52:1265(117)NG - - NTEU and Commerce, Patent and Trademark Office - - 1997 FLRAdec NG - - v52 p1265



[ v52 p1265 ]
52:1265(117)NG
The decision of the Authority follows:


52 FLRA No. 117

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF COMMERCE

PATENT AND TRADEMARK OFFICE

(Agency)

0-NG-2159

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 15, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendarizand Donald S. Wasserman, Members.(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).(2) The petition for review contains 7 proposals that were declared outside the duty to bargain during contract negotiations and 21 provisions that were disapproved by the Agency head under section 7114(c) of the Statute.(3) In this decision, we address 3 proposals and 7 provisions. We will address the remaining proposals and provisions in a separate decision. See 5 U.S.C. § 7117(c)(6).

For the reasons fully explained in sections III through XII of this decision, we reach the following conclusions with respect to the proposals and provisions examined herein.(4) We find that Proposal 4 is within the duty to bargain. We further find that the following provisions are not contrary to law: Article 13, Section 3(N); Article 16, Section 9; Article 18, Section 6; Article 26, Sections 2(B), 2(C), 6(A) and 6(B); Article 31, Section 5(B); and Article 32, Sections 5(B), 6 and 7. We dismiss the petition for review as to Proposals 2 and 7 and the provision denominated Article 16, Section 1(F).

More particularly, we find that Proposals 2 and 7, which would extend to employees with 1 year of service rights to arbitrate actions based on unacceptable performance and adverse actions, are outside the duty to bargain as they are contrary to law.

Proposal 4, which creates a scale to determine the amount of performance awards, is within the duty to bargain.

Article 13, Section 3(N), which calls for the removal of documentation regarding unacceptable performance from employee records, is not contrary to law.

Article 16, Section 1(F), which authorizes official time for a particular activity, is moot.

Article 16, Section 9, which authorizes Union representatives to schedule their use of official time, is not contrary to law.

Article 18, Section 6, which allows employees to use religious compensatory leave, is not contrary to law.

Article 26, Sections 2(B), 2(C), 6(A) and 6(B), which prescribes the bases on which the Agency can restrict and/or deny the use of both flexitime and compressed work schedules is not contrary to law.

Article 31, Section 5(B), under which the Agency grants quality step increases and/or cash awards, is not contrary to law.

Article 32, Sections 5(B), 6 and 7, which prescribes a process for dealing with dues remittances, is not contrary to law.

II.    Determining the Meaning to Be Ascribed to the Proposalsand Provisions

In interpreting a disputed proposal or provision, the Authority looks to its plain wording and any union statement of intent. If the union's explanation is consistent with the plain wording, the Authority adopts that explanation for the purpose of construing what the proposal or provision means and, based on its meaning, deciding whether the proposal is within the duty to bargain or the provision is not contrary to law. E.g., American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 138-39 (1995) (Fort McPherson). Where a proposal or provision is silent as to a particular matter, a union's statement clarifying the matter will be adopted if it is otherwise consistent with the wording of the proposal or provision. E.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996) (Laurel Bay). When a union's explanation is not supported by a reasonable construction, however, the explanation is deemed inconsistent with the plain wording of the proposal or provision, and the Authority does not adopt it for the purpose of determining whether the proposal is within the duty to bargain or the provision is contrary to law. 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, 459 (1995).

III.    Proposals 2 and 7

Proposal 2

Article 13 (Performance Appraisal), Section 3(E)(3)

A non-preference eligible (non-veteran) employee who has completed one year of continuous employment in the same or similar positions against whom an action based on unacceptable performance has been taken may, with the consent of the Union, appeal to arbitration in accordance with the terms of this Agreement.

Proposal 7

Article 36 (Adverse Actions), Section 6(c)

A non-preference eligible (non-veteran) employee who has completed one year of continuous employment in the same or similar positions against whom an adverse action has been taken may, with the consent of the Union, appeal to arbitration in accordance with the terms of this Agreement.

A. Positions of the Parties

1. Agency

The Agency asserts that the trial period and appeal rights for non-preference eligible excepted service (NEES) employees, such as the employees involved in this case, are specifically provided for by law. The Agency maintains that Proposals 2 and 7 are contrary to law. In support, the Agency relies on various court and Authority decisions and the language of 5 U.S.C. § 4303(e).

2. Union

The Union contends that: Proposal 2 is intended to provide access to arbitration under the parties' negotiated agreement for employees who have been subjected to actions based on unacceptable performance under 5 U.S.C. Chapter 43; Proposal 7 is intended to provide that same access for employees who have been subjected to adverse actions under 5 U.S.C. Chapter 75. The Union claims that the subject matter of the proposals is not specifically provided for by law because 5 U.S.C. § 4303 concerns appeal rights to the Merit Systems Protection Board (MSPB) and does not address access to arbitration under a negotiated grievance procedure. The Union also claims that, while bargaining unit employees are subject to a 2-year "trial" period established by 5 U.S.C. §§ 4303(e) and 7511(a)(1)(C), the proposals do not conflict with those provisions, which pertain only to MSPB appeal rights and not to a negotiated appeal right. Union's Response at 6. According to the Union, nothing in § 4303(e) specifically precludes employees from using a negotiated appeal right after 1 year of continuous employment.

As to Proposal 7, the Union also asserts that the Agency has not supported its argument that the proposal is contrary to law. The Union claims that the Agency's reliance on 5 U.S.C. Chapter 43 has no application to the proposal, which concerns adverse actions under 5 U.S.C. Chapter 75, and that the Authority should disregard the Agency's claim.

Finally, the Union states that both proposals constitute appropriate arrangements, under section 7106(b)(3) of the Statute, for employees who are adversely affected by the Agency's decision to subject them to actions based on unacceptable performance and to adverse actions.

B. Analysis and Conclusions

1. Meaning of the Proposals

Based on their plain wording, Proposals 2 and 7 would permit NEES employees with 1 year of continuous employment to grieve and arbitrate actions based on unacceptable performance and adverse actions.

2. The Agency's Arguments Are Properly Before Us

We reject the Union's claim that the Authority should not consider the Agency's argument with respect to Proposal 7. The Agency's contention that the proposal is inconsistent with law, and its reliance on various decisions to support that claim, satisfy the regulatory requirements set forth in part 2424 of the Authority's Regulations.

