposed revision of Chapter 2274 reflects that policy. The disputed portion of this provision sets 2 years as the length of the initial tour of duty to positions outside the continental United States. For the reasons discussed above in conjunction with the second sentence of Provision 1, the disputed portion of this provision affects the exercise of management's right to assign employees. E.g., NTEU and Customs Service, 31 FLRA at 33.

The Union does not dispute the Agency's statement that positions in Puerto Rico are generally filled by competitive procedures and, thus, that employees effectively volunteer for assignment there.(9) Moreover, the record shows that the Agency's policy of a 3-year initial tour of duty in Puerto Rico was established at the inception of that post in 1987 and there is no assertion that this policy is not known to employees applying for competitive selection to a position there. Nor is there any indication that the Agency has misrepresented or concealed the conditions that exist in Puerto Rico. Thus, there is no basis for concluding that employees who volunteer for a 3-year assignment to Puerto Rico are adversely affected, as a general matter, by the Agency's action in choosing them for the position for which they have applied. See Philadelphia Naval Shipyard, 51 FLRA at 459 (proposal was not sufficiently tailored because, among other things, it would also apply to employees who voluntarily accepted reassignments for other than RIF-related reasons).

As with the second sentence of Provision 1, we find that this provision is not sufficiently tailored to compensate or benefit employees who suffer adverse effects as a consequence of the exercise of a management right and, therefore, does not constitute an arrangement within the meaning of section 7106(b)(3) of the Statute. Consequently, it is unnecessary to address whether it is "appropriate" under the KANG analysis. It is also unnecessary to address the Agency's assertion that this provision affects additional management rights.

Based on the foregoing, we conclude that Provision 3 is not within the duty to bargain.

VI. Provision 4

Management retains the authority to adjust tours of duty as needed to meet urgent operational/administrative requirements, provided that any such adjustment of a tour of duty shall not exceed one year in duration. [The underscored portion is in dispute.]

A. Positions of the Parties

The Agency asserts that this provision interferes with its management rights to assign employees and assign work.

The Agency disputes the arbitrator's finding that this provision constitutes an appropriate arrangement. The Agency requests that the Authority conduct a fact-finding hearing with respect to the issue of conditions in Puerto Rico rather than accept the arbitrator's characterization of those conditions. The Agency argues that placing limitations on the extent to which it may extend tours of duty excessively interferes with its management rights in view of the higher training and relocation costs entailed in assignment to Puerto Rico and the inability to reliably predict patterns of illegal immigration. The Agency also asserts that this provision does not constitute an arrangement because it is not limited to employees who are adversely affected by the exercise of management's rights.

The Union does not contest the Agency's assertion that this provision interferes with management's rights. However, it contends that the arbitrator correctly found that this provision constitutes an appropriate arrangement and accurately characterized the state of living and working conditions in Puerto Rico. The Union challenges as unsupported the Agency's claim that special training is required for assignment to Puerto Rico. The Union contends that employees who volunteer for assignment to Puerto Rico do so for a tour of duty of specified length and not for a lifetime assignment.

B. Analysis and Conclusions

As discussed above, management's right to assign employees includes the right to determine the duration of the assignment. E.g., VA, Brockton/West Roxbury, 37 FLRA at 274; NTEU and Customs Service, 31 FLRA at 33. Proposals that require management to exercise its rights under section 7106 of the Statute in accordance with specific substantive criteria affect the exercise of those rights. National Association of Government Employees, SEI, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 683 (1991).

This provision limits the Agency's ability to adjust the length of an assignment to circumstances in which there is an urgent operational/administrative need to do so. The provision also limits any adjustment to a 1-year duration. In establishing these restrictions, the provision limits the Agency's ability to determine the duration of assignments to positions overseas and affects the exercise of management's right to assign employees.

Proposals that restrict management in determining the duration of work assignments also affect the exercise of management's right to assign work. E.g., American Federation of Government Employees, Local 1658 and U.S. Department of the Army, Army Tank-Automotive Command, Warren, Michigan, 44 FLRA 1375, 1379 (1992). As discussed above, assignment to Puerto Rico encompasses the assignment of duties unique to that post. Because this provision limits the Agency's ability to determine the length of that work assignment, it affects the exercise of management's right to assign work under section 7106(a)(2)(B).

Even assuming that this provision is sufficiently tailored to constitute an arrangement within the meaning of section 7106(b)(3), we find, under the KANG analysis, that it is not "appropriate." To decide whether a proposed arrangement is appropriate, the Authority balances the respective interests of the Agency and employees to determine whether a proposed arrangement excessively interferes with the Agency's right(s). KANG, 21 FLRA at 31-33.

This provision would afford a significant benefit to those employees who find assignment to Puerto Rico a hardship. Also, where an involuntary adjustment of a tour of duty is involved, this provision would benefit employees by affording them a greater degree of predictability and control with respect to the length of time that they would be assigned to Puerto Rico. However, this provision imposes a stringent restriction on management's rights to assign employees and assign work in that it permits adjustments to tours of duty only to meet "urgent" operational/administrative requirements and limits such adjustments to a one year duration. The mission of the Agency in this case includes the enforcement of laws concerning illegal immigration. It is clear from the record that the employees to whom this provision would apply perform the work of intercepting illegal immigrants. In view of this work and the Agency's inability to reliably predict changing patterns in illegal immigration, the Agency's need for flexibility in deploying such employees is critical to its ability to effectively and efficiently conduct its mission-related operations. The Agency's operations could be hampered if the Agency were required to establish a state of urgency each time it decided to adjust an employee's tour of duty to meet its operational needs. In addition, the Agency would be unable to adjust an assignment for more than one year. Accordingly, the provision would have a significant effect on the Agency's rights.(10)

In the circumstances of this case, the burden placed on the Agency's rights to assign employees and assign work outweighs the benefits that this provision affords employees. See, e.g., Marine Corps, 50 FLRA at 641 (provision, which permitted no exception in the face of valid workload needs to requirement that agency grant extended periods of leave without pay, excessively interfered with management's rights); cf. PTO, 49 FLRA at 195 (notwithstanding the absence of any provision for exceptions, prohibition on work assignment to supervisors constituted an appropriate arrangement inasmuch as it did not appear that the agency had any legitimate interest in making a work assignment that was inconsistent with Government policy).

Based on the foregoing, we conclude that this provision is not within the duty to bargain.

VII. Provision 5 (11)

For these purposes, termination of employment pursuant to a decision of management shall be considered to be beyond the control of the individual and acceptable to the Service.

A. Positions of the Parties

The Agency contends that under this provision all involuntary removals, including those for cause, would qualify an employee for payment of return travel and transportation expenses. The Agency acknowledges that it possesses statutory and regulatory authority to determine whether payment should be made. However, the Agency contends that Congress did not intend removals for cause to qualify an employee for payment, and that, in any event, Congress intended that only management could exercise the discretion involved in determinations of whether an employee qualifies for payment. The Agency asserts that this provision is not within the duty to bargain because it is inconsistent with Federal law, 5 U.S.C. § 5722(b), and Government-wide regulation, 41 C.F.R. §§ 302-1.5 and 302-1.13(d)(1). 

The Union describes this provision as "essentially acknowledging that all involuntary terminations are fully within the control of management, and deeming them to automatically be acceptable to the agency" for purpose of payment of return travel and transportation expenses. Petition at 8-9. The Union contends that the discretion afforded agencies to make the determinations necessary for payment is subject to negotiation.

B. Analysis and Conclusion

5 U.S.C. § 5722 authorizes travel and transportation expenses for new appointees who, upon hire, are assigned to posts of duty outside the continental United States. 5 U.S.C. § 5724 authorizes payment of such expenses for employees who transfer to posts of duty outside the continental United States to the same extent as prescribed for a new appointee under section 5722.(12) Under this statutory scheme, such expenses may be paid for the return of the employee from a post of duty outside the continental United States to the employee's place of actual residence at the time of overseas assignment only when the employee has served a minimum period of between 1 and 3 years prescribed in advance by the head of the agency. An exception to this service requirement is provided if the employee is separated for reasons beyond his or her control that are acceptable to the agency concerned. The Federal Travel Regulations (FTRs), which implement these statutory provisions, reiterate the statutory standard for exceptions from the service requirement.