3. The Proposals Are Not Within the Duty To Bargain Because They Are Contrary to Law

Prior to the enactment of the Civil Service Due Process Amendments, Pub. L. No. 101-376, 104 Stat. 461 (1990) (the Amendments), NEES employees were excluded from the administrative notice and appeal procedures available to preference eligible and competitive service employees regarding actions based on unacceptable performance under 5 U.S.C. Chapter 43 and adverse actions under 5 U.S.C. Chapter 75. Consequently, the courts denied these employees access to negotiated grievance procedures to contest adverse actions. See Department of the Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467 (D.C. Cir. 1989), cert. denied, 493 U.S. 1055 (1990); U.S. Department of Health and Human Services v. FLRA, 858 F.2d 1278 (7th Cir. 1988). The courts stated that Congress had established a comprehensive remedial framework governing the civil service, constructing a scheme that would ensure uniformity in personnel decisions. The courts found that authorizing access to the negotiated grievance procedures for NEES employees would undermine this uniformity.

By enacting the Amendments, Congress extended to NEES employees the same notice and appeal procedures provided to employees in the competitive service and preference eligibles in the excepted service (although there are different periods of employment required to determine their initial eligibility to appeal).(5) Accordingly, following passage of the Amendments, there is no longer a basis for mandating the exclusion of NEES employees from coverage under negotiated grievance procedures. As a result, the Authority has found that provisions that extend to NEES employees access to negotiated grievance procedures that is comparable to the access provided to other civil service personnel are within the duty to bargain. See National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA 346, 359-60 (1991) (Provisions 4-8); National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 67-68 (1991) (IRS) (Provisions 16 and 17), rev'd as to other matters, 960 F.2d 1068 (D.C. Cir. 1992).

However, the Authority also has recognized that the scope of the grievance and arbitration rights negotiated in collective bargaining agreements must be commensurate with those afforded employees by the Amendments. IRS at 68-69. Thus, these rights must be the same for both competitive service employees and NEES employees (except for the different periods of employment required to determine their initial eligibility to appeal). Competitive service employees who have not completed the requisite time in service requirement, i.e., probationary employees, cannot grieve adverse actions such as separations. See U.S. Department of the Air Force, Nellis Air Force Base, Las Vegas, Nevada and American Federation of Government Employees, Local 1199, 46 FLRA 1323, 1325-26 (1993). Therefore, NEES employees who wish to utilize negotiated grievance and arbitration procedures to contest performance-based and adverse actions must complete the same service requirements as NEES employees who wish to challenge such actions before the MSPB. In all such instances, employees must have completed 2 years of current continuous service in the same or similar positions in an Executive Agency under other than a temporary appointment limited to 2 years or less.(6)

Proposals 2 and 7 would permit the arbitration of both performance-based and adverse actions by NEES employees after only 1 year of service. As such, the proposals would provide broader grievance and arbitration rights than statutory appeal rights. See United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1165-66 (1992) (proposal permitting temporary employees to grieve terminations for disciplinary reasons contrary to law because temporary employees denied procedural protections and appeal rights provided in 5 U.S.C. §§ 4303, 7503, and 7513); Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1428-30 (1991) (proposal permitting temporary employees to arbitrate terminations contrary to law because temporary employees denied procedural protections provided in 5 U.S.C. §§ 7511 and 7513). Accordingly, the proposals are outside the duty to bargain because they are contrary to law.

In light of this result, it is unnecessary to address the Agency's contention that appeal rights for NEES employees are specifically provided for by law. Also, it is unnecessary to address the merits of the Union's assertion that Proposals 2 and 7 are negotiable appropriate arrangements under section 7106(b)(3). The Authority will not consider whether a proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) where the proposal is outside the duty to bargain because it is contrary to a law other than the Statute. E.g., National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater System Center, Newport, Rhode Island, 42 FLRA 730, 756 (1991).

IV.    Proposal 4

Article 31 (Performance Awards), Section 3

A. For Trademark Examining Attorneys receiving a rating of "5" in the Critical Element of Production and at least a rating of "3" in every other Critical Element, the following awards scale based on Quantity of production shall be used to determine the amount of the award for which an individual is recommended.

 Percentage of QuantityProduction  Percentage of Salary Given as Award
   
 110-120%  3%
 121-130%  4%
 131-140%  5%
 141%+  6%

B. Any Trademark Examining Attorney who receives a rating of "4" in the Critical Element of Production and at least a rating of "3" in every other Critical Element shall be recommended for an award of 1% of salary if he/she attains a 105 - 109% quantity of production.

C. Any Trademark Examining Attorney who receives an average of "5" on the three Critical Elements of Quality and at least a rating of "3" on every other Critical Element shall be recommended for an award of 3% of salary.

D. All awards recommended under this program shall be subject to review and approval in accordance with 5 CFR 430.504(d). Such approval shall not be withheld unless the decision is based on criteria that are uniformly applied to all employees. Notices of disapproval must be in writing and explain the reason(s) for the disapproval.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 4 is outside the duty to bargain because it is inconsistent with 5 C.F.R. § 430.504(d), which requires that the Agency approve each award and the amount of the award individually.(7) The Agency claims that the Authority previously found comparable provisions to be nonnegotiable and cites various cases in support.

2. Union

The Union recognizes that the granting of awards is dependent on review and approval by the Agency under 5 C.F.R. § 430.504(d). The Union also maintains that Proposal 4 is "precisely the type of system" previously found negotiable by the Authority in that it establishes a formula for recommending officials to use in granting awards and subjects those "suggestions" to higher level review. Response at 14.

The Union also asserts that the proposal is a negotiable procedure under section 7106(b)(2) of the Statute. The Union explains that the proposal "records the procedure by which employees can be recommended for monetary performance[-]based awards[,]" and is comparable to a recording and disclosure proposal found negotiable in National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 45 FLRA 1346 (1992) (Defense Mapping Agency). Petition for Review at 4. Alternatively, the Union contends that Proposal 4 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute for employees who are adversely affected by the Agency's decision to deny them monetary awards.

The Union states that regulations published by the Office of Personnel Management (OPM), while this appeal was pending, eliminated the requirement for higher level review and approval contained in 5 C.F.R. § 430.504(d).(8) The Union asserts that "[t]he deletion of the regulation removes the Agency's sole basis for objection to Article 31, Section 3." Union's Supplemental Brief at 7-8.

B. Analysis and Conclusions

1. Meaning of the Proposal

Based on its express language, the proposal establishes a scale for determining awards based on levels of performance and rates of production. The proposal also provides for the review and approval of award recommendations in accordance with 5 C.F.R. § 430.504(d) and conditions the approval of awards based on uniformly applied criteria.