It is well established that, insofar as an agency has discretion over a condition of employment, the discretion may be exercised through negotiations unless it is clear that Congress intended the discretion to be exercised solely and exclusively by the agency. E.g., International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 et al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 682 (1995), aff'd, No. 95-1499 (D.C. Cir. May 23, 1996) (mem.) (Engraving and Printing). However, if the particular exercise of discretion that a proposal seeks is inconsistent with law, the proposal is outside the duty to bargain under section 7117(a)(1). See, e.g., International Organization of Masters, Mates and Pilots, Marine Division, Panama Canal Pilots Branch and Panama Canal Commission, 51 FLRA 333, 344 (1995) (Panama Canal Commission).

The Authority resolves an agency's claim that a matter is not negotiable because the agency has sole and exclusive discretion by examining the plain wording and the legislative history of the statute the agency relies on. E.g., Engraving and Printing, 50 FLRA at 691-92. As written, section 5722 grants agencies the discretion to except employees from the service requirement contained therein. Nothing in the plain wording or legislative history of sections 5722 and 5724 demonstrates that the Agency's discretion to grant exceptions to the service requirement is intended to be sole and exclusive. For example, the statutory provisions contain no phrasing such as "without regard to other laws." E.g., id.

In exercising its discretion under section 5722 to except employees from the service requirement, the agency must determine: (1) whether an employee is separated for reasons beyond his/her control; and (2) if so, whether the reasons are acceptable to the agency.(13) Thus, the issue of whether Provision 5 is inconsistent with section 5722(c) depends on the precise meaning of these conditions, which are not further explained in either Section 5722 or relevant legislative history. In the absence of precise definitions of terms or phrases within a law or its legislative history, the Authority's practice is to interpret terms and phrases based on the ordinary meaning of the words used. E.g., Panama Canal Commission, 51 FLRA at 341 (1995).

Pursuant to the first condition, the Agency's discretion to grant an exception to the service requirements of section 5722 is limited to circumstances in which the "reasons" for an employee's separation are beyond the control of the employee. Webster's Third New International Dictionary 1891 (1986) defines "reason," among other things, as "an expression or statement offered as an explanation of a belief or assertion or as a justification of an act or procedure"; "a consideration, motive, or judgment inducing or confirming a belief, influencing the will, or leading to an action or course of action"; or "the thing that makes some fact intelligible: cause." Relying on the common meaning of the word "reason," the statutory phrase "separated for reasons beyond his control" applies to the justification or cause of the separation, or the considerations or motives inducing or leading to the separation.

As the Union suggests, the immediate cause of involuntary separations is generally not within an employee's control; for example, the agency controls whether an adverse action is initiated against an employee. However, in circumstances where a separation has an underlying cause that induces action to separate an employee, the phrase "separated for reasons beyond his control" is more naturally read as focusing on that underlying cause, i.e., the considerations or motives inducing or leading to the separation. To focus on the immediate cause in such circumstances would produce results that Congress surely did not intend. Such a construction of the statutory provision would mean that an adverse action taken in response to an employee's egregious, willful misconduct would be construed as a separation for reasons beyond the control of the employee based on the involuntary nature of the action that effects the separation.

An application such as this illustrates the illogic of the Union's emphasis on the type of action that effects the separation, rather than the reasons such action is taken. We are not persuaded that this is what Congress intended by the statutory exception for "reasons beyond [the employee's] control." Consequently, we find that an agency's discretion to grant an exception under section 5722 to the service requirement generally is limited to circumstances where the underlying cause of, or justification for, an employee's separation is beyond the employee's control. E.g., 64 Comp. Gen. 643, 646 (1985) ("We note that [the employee] was separated from the Federal service for cause, and although he may have had little control in his separation, the actions resulting in his separation were within his control.").

Provision 5 requires an exception to the service requirements for all involuntary separations based solely on their involuntary nature, without regard to whether the underlying justification or cause of the separation is beyond the employee's control. Consequently, it is inconsistent with section 5722(c).(14)

Based on the foregoing, we conclude that Provision 5 is not within the duty to bargain. In view of this conclusion, it is unnecessary to address the Agency's additional argument that this provision is inconsistent with a Government-wide regulation.

VIII. Provision 6

An employee whose tour of duty is involuntarily extended for more than six months shall be entitled to submit a list of three locations where funded vacancies exist, listed in order of preference, and shall be selected for one of those positions.

A. Positions of the Parties

The Agency asserts that this provision interferes with management's rights to assign employees and make selections in filling positions. As to the former right, the Agency asserts that because of shifting patterns in illegal immigration and its resultant need to redeploy its workforce, it must retain the ability to leave positions vacant. As to the latter right, the Agency contends that by requiring it to reassign an employee to one of three vacancies identified by the employee, this provision prevents it from filling positions from any appropriate source.