2. The Proposal Is Within the Duty to Bargain

During the pendency of this case, OPM issued regulations at 60 Fed. Reg. 43936-43948 (1995) that were designed to "deregulate performance management and incentive awards[.]" Id. at 43936. OPM explained its intent in the following terms:

OPM's intent in deregulating performance management was to give agencies a great deal of flexibility for both appraisal and awards so that the working organizations of the Federal Government could operate in a decentralized environment where the performance management procedures for planning, monitoring, evaluating, and rewarding individual, team, and organizational performance were tailored to fit local work technologies and cultures.

Id.

As relevant here, OPM "removed" 5 C.F.R. § 430.504(d). Id. at 43939. OPM stated that "[t]he requirement for higher-level review of awards had been proposed for removal to accommodate restructured organizational environments[,]" and to "focus on eliminating unnecessary layers of review to create flatter, more effective organizations. Such delayering could be used to establish more effective recognition systems." Id. The regulations pertaining to awards, that now appear in a revised 5 C.F.R. Part 451, require that agency award programs provide for: (1) obligating funds that are consistent with applicable agency financial management controls and delegations of authority; and (2) documenting justification for awards that are not based on ratings of record. 5 C.F.R. § 451.103(c)(1) and (2). 60 Fed. Reg. at 43946.

The Agency's sole basis for maintaining that Proposal 4 is not within the duty to bargain is its asserted inconsistency with a regulation that no longer exists. The Agency has made no argument that the proposal is inconsistent with the regulations that are presently in effect.(9) Accordingly, as there is no basis on which to find that Proposal 4 is contrary to law, rule, or regulation, we find that the proposal is within the duty to bargain.

V.    Article 13 (Performance Appraisal), Section 3(N) (10)

If because of performance improvement by the employee during the notice period, the employee is not reduced in grade or removed, and the employee's performance continues to be acceptable for 1 year from the date of the advanced written notice provided for in Section 3H of this article, any entry or other notation of the unacceptable performance shall be removed from any office record relating to the employee.

A. Positions of the Parties

1. Agency

The Agency states that because, under certain circumstances, the provision would require the Agency to destroy written records of an employee who is denied a within-grade increase, the provision is contrary to law and Government-wide regulation concerning the maintenance of records. According to the Agency, 5 U.S.C. § 2951 requires that personnel actions documenting the denial of within-grade increases must be maintained "for a number of reasons." Statement of Position at 9. In addition, the Agency explains that such documentation must be maintained under 5 C.F.R. § 531, subpart D and kept in the employee's Official Personnel Folder in accordance with 5 C.F.R. § 293.304.

2. Union

The Union claims that the provision paraphrases 5 C.F.R. § 432.109(b) and is negotiable.(11) The Union argues that the statute and regulations cited by the Agency do not relate to this provision because they do not concern notations or entries related to unacceptable performance. The Union also contends that the provision is similar to a proposal that the Authority found negotiable in Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 22 FLRA 15 (1986) (Proposal 10), requiring the destruction of forms documenting unacceptable ratings after 1 year.

B. Analysis and Conclusions

1. Meaning of the Provision

This provision relates to proposed removals and reductions in grade and would require the Agency to remove documentation regarding unacceptable performance from employee records. The provision does not expressly reference within-grade increases and does not, on its face, address the possibility that an employee may be denied a within-grade increase during the notice period following a proposed reduction-in-grade or removal. Moreover, based on the Union's arguments, it is clear that the Union does not intend for the provision to cover denials of within-grade increases in any way. As the Union's interpretation of the provision is consistent with its wording, we adopt it. Laurel Bay, 51 FLRA at 737. So construed, management would not be required under the provision to remove documentation concerning denials of within-grade increases from employee records.

2. The Provision Is Not Contrary to Law

The Agency's arguments are based solely on its view that the provision would prevent management from maintaining documentation on denials of within-grade increases. The provision would not have that effect based on the interpretation of the provision that we have adopted. The Agency has not explained how the statute and regulations on which it relies, addressing within-grade increases, are applicable to circumstances involving proposed removals and reductions in grade. As the Agency makes no argument that the removal of documentation regarding unacceptable performance is otherwise inconsistent with law, rule, or regulation, we find that the Agency head's disapproval of this provision was not in accordance with section 7114(c) of the Statute.

VI.    Article 16 (Union Representation and Official Time), Section 1(F)

1. Union representatives shall be authorized a reasonable amount of official time not to exceed 1500 hours to conduct the following activities:

F. attendance by one (1) representative, as a member of the public at Trademark Advisory Committee.

A. Positions of the Parties

1. Agency

In its statement of position, the Agency asserts that official time for a Union representative to act as a member of the public is not related to labor-management relations within the meaning of the Statute. Consequently, the Agency maintains that official time could not be authorized under section 7131(d) of the Statute. In a supplemental submission, the Agency states that "[t]he Trademark Advisory Committee (also called the Public Advisory Committee) has been abolished." Agency's Supplemental Brief at 6.

2. Union

In its response to the statement of position, the Union argues that because the Trademark Advisory Committee shares information concerning the work and working conditions of bargaining unit employees, having access to that information would enhance labor-management relations by ensuring that representatives of both parties have similar information during discussions that affect employees. The Union's additional arguments, in its response, are in further support of its position that the provision is consistent with section 7131(d).

In its supplemental brief, the Union states the following:

The Trademark Advisory Committee (TAC) served to provide the employer with input concerning issues related to the Agency's mission. Although the TAC may no longer exists [sic], the provision should apply to any group that performs a similar function.

Union's Supplemental Brief at 6.

B. Analysis and Conclusions

1. Meaning of the Provision

By its plain wording, this provision authorizes official time for a union representative to attend the TAC. The provision refers to the TAC only, and not to any similarly constituted body. We reject the Union's statement that the provision should be construed to apply to any group that performs a similar function to the TAC. As the express terms of this provision are limited to the TAC, any negotiability determination rendered by the Authority with respect to a prospective entity would essentially constitute an advisory opinion, the issuance of which is contrary to section 2429.10 of the Authority's Regulations.