Although the Union denies that the provision interferes with management's rights, its supporting arguments concentrate on the limited extent to which the Agency's freedom to exercise its management rights would be curtailed. The Union defends the arbitrator's finding that this provision constitutes an appropriate arrangement, and contends that under this provision the Agency remains free to use outside candidates in filling all positions except where an employee meeting the criteria set forth in the provision chooses a particular position. Further, the Union claims that even in that circumstance, the Agency has control over which of the three positions identified by the employee would be filled with that particular employee.

B. Analysis and Conclusions

The right to assign employees encompasses determinations of the particular position to which an employee will be assigned. E.g., National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 43 FLRA 1442, 1458 (1992), remanded as to other matters, 30 F.3d 1510 (D.C. Cir. 1994). Additionally, requiring an agency to place an employee in a position without regard to whether the agency intends to fill the position directly interferes with that right. Id. Even though a position may be funded, an agency may for various reasons elect to leave it vacant. By requiring the Agency to place an employee in one of the three positions selected by the employee regardless of whether the Agency intends to fill the position, this provision affects management's right to assign employees under section 7106(a)(2)(A).

In addition, this provision requires the reassignment of an employee who meets the specified criteria and, thus, prevents the Agency from filling a position by selecting from other appropriate sources. Consequently, it also affects the exercise of management's right to make selections from any appropriate source. E.g., Laurel Bay Schools, 49 FLRA at 683.

Even assuming that this provision constitutes an arrangement within the meaning of section 7106(b)(3), we find that it excessively interferes with management's right to assign employees and, therefore, is not appropriate within the meaning of that section. Clearly, this provision would benefit any employee whose tour at an overseas post is involuntarily extended more than 6 months by affording that employee some degree of control over the next position to which he or she would be assigned. However, this provision permits no exception to the requirement that an employee be assigned to one of three positions identified by that employee and restricts management's ability to leave all three of those positions vacant regardless of management's reason for doing so. Thus, this provision would place a significant limitation on the Agency's ability to deploy its workforce and on management's right to assign employees to positions.

For the reasons discussed in conjunction with Provision 4, measures that restrict the Agency's flexibility to deploy its work force could place a significant burden on the Agency's ability to conduct its Government operations effectively and efficiently. In the circumstances of this case, the absence of any allowance for exceptions to the requirements established by this provision would have a deleterious effect on management's right to assign employees and on its ability to perform its mission that outweighs the benefit to employees. Cf. American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, San Jose District, San Jose, California, 46 FLRA 322, 331-32 (1992) (in finding a provision requiring that an employee selected for reassignment be given first right of refusal with respect to vacancies at the original work site was an appropriate arrangement, the Authority relied on, among other things, the fact that the provision left the agency free to determine whether to fill a vacancy). Compare National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 47 FLRA 370, 394-96 (1993), reversed as to other matters, 25 F.3d 229 (4th Cir. 1994) (the sixth sentence of Proposal 6, which placed an absolute requirement on an agency to reassign an employee to one of five work sites selected by the employee excessively interfered with management's rights and, consequently, was not an appropriate arrangement) with id. at 390-94 (the third sentence of Proposal 6 only required assignment to one of three posts selected by an employee, "if at all possible," and was an appropriate arrangement).

Based on the foregoing, we conclude that Provision 6 is not within the duty to bargain.

IX. Provision 7

An employee who has completed at least one year of service at an overseas or foreign assignment immediately prior to separation is eligible for return travel and transportation to his/her place of actual residence at the time he/she was assigned to the overseas duty station. An employee may return to an alternate location provided the cost to the government does not exceed the cost of travel and transportation to the place of actual residence.

A. Positions of the Parties

The Agency claims that this provision is inconsistent with Federal law, 5 U.S.C. § 5722(b), and Government-wide regulation, 41 C.F.R. §§ 302-1.5(b) and 302-1.12, because it would allow an employee to circumvent the service agreement required by those authorities. Additionally, the Agency asserts that it retains the discretion to determine the length of an overseas tour of duty within the 1 to 3-year range specified in those governing legal and regulatory provisions.

The Agency also argues that because this provision effectively limits to 1 year the tour of duty required of employees assigned to positions outside the continental United States, it directly interferes with management's rights to assign employees and assign work.