2. The Provision Is Moot

A threshold question is raised as to whether this provision is moot because the TAC has been abolished. The Authority will dismiss a proposal as moot where, for example, a dispute has been rendered moot by the passage of time and a bargaining order would serve no purpose. E.g., National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA 1041, 1054 (1987). In view of the Agency's undisputed assertion that the TAC has been abolished, the passage of time has effectively rendered this provision moot. See Tidewater Virginia Federal Employees Metal Trades Council and Department of the Navy, Naval Public Works Center, Norfolk, Virginia, 14 FLRA 309 (1984) (union submitted proposal regarding method of deducting cost-of-living increases; after agency informed Authority that deduction was already made as a one-time, lump-sum amount, the Authority dismissed the petition as moot so as not to issue advisory opinion). Accordingly, we dismiss the petition for review as to this provision.

VII.    Article 16 (Union Representation and Official Time), Section 9

It is agreed and understood that when Union representatives intend to conduct official Union business, they will notify their supervisor by leaving a note on their desk indicating where they are and approximately how long they will be gone. If the presence of the representative would cause substantial disruption at that time, the supervisor may authorize an alternate time.

A. Positions of the Parties

1. Agency

The Agency contends that this provision directly interferes with management's rights to direct employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute because it would limit the Agency's authority to require Union officials to seek permission before leaving their work areas. In support, the Agency cites Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795 (1991) (POPA) (Provision 18). The Agency does not address the issue of whether the provision is an appropriate arrangement under section 7106(b)(3) of the Statute.

The Agency also states that the Authority's holding in National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 347-48 (1992) (BATF) (Member Armendariz dissenting in part as to other matters) is incorrect and "improperly expands the clear language of § 7131(d) which limits the scope of negotiability to the amount of official time." Agency's Supplemental Brief at 9 (emphasis in original). According to the Agency, "nothing in § 7131(d) requires the Agency to negotiate over the allocation or scheduling of the agreed upon amount of official time." Id. Alternatively, the Agency argues that the provisions in BATF are distinguishable from the provision here inasmuch as the provisions in that case required the employees and the union representatives to obtain advanced permission from their supervisors prior to engaging in union activities. The Agency states that the instant provision eliminates the supervisor from the process entirely and, as such, directly interferes with management's rights to direct employees and assign work.

2. Union

The Union claims that the provision is intended to allow for the appropriate use of official time. The Union also states that POPA does not apply here as that decision did not discuss official time.

In addition, the Union contends that the provision is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Union cites BATF in support. The Union argues that if the Agency restricts the Union representative in the conduct of official Union business, employees will be denied full and adequate representation by the Union. The Union further claims that if the Agency is allowed to have unilateral control over when the Union representative may contact an employee, the Union representative and the employees who seek representation would have no control over the scheduling and the duration of meetings. The Union claims that the Agency has not shown how the provision would interfere with its efficient and effective operations. The Union maintains that the provision would have an insignificant impact on management's ability to direct employees and to assign work because the supervisor would know the location of the Union representative at all times and could contact the representative to authorize an alternate time for a meeting if the representative's "temporary absence" would cause substantial disruption to the work process. Union's Response at 38. The Union argues that the benefits of the provision to the employees outweigh the negative impact on management's rights.

The Union further states that the provision is consistent with BATF. The Union urges the Authority to disregard the Agency's discussion of that case. The Union states that BATF could have been raised by the Agency in its statement of position and that, "[i]n the interest of procedural fairness," the Authority should not consider new arguments that were not raised in a timely fashion. Union's Supplemental Statement at 6.

B. Analysis and Conclusions

1. Meaning of the Provision

This provision permits Union representatives who are conducting official Union business to notify their supervisors, by written note, regarding their location and the expected length of their absence. As such, this provision concerns the scheduling of official time by Union representatives. The provision also permits supervisors to authorize a different time during which Union representatives may conduct official Union business in cases where the "presence" of the representative would cause "substantial disruption." The Union explains that the term substantial disruption is intended to refer to disruption that could occur at the representative's work station, rather than at the work station of the employee with whom the representative is dealing. As such, we construe the provision to mean that the union representative's supervisor may authorize an alternate time for the use of official time when the representative's absence would cause a substantial disruption.

2. The Agency's Arguments Regarding BATF Are Properly Before Us

We deny the Union's request that we not consider the Agency's arguments pertaining to BATF. The Authority specifically directed the parties to address the negotiability of this provision in light of BATF and Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922 (1990) (IRS v. FLRA). The Agency's arguments are timely and properly before the Authority in this proceeding.

3. The Provision Is Not Contrary to Law

As this provision concerns the scheduling of official time, its disposition involves an analysis of section 7131(d) of the Statute and the scope of the "carve-out" exception to management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B).(12)

Recently, the Authority had occasion to address the application of this exception to a claim that an arbitration award relating to official time matters was contrary to sections 7106(a)(2)(A) and (B) of the Statute. In U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees (Worldwide Consolidated Bargaining Unit), 51 FLRA 1371 (1996) (Chair Segal dissenting in relevant part), a majority of the Authority adhered to the view that section 7131(d) carves out an exception to various management rights, absent emergency or other special circumstances. This conclusion was based on Authority precedent in such cases as BATF and Military Entrance Processing Station, Los Angeles, California, 25 FLRA 685 (1987) (MEPS), and relevant judicial opinions.(13) The majority also stated that "the reference in section 7131(d) to the granting of official time 'in any amount' . . . encompasses the allocation and scheduling of official time." Id. at 1374-75.

The Agency urges the Authority to adopt what is essentially a restrictive interpretation of section 7131(d). Although the Agency does not dispute that section 7131(d) authorizes negotiations over the "amount" of official time, it argues that section 7131(d) limits negotiations to that matter. We reject these arguments.

Section 7131(d) states that official time "shall be granted" in the amount that the parties agree to be reasonable, necessary, and in the public interest. Thus, section 7131(d) mandates that agencies "give," "bestow," or "confer" official time to the exclusive representatives of their employees for representational matters.(14) See Webster's Third New International Dictionary (1986) (unabridged). See also Black's Law Dictionary (6th ed.) (grant is defined as "[t]o bestow; to confer . . . [t]o give or permit as a right or privilege"). By using the term "shall" and thereby making the grant of official time mandatory, it is clear to us that Congress intended for representatives of labor organizations to be able to use and schedule that time in a meaningful way. See AFGE v. FLRA, 798 F.2d at 1530-31, n.8 ("[u]nless section 7131(d) carves out an exception to section 7106(a), section 7106(a) would preclude any negotiation of official time provisions, since official time always affects an agency's ability to assign work."). The clear import of the Agency's argument is that it does not wish to bargain over the allocation or scheduling of official time by Union representatives. However, we interpret section 7131(d) to mean that management cannot unilaterally determine the allocation or scheduling of official time. Rather, it must be determined bilaterally. We believe that reading the Statute in this manner gives full effect to a provision that was of obvious significance to its drafters. Cf. id. at 1530 (the court cautioned that the Authority "cannot assume that Congress' explicit provision for official time was not meant to be a meaningful guarantee.").

As is evident from various statements by the proponents of the proposed legislation that was ultimately enacted into law, Congress was concerned with two paramount and pragmatic principles in section 7131(d): (1) ensuring that representatives of labor organizations would have sufficient opportunity to perform the representational activities that were being provided by the proposed legislation; and (2) equalizing the resources and ability of labor organization representatives to pursue these activities on official time in the same manner as management.(15) Consistent with congressional recognition that management can exercise control over the time it spends in representational activities, interpreting section 7106(a)(2) to permit management to control when union representatives can schedule or use official time would undercut the purpose of section 7131(d). Rather, we interpret section 7131(d) as requiring parties to negotiate over the scheduling of official time used by union representatives affords both sides an opportunity to determine the conditions under which employees will be able to use official time.

Congress vested labor organizations that attain exclusive recognition status with significant rights and responsibilities. In order for labor organizations to fulfill their legislative mandate, Congress sought to ensure a balance between management representatives, who have duty time available for fulfilling their responsibilities under the Statute, and union representatives. Consistent with this intent, the Authority has found that the scheduling of official time is within the duty to bargain. E.g., PTO, 49 FLRA at 203-07. Cf. U.S. Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 36 FLRA 567 (1990) (respondent violated Statute by unilaterally changing practice of scheduling representational meetings on official time).

We find that excluding the scheduling of official time from matters that may be negotiated under section 7131(d), as the Agency suggests, would have serious consequences. Significantly, it would give agency management unilateral control over the scheduling of official time. For example, if negotiations under section 7131(d) were permitted over the number of hours to be spent on official time but not over the scheduling of that time, agency management could control when that time could be used.(16) In such circumstances, if parties were to negotiate the use of 20 hours of official time per week and agency management could dictate when such time could be taken, management would in effect be able to determine who could use the time, i.e., effectively dictating the union's choice of representative. Moreover, under the Agency's construction of section 7131(d), we doubt whether a proposal for 100 percent official time for a union representative could ever be negotiated, since that amount of time assumes that the union representative could freely schedule official time and determine the uses of that time. Yet, some parties in the Federal sector labor-management relations program may find that negotiating over, and agreeing to, the use of 100 percent official time for union representatives is appropriate for their circumstances. Indeed, the negotiability of proposals for the use of 100 percent of official time have been judicially sanctioned. See AFGE v. FLRA, 798 F.2d at 1529.

We recognize that the negotiability of official time under section 7131(d) is not without some limitation. Restrictions on the negotiability of such time are, first and foremost, imposed by the parties themselves, who are authorized to negotiate only an amount of time that is "reasonable, necessary, and in the public interest." 5 U.S.C. § 7131(d). Further, official time under section 7131(d) is negotiable "absent an emergency or other special circumstances . . . ." MEPS, 25 FLRA at 689. See also 5 U.S.C. § 7106(a)(2)(D). Thus, management's interests in negotiating legitimate limits with respect to the scheduling of official time matters under section 7131(d) are protected by the language of that section as well as by section 7106(a)(2)(D). While our colleague posits an example of an official time proposal that would fall within the duty to bargain, we are not so certain that such a proposal, which ignores the nature of the disruption at the workplace, would, in fact, be negotiable consistent with the carve-out theory.(17) In any event, as we are not presented here with such a provision, we can make no definitive finding as to its negotiability one way or the other.

Based on the foregoing, we find that the Agency's interpretation of section 7131(d) would upset the balance of official time usage that Congress intended to create. We find it appropriate to apply the "carve-out" exception to find that Article 16, Section 9 does not affect management's rights to direct employees and assign work. Under these circumstances, there is no need to address the merits of the Union's contention that the provision is negotiable as an appropriate arrangement.

Finally, we address the Agency's contention that, even assuming the applicability of BATF, the provision here is distinguishable and should be found to interfere with the rights to direct employees and assign work. The provisions in that case set forth the circumstances under which employees and union representatives would be released from their duties for purposes of meeting with the union or performing representational functions. Those provisions also required that employees "request permission" from their supervisors and that union representatives "check" with their supervisors before being released from duty. 45 FLRA at 344, 345. Although such a requirement is not contained in Article 16, Section 9, its absence does not warrant the conclusion urged by the Agency. Because section 7131(d) carves out an exception to sections 7106(a)(2)(A) and (B), it permits negotiations over the scheduling of official time, including the ability to use official time without advance scheduling or permission from the supervisor, absent emergency situations or other special circumstances. We also reject the Agency's reliance on Provision 18 in POPA. That provision related to employees advising their supervisors or designee of various matters prior to the employees' departure from their work areas. The Authority found that the provision directly interfered with management's rights to direct employees and assign work. The provision here is different in that it applies to Union representatives who would be on official time. Thus, the carve-out exception applies to defeat the management rights claim.

VIII.    Article 18 (Leave), Section 6 (18)

In accordance with this Agreement and applicable regulations, and subject to workload consideration and staffing needs, an employee will be granted any combination of annual, sick, LWOP [leave without pay], or religious compensatory leave for up to five workdays where there has been a death in the employee's immediate family. The definition of the immediate family shall include the following: Mother, Father, Stepmother, Stepfather, Mother-in-Law, Father-in-Law, Spouse, Brother, Sister, Brother-in-Law, Sister-in-Law, Child, Grandparents, and Grandparents-in-Law.

A. Positions of the Parties

1. Agency

The Agency contends that the disputed portion of the provision is contrary to 5 C.F.R. § 550.1002(b), a Government-wide regulation, which sets forth the criteria for granting religious compensatory time. The Agency states, without further explanation, that the regulation "include[s] the requirements that modification of work schedules do not interfere with the efficient accomplishment of the agency's mission, and that the employee's personal religious beliefs require that the employee abstain from work during certain periods of the work day or work week." Statement of Position at 18. According to the Agency, the provision "sets forth separate and conflicting criteria for granting religious compensatory time." Id.

2. Union

The Union states that the provision will apply in accordance with applicable regulations, including 5 C.F.R. § 550.1002(b). Therefore, the Union maintains that the accumulation of religious compensatory time and the modification of work schedules would be conducted in a manner that would not interfere with the efficient accomplishment of the Agency's mission.