The Union asserts that this provision merely limits the minimum period that an employee assigned to a post of duty overseas must serve in order to be eligible for the payment of return travel and transportation expenses upon separation and denies that it is intended to change the length of the tour of duty itself. The Union maintains that this provision is consistent with the discretion that is vested in the Agency by law and regulation to determine the length of service required for eligibility for payment of return travel and transportation expenses upon separation.

B. Analysis and Conclusions

As discussed in conjunction with Provision 5, when an employee in a post of duty outside the United States separates from service, 5 U.S.C. §§ 5722 and 5724, operating together, authorize payment of expenses for the return of that employee to the employee's place of actual residence only after the individual has served a minimum period of not less than 1 nor more than 3 years, as prescribed in advance by the head of the agency. 41 C.F.R. §§ 302-1.5 and 302-1.12 reiterate this service requirement and indicate that the period of service is specified in a service agreement entered into by the employee who is being assigned overseas.(15) These implementing regulations indicate that the period of service required for payment of return expenses will be specified in the service agreement. 41 C.F.R. § 302-1.12(d).

Provision 7 does not circumvent the requirement that an employee enter into and fulfill a service agreement. Rather, this provision sets out in the Agency's regulation the length of the service requirement qualifying an employee for payment of the expenses of returning from an overseas post of duty upon separation from service. The 1-year period specified by the provision is within the range specified under governing law and regulation.

The Agency does not dispute that it possesses discretion under the FTRs and the underlying statutory provisions to determine, within the specified range, the length of service required of an employee for eligibility for payment of return expenses. The Agency offers nothing more than a conclusory argument that it has sole and exclusive discretion under those authorities. As discussed in conjunction with Provision 5, the Authority resolves an agency claim that a matter is not within the duty to bargain because it has sole and exclusive discretion under law by examining the plain wording and legislative history of the statute being relied on. Nothing in the plain wording or legislative history of section 5722 demonstrates that the Agency's discretion to determine the length of a service requirement within the range prescribed therein is intended to be sole and exclusive. Additionally, there is nothing in the wording of the regulatory provisions on which the Agency relies that demonstrates that the agency's discretion under those regulations cannot be exercised through collective bargaining. E.g., National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 759-62 (1980) (in the absence of specific provisions in a Government-wide regulation providing otherwise, agency's duty to bargain extends to matter about which it has discretion under that regulation).

As discussed in conjunction with Provisions 3 and 4, management's rights to assign employees and assign work encompass the authority to determine the duration of assignments. However, although related, the length of a tour of duty is a separate issue from the length of service required for the purpose of eligibility for payment of return travel and transportation expenses. In this regard, 5 U.S.C. § 5722(b) and (c) do not condition eligibility for payment of return expenses on completion of the term of an assignment. Rather, that authority establishes independent requirements relating to periods of service that must be met for the specific purpose of such eligibility.

The Agency's claim that this provision determines the length of the tour of duty is inconsistent with its plain wording, which concerns only an employee's eligibility for return expenses upon separation. Moreover, this provision is limited to authorizing payment of return expenses after 1 year of service at an overseas location only in the event of separation from Agency employment. It is speculative to assume that the availability of return expenses would by itself induce employees to separate from the Agency prior to the completion of their prescribed tours of duty. Consequently, we reject the Agency's claim that this provision affects its rights to assign employees and assign work by determining the length of the tour of duty.

Based on the foregoing, we conclude that Provision 7 is within the duty to bargain.

X. Order

A. Discussion

The only provision that we find within the duty to bargain is Provision 7. In general, where an Agency head disapproves a provision under section 7114(c), the Authority orders the Agency head to rescind the disapproval if the provision is within the duty to bargain. E.g., National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Western Region, 42 FLRA 964, 992 (1991). This practice applies both in circumstances where parties agreed to the provision and where provisions were imposed by the Panel or by an interest arbitrator in proceedings conducted pursuant to section 7119(b)(1). However, in this case, the Agency asserts that the provision was improperly awarded. This assertion is based on the fact that throughout the proceedings before the Panel and interest arbitrator the Agency maintained that the underlying Union proposal was nonnegotiable. In POPA v. FLRA, 26 F.3d 1148, the court found that the Authority erred in holding that proposals that were improperly imposed by an interest arbitrator were part of a collective bargaining agreement. In view of the court's decision, we address whether it is appropriate in this case to order the Agency head to rescind the disapproval of Provision 7. We conclude that it is not.

As defined by the Statute, the obligation to engage in collective bargaining "does not compel either party" to reach an agreement. 5 U.S.C. § 7103(a)(12). However, when impasse is reached in negotiations, the Panel, and by delegation, an interest arbitrator, may take whatever action is necessary to resolve the impasse, including the imposition of disputed terms on the parties. See 7119(c)(5)(B); POPA v. FLRA, 26 F.3d at 1153.(16) Consistent with this statutory scheme, the Authority does not issue orders in negotiability decisions under 7117 that in effect impose terms of collective bargaining agreements unless parties have voluntarily agreed to those terms or the terms were properly imposed on them pursuant to section 7119 of the Statute.(17) Compare, e.g., International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Corps of Engineers, South Pacific Division, San Francisco, California, 51 FLRA 3, 6 (1995) (Authority ordered agency to negotiate upon request over proposal) with, e.g., American Federation of Government Employees, AFL-CIO, Local 53 and U.S. Department of the Navy, Navy Material Transportation Office, Norfolk, Virginia, 42 FLRA 938, 963 (1991) (Authority ordered agency to rescind disapproval of provisions found negotiable, which were agreed to locally) and Overseas Federation of Teachers and U.S. Department of Defense Dependents Schools, Mediterranean Region, 49 FLRA 73, 76 (1994) (Authority ordered agency to rescind disapproval of provision that Panel directed parties to adopt).

In this case, the record shows that the Agency asserted that the Union's proposal underlying this provision was nonnegotiable throughout the proceedings before the Panel and the interest arbitrator. There is no evidence in the record that the parties bargained to impasse over the merits of that proposal.(18) Moreover, the record is devoid of any reference to clearly controlling precedent from which it could have been determined that the Union's proposal was within the duty to bargain or evidence that the Agency's position was based on frivolous or irrelevant considerations.(19) In these circumstances, we do not order the Agency head to rescind the disapproval but, instead, will order the parties to bargain over Provision 7. Such bargaining should be completed expeditiously with prompt resort to impasse resolution procedures if that becomes necessary.

B. The Order in This Case

The petition for review as to Provisions 1 through 6 is dismissed. The Agency shall upon request, or as otherwise agreed to by the parties, negotiate over Provision 7.(20)




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

1. Chapter 2274 governs and applies generally to assignments of Agency personnel at locations outside the continental United States. Other than Puerto Rico, there were no permanent positions in the Border Patrol bargaining unit at any such location at the time briefs were filed in this case, and the parties' arguments focus solely on Puerto Rico. While we address the provisions at issue in this case as if Puerto Rico were the only location at which they apply, that narrow focus is not determinative of the conclusions reached.

2. We deny the Agency's request in its statement of position that it be permitted to file additional arguments if the Union claimed in its response that Provision 6 was negotiable as an appropriate arrangement. We also do not consider a submission filed by the Agency that, the Agency asserts, responds to claims made by the Union for the first time in its response that the provisions constitute appropriate arrangements. Review of the record reveals no instance where the Union raised a new claim in its response.

3. Section 7117 does not establish any time limits for an agency allegation that the duty to bargain does not extend to a matter. Here, an Agency-head disapproval of an agreement serves as that allegation. E.g., National Federation of Federal Employees, Local 284 and U.S. Department of Defense, Naval Air Engineering Center, Lakehurst, New Jersey, 39 FLRA 973, 974 (1991), reconsideration denied, 39 FLRA 1537 (1991). In such circumstance, section 7114(c) of the Statute requires that disapproval occur within 30 days from the date the agreement is executed. The time limit for filing a negotiability appeal based on such an allegation is triggered by service of the allegation on the union. E.g., id. at 974.

4. As the parties have treated the two sentences in this provision separately, we have numbered them accordingly.

5. The parties do not provide a definition of the term "tour." However, based on the context in which the parties use the term, we interpret it to refer to the period of duty, or length of time, that an employee serves in a position at a location outside the continental United States. "Home leave," which is addressed by 5 U.S.C. § 6305, is a leave of absence that may be granted employees who are serving at a post of duty outside the United States.

6. The terms "proposal" and "provision" are used interchangeably for purposes of this decision.

7. We leave for an appropriate case exploration of whether under some circumstances an agency may, through a collective bargaining agreement, commit itself to adhere to its own rules and regulations when exercising management's rights.