B. Analysis and Conclusions

1. Meaning of the Provision

Based on its plain wording, the portion of the provision to which the Agency objects would require the Agency to grant religious compensatory leave for a death in an employee's immediate family. The provision expressly states that such leave is to be granted in accordance with applicable regulations. The Union explains that this includes modifying work schedules so as not to interfere with the efficient accomplishment of the Agency's mission. As this explanation is consistent with the plain wording of the provision, we adopt it. Fort McPherson, 51 FLRA at 138-39.

2. The Provision Is Not Contrary to Law

The sole basis advanced by the Agency for finding the provision nonnegotiable is its asserted inconsistency with 5 C.F.R. § 550.1002(b), governing the use of compensatory time for religious observances.(19) The Agency does not dispute the fact that the use of compensatory time for religious purposes can encompass a death in an employee's immediate family.

Under 5 C.F.R. § 550.1002(b), an employee must be given the opportunity to earn compensatory time in order to be granted time off for religious observances when two criteria are satisfied: (1) the employee's religious beliefs require abstention from work at certain times; and (2) modifications in work schedules do not interfere with the efficient accomplishment of the agency's mission. The Agency has not explained how the provision would create conflicting requirements for granting religious compensatory time. As to the first criterion, the Agency makes no argument that an employee would be given time off without regard to whether the employee's religious beliefs require abstention from work. As to the second criterion, the provision expressly states that such leave shall be granted in accordance with applicable regulations; given the Union's explanation, which we have adopted, that the modification of work schedules will not interfere with the efficient accomplishment of the Agency's mission, it is clear that the provision is consistent with 5 C.F.R. § 550.1002(b). Accordingly, it is not contrary to that regulation. See American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Immigration and Naturalization Service, 27 FLRA 467, 476-77 (1987).

IX. Article 26 (Work Schedules), Section 2(B) and (C) and 6(A) and (B)

2B. Restrictions or denials on the use of flexitime by employees shall be based on one of the following:

1. operational considerations, related to the work situation only (not related to job performance);

2. abuse of flexitime, meaning misconduct of a serious nature during the flexible bands that would be alleviated by the presence of a supervisor;

3. participation during the hours required in formal training program;

4. requirement for close supervision for the initial training required to understand and perform the duties of the position; or

5. the requirement for close supervision for employees with serious deficiencies in the performance of their primary tasks over a period of at least one quarter to the extent that the level of their performance would constitute grounds for an unsatisfactory performance rating. The intent here is that employees operating at this level would have the attention, to the extent practical, of their regular or acting supervisors during times that would not be available if the employee were participating in the flexitime program.

2C. Justification for restricting or denying flexitime must be neither punitive in nature nor otherwise related to conduct or job performance except as discussed in Section 2B of this article.

6A. Restrictions or denials on the use of Compressed Work Schedules by employees shall be based on one of the following:

1. operational considerations, related to the work situation only (non-related to job performance);

2. abuse of a compressed work schedule, meaning misconduct of a serious nature during the scheduled work days that would be alleviated by the presence of a supervisor;

3. supervisors may temporarily suspend employee participation in the Compressed Work Schedule Program for formal training;

4. requirement for close supervision for the initial training required to understand and perform the duties of the position;

5. the requirement for close supervision for employees with serious deficiencies in the performance of their primary tasks over a period of at least one quarter to the extent that the level of their performance would constitute grounds for an unsatisfactory performance rating. The intent here is that employees operating at this level would have the attention, to the extent practical, of their regular or acting supervisors during times that would not be available if the employee were participating in the Compressed Work Schedule program.

6B. Justification for restricting or denying a compressed work schedule must be neither punitive in nature nor otherwise related to conduct or job performance except as discussed in Section 6A, of this article.

A. Positions of the Parties

1. Agency

The Agency contends that this provision would require the Agency to allow employees to use a flexitime schedule without regard to its operational needs and would prohibit the Agency from suspending an employee's use of flexitime in certain circumstances. The Agency claims that such restrictions interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

2. Union

The Union contends that the provision is not intended to interfere with that management right. The Union explains that the provision specifically states that restrictions or denials on the use of flexitime shall be based on operational considerations. Additionally, the Union argues that the Authority has found that issues regarding flexitime are negotiable.

B. Analysis and Conclusions

1. Meaning of the Provision

Article 26 of the parties' collective bargaining agreement, of which Sections 2(B), 2(C), 6(A), and 6(B) are in dispute, governs "Flexitime Work Schedules" and "Compressed Work Schedules." These sections, by their plain wording, prescribe the bases on which the Agency can restrict and/or deny the use of both flexitime and compressed work schedules.

2. The Provision Is Not Contrary to Law

The Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Work Schedules Act) provides that an exclusive representative may negotiate with an agency for the establishment of flexible and compressed work schedules for bargaining unit employees. 5 U.S.C. § 6130(a)(1). We note two principles from the legislative history of the Work Schedules Act. First, the Work Schedules Act is intended to include within the collective bargaining process "the institution, implementation, administration and termination of alternative work schedules[.]" S. Rep. No. 365, 97th Cong., 2d Sess. 14-15 (1982), reprinted in 1982 U.S. Code Cong. & Admin. News at 565, 576-77. Second, Congress intended alternative work schedules to be fully negotiable, subject only to the provisions of the Work Schedules Act itself. Consistent with the legislative history, the Authority has held that alternative work schedules for bargaining unit employees are "fully negotiable" subject only to the Work Schedules Act or other laws superseding it. IRS, 39 FLRA at 34. See also American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA 872, 873-74 (1986) (Lowry), modified as to other matters, National Treasury Employees Union Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 333 n.2 (1995). The Authority has consistently held since Lowry that proposals seeking to negotiate alternative work schedules are within the duty to bargain and enforceable under the Statute. E.g., IRS, 39 FLRA at 34; U.S. Environmental Protection Agency, Research Triangle Park, North Carolina and American Federation of Government Employees, Local 3347, 43 FLRA 87, 92-93 (1991).

As the provision establishes limitations on the use of flexitime and compressed work schedules, it concerns the implementation and administration of alternative work schedules. Consequently, the provision is "fully negotiable" under the Work Schedules Act. The Agency's argument, which is limited to a claimed violation of the management rights provision of the Statute, provides no basis for finding that the provision is contrary to law. See, e.g., IRS, 39 FLRA at 34; National Federation of Federal Employees, Local 642 and Bureau of Land Management, Lakeview District Office, Lakeview, Oregon, 27 FLRA 862, 867 (1987), enforced sub nom. Bureau of Land Management v. FLRA, 864 F.2d 89, 91-92 (9th Cir. 1988) (rejecting agency's arguments that the establishment of alternative work schedules conflicts with management rights under the Statute).