8. Because the second sentence of Provision 1 would not apply only to employees who are adversely affected by management's decisions on requests for tour extensions and home leave, for the reasons stated in his dissent in PTO, 49 FLRA at 209-14, Member Armendariz agrees that that portion of Provision 1 does not constitute an arrangement within the meaning of section 7106(b)(3) of the Statute.

9. In fact, by its assertion in conjunction with Provision 4 that employees "volunteer for a tour of duty of a specified length, not for a lifetime assignment[,]" the Union effectively concedes that employees volunteer for assignment to Puerto Rico. Union's response at 11 (emphasis in original).

10. The circumstances present in this case are distinguishable from those in NTEU and Customs Service, in which the Authority found that a proposal to exempt customs inspectors currently assigned to preclearance facilities from an agency policy reducing tours of duty from 10 to 5 years was an appropriate arrangement. 31 FLRA at 34-36. Specifically, in NTEU and Customs Service, the agency did not present a need for flexibility in deploying its workforce as persuasive as that identified here. In that case, the only reasons given by the agency for the reduction were "the complexities of the mission of the Customs Service and the necessity for inspection personnel to be assigned a wide range of duties . . . ." Id. at 32.

11. This provision would be added to the following language in Chapter 2274 of the Administrative Manual:

The expenses for return travel, transportation, moving, and/or storage of household goods shall not be allowed unless the employee has served a minimum period of one year, unless the separation is for reasons beyond the control of the individual and acceptable to the Service.

12. In relevant part, 5 U.S.C. § 5722 provides:

(a) Under such regulations as the President may prescribe and subject to subsections (b) and (c) of this section, an agency may pay from its appropriations--

(1) travel expenses . . . and transportation expenses . . .; and

(2) these expenses on the return of an employee from his post of duty outside the continental United States to the place of his actual residence at the time of assignment to duty outside the United States.

. . . .

(c) An agency may pay expenses under subsection (a)(2) of this section only after the individual has served for a minimum period of--

. . .

(2) not less than one nor more than 3 years prescribed in advance by the head of the agency . . .;

unless separated for reasons beyond his control which are acceptable to the agency concerned. These expenses are payable whether the separation is for Government purposes or for personal convenience.

13. Both conditions must be present to authorize payment to an employee who doesn't fulfill the service requirement. See 41 C.F.R. § 302-1.5(b)(2)(ii) and 302-1.12(d) (regulations implementing section 5722 clearly state the two conditions in the conjunctive).

14. In view of the fact that this provision is inconsistent with the first condition, it is unnecessary to determine whether it is also inconsistent with the second condition, i.e., that reasons for a separation must be acceptable to the agency.

15. It is undisputed, and we agree, that 41 C.F.R. §§ 302-1.5(b) and 303-1.12 are Government-wide regulations within the meaning of section 7117(a). These regulations are part of a recodification, without substantive change, of Chapter 2 of the FTRs, which the Authority previously found was a Government-wide regulation within the meaning of section 7117(a) of the Statute. Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA 492, 505 (1987), aff'd as to other matters, 858 F.2d 769 (D.C. Cir. 1988).

16. In POPA v. FLRA, the court found that an interest arbitrator had improperly imposed disputed proposals under section 7119 because the parties had not bargained to impasse over those proposals. 26 F.3d at 1153. The court did not address whether there were any circumstances in which a disputed proposal could be imposed despite the fact that the parties had not bargained to impasse.

17. In contrast, the Authority is specifically authorized under section 7118(a)(7)(B) to remedy unfair labor practices by fashioning and ordering the terms of collective bargaining agreements. E.g., National Treasury Employees Union v. FLRA, 910 F.2d 964, 968 (D.C. Cir. 1990).

18. The record in this case does not show whether any bargaining occurred with respect to the Union's proposal underlying Provision 7 prior to the request for Panel assistance. In the proceedings before the Panel and interest arbitrator, the Agency submitted the relevant portion of its proposed revision of Chapter 2274 as its "proposal" and the Union submitted a proposal that altered that revision. The Agency asserted throughout those proceedings that the Union's proposal underlying Provision 7 was nonnegotiable because it was inconsistent with the FTRs and, according to the arbitrator, presented "no evidence on the merits" of the proposals. Petition, attachment 4 (in