X.    Article 31 (Performance Awards), Section 5(B)

If the employee satisfies the criteria outlined in A, the employee may receive the [Quality Step Increase]; however, if the Office decides to grant the employee the QSI, the employee will have the option of electing between the QSI and the applicable cash award (SSP). The election need not be made until the amount of the cash award has been determined.

A. Positions of the Parties

1. Agency

The Agency contends that the provision is inconsistent with 5 C.F.R. § 430.504(d), which requires an agency official to approve each award individually. The Agency further argues that, by mandating an award or quality step increase (QSI) under the conditions set forth in Article 31, Section 5(A),(20) the provision is inconsistent with 5 C.F.R. §§ 430.203, 430.204, and 430.206(b) because the provision would require the Agency "to consider non-merit factors in assigning the ratings mandating the awards." Statement of Position at 24. Finally, the Agency claims that the provision is contrary to 5 C.F.R. § 531.504 because the provision mandates the granting of an award or a QSI.(21)

2. Union

The Union contends that the provision does not conflict with 5 C.F.R. § 430.504(d) because nothing in the provision requires the Agency to grant a QSI or precludes the Agency from approving each award individually. Quoting Article 31, Section 1 of the parties' agreement, which was not disapproved, the Union states that "there is no entitlement to a performance award or other type of incentive award . . . [and that awards] are paid at the discretion of the Office." Response, Attachment 3 at 71. The Union also asserts that the provision is not contrary to 5 C.F.R. § 531.504 because the provision does not require the Agency to grant a QSI. The Union claims that the Authority has found negotiable provisions that do not mandate the granting of QSIs but, rather, concern only the pool of employees who may be considered for QSIs. Finally, the Union states that amendments to 5 C.F.R. § 531.504, set forth at 60 Fed. Reg. 43948, have no impact on the negotiability of this provision.

B. Analysis and Conclusions

1. Meaning of the Provision

By its plain wording, the provision gives employees the option of electing a QSI or a cash award, after management's decision to grant a QSI. The Union explains that the provision does not require the Agency to grant a QSI. This explanation is consistent with the plain wording of the provision, which states that an employee "may" receive a QSI. The Union further explains that the provision would not prevent the Agency from approving each award individually. This explanation is not contradicted by the express terms of the provision. We adopt both explanations. Fort McPherson, 51 FLRA at 138-39.

2. The Provision Is Not Contrary to Law

Based on the plain wording of the provision and the Union's explanations that we have adopted above, we find that nothing in the provision requires the Agency to grant a QSI. Rather, the provision provides that employees who satisfy the criteria set forth in Article 31, Section 5(A) of the parties' agreement, which is not in dispute, may receive a QSI. To the extent the Agency's arguments are predicated on its view that the provision mandates the granting of QSIs and deprives the Agency of the ability to approve individual awards, those arguments are rejected. Moreover, we note that 5 C.F.R. § 430.504(d), relied on by the Agency, has been eliminated. See our analysis of Proposal 4 at Part IV.B., supra. Nothing in the revised regulations would prevent the Agency from giving an employee the option of choosing between a QSI and a cash award where, as here, management has made the decision to grant an employee a QSI. See 60 Fed. Reg. 43936-43948.

We also reject the Agency's reliance on 5 C.F.R. §§ 430.203, 430.204, and 430.206(b). Those regulations relate to performance appraisals. Section 430.203 contains definitions; section 430.204 prescribes the elements of agency performance appraisal systems; and section 430.206(b) relates to performance plans. Nothing in the provision would require the Agency to disregard these regulations. The fact that the Agency could grant a QSI, if an employee's performance warrants such recognition, would not require the Agency to consider non-merit factors in assigning the ratings.

XI. Article 32 (Dues Withholding), Sections 5(B), 6, and 7

5B. When the Union receives a remittance check which is less than that due to the Union, the Union will notify the Office of Personnel, Labor Relations Branch. After such notice, the appropriate adjustment shall be processed within two (2) pay periods.

6. The Union and the Office agree to the following procedures concerning overpayments:

When the Union has notice of receipt of an overpayment, such notice gives rise to an affirmative duty on the part of the Union to remit that amount by check to the Office. Such repayment shall occur within two (2) pay periods of notice of overpayment.

7. When an adjustment is made to an employee's salary to recoup dues withholding, the employee will be given a written explanation of the adjustment. This explanation shall notify the employee that he/she has a right to request a waiver of overpayment of $500 or less in accordance with applicable laws, rules and regulations. Denials of such waiver requests shall not be subject to arbitration.

A. Positions of the Parties

1. Agency

The Agency makes the following argument as to the negotiability of this provision:

This provision establishes procedures for the recoupment of money from the employee or the Union in the event of an error in the payment of dues withholding. This provision is non-negotiable, however, because it is contrary to government-wide regulations. See American Federation of Government Employees and Department of Agriculture, [Local 1980, AFL-CIO and U.S. Department of Agriculture, Farmers Home Administration, 17 FLRA 832 (1985)]. Under 5 C.F.R. § 550.312, disputes regarding the over or underpayment of dues are a matter between the allotter (employee) and the allottee (Union). Thus, this proposal, by establishing an alternative procedure, is non-negotiable.

Agency's Statement of Position at 25.

2. Union

The Union contends that, under section 7115(a) of the Statute, the Agency is obligated to honor employee authorizations for dues deductions. The Union asserts that the procedures that the Agency will use to deduct and remit those dues are within the duty to bargain.

B. Analysis and Conclusions

1. Meaning of the Provision

By its plain wording, this provision prescribes the process that the Agency and the Union will each follow in dealing with the overpayment and underpayment of dues remittances to the Union. The provision also addresses the actions that the Agency will take when an erroneous dues remittance necessitates an adjustment to an employee's salary.

2. The Provision Is Not Contrary to Law

5 C.F.R. § 550.312 sets forth general limitations on dues allotments, which include, but are not limited to, allotments of dues to labor organizations. That regulation provides, in relevant part, that "[a]lloters shall agree that disputes regarding any authorized allotment shall be a matter between the allotter and the allottee."(22) 5 C.F.R. § 550.312(e). 5 C.F.R. § 550.321 further provides, with respect to dues allotments to labor organizations, that section 7115 of the Statute requires that such allotments "be effected in accordance with such rules and regulations as may be prescribed by the Federal Labor Relations Authority." As explained below, the Agency's view that disputes regarding the misallocation of dues are matters between the Union and the affected employees is simply wrong.

Section 7115 requires agencies to remit to unions dues deducted from unit employees pursuant to valid dues assignments. Lowry Air Force Base, Denver, Colorado and American Federation of Government Employees, AFL-CIO, Local 1974, 31 FLRA 793, 797 (1988). In fulfilling this obligation, agencies are, as the remitter of dues, necessarily involved in cases where amounts remitted to unions under authorized dues assignments are greater or less than the amounts to which the unions are entitled. For example, where a union receives a remittance check from an agency that is in excess of the amount to which the union is entitled under a valid dues assignment, an agency has a claim against the union for the excess amount. National Federation of Federal Employees, Local 1380 and U.S. Department of the Navy, Naval Coastal Systems Center, Panama City, Florida, 36 FLRA 725, 729 (1990). Additionally, under 5 U.S.C. § 5584 and 4 C.F.R. Part 91, an agency must seek to recover the amount of the overpayment or waive collection of the claim. Id. Thus, it is clear that "disputes" regarding authorized allotments are not matters that are dealt with by the Union and affected employees only.

The Agency contends that the provision is contrary to a Government-wide regulation because it establishes an alternative procedure for resolving claims involving dues allotments. However, nothing in the applicable regulation prescribes a procedure with which the provision is inconsistent. Accordingly, we find that the provision is not contrary to Government-wide regulations concerning dues allotments. We also find that the Agency's reliance on Department of Agriculture is misplaced. That case concerned the performance appraisals of employees subject to a reduction-in-force and did not address dues allotments.

XII. Order

The petition for review is dismissed as to Proposals 2 and 7 and Article 16, Section 1(F). The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate over Proposal 4. Further, the Agency shall rescind its disapproval as to Article 13, Section 3(N); Article 16, Section 9; Article 18, Section 6; Article 26, Sections 2(B), 2(C), 6(A) and 6(B); Article 31, Section 5(B); and Article 32, Sections 5(B), 6 and 7.(23)

APPENDIX

Article 31- Performance Awards

Section 5: Quality Step Increases

A. Criteria:

To qualify an employee must:

1. have a current summary rating of outstanding for the current appraisal cycle;

2. have occupied the same grade and type of position for at least six consecutive months before the end of the appraisal cycle and be expected to continue at this high level of performance in the same grade and type of position for at least 60 days after the effective date of the increase;

3. not be in the top step of his or her pay range;

4. not have a promotion in progress or anticipated within 60 days after the effective date of the increase; and

5. not have received a QSI within 52 consecutive calendar weeks preceding the effective date of the increase.

§ 7131. Official time

(a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes.

(b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a nonduty status.

(c) Except as provided in subsection (a) of this section, the Authority shall determine whether any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose during the time the employee otherwise would be in a duty status.

(d) Except as provided in the preceding subsections of this section--

(1) any employee representing an exclusive representative, or

(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative,

shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.

Concurring Opinion of Chair Segal
As to Article 16, Section 9

I agree with the Authority's conclusions regarding all proposals and provisions except that I write separately as to Article 16, Section 9. As to that provision, I concur in the majority's conclusion that it accords with the Statute as well as other laws, rules, and regulations and, as such, was not properly disapproved by the Agency head under section 7114(c)(2) of the Statute. However, for the following reasons, I am unable to join in my colleagues' reasoning. In my view, Article 16, Section 9 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

At the outset, I note three important points of general agreement with the majority. First, any inquiry regarding the provision at issue here must begin with the plain wording of, and interrelationship between, sections 7106 and 7131 of the Statute. Second, notwithstanding the fact that section 7106(a) contains broad introductory wording that ostensibly could trump every other section in the Statute that affects management rights, not all official time provisions affecting management's rights under section 7106(a) are impermissible. Third, section 7131(d) is not necessarily limited to negotiations over the number of hours available for official time.

Turning first to the wording of the Statute, section 7106(a) plainly states that "nothing" in the Statute shall affect the exercise of management's rights to make decisions under section 7106(a). The U.S. Supreme Court has held in unambiguous terms that section 7106(a) means what it says: "§ 7106(a) removes . . . decisions from the coverage of the entire [Statute] . . . ." Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922, 929 (1990) (emphasis in original) (IRS v. FLRA). Section 7131(d), the statutory provision that holds the key to the propriety of Article 16, Section 9, clearly is in the Statute. As such, both the meaning and breadth of section 7131(d) must be interpreted through the lens of section 7106(a).

Despite the fact that section 7131(d) is in the Statute and, thus, falls within the ambit of the "nothing in this chapter" wording of section 7106(a), it would run afoul of basic principles of statutory construction to conclude that all provisions concerning official time that affect management's rights under section 7106(a) are, therefore, not in accordance with the Statute. This conclusion would render section 7131(d) a nullity because any official time amount agreed to inevitably affects management's rights under section 7106(a). Official time, by definition, is the use of duty or work time for accomplishing various union functions and, thus, affects management's right to assign work because the agency's work may not be assigned to a union representative during official time. "In specifically providing for official time, Congress must have envisioned either some reallocation of positions or some additional hiring and hence some limitation in management's right[s] . . . ." American Federation of Government Employees, AFL-CIO, Council of Locals No. 214 v. FLRA, 798 F.2d 1525, 1529 (D.C. Cir. 1986). Basic principles of statutory construction militate against interpreting provisions of a statute such that some are rendered meaningless. See e.g., United States v. Menasche, 348 U.S. 528, 538-39 (1955) ("[i]t is our duty to 'give effect, if possible, to every clause and word of a statute' [citation omitted] rather than to emasculate an entire section").

Having concluded that section 7131(d) has viability notwithstanding the broad introductory wording of section 7106(a) and the inevitable impact that official time will have on section 7106(a) rights, I also agree with my colleagues that section 7131(d) is not limited to negotiations over the number of hours available for official time. As the majority opinion points out, section 7131(d) specifically provides that official time, in whatever amounts are agreed on by the parties, "shall be granted . . . ." Common sense dictates that a requirement that official time "be granted" in amounts that are agreed on necessarily envisions not only the amount, but also the use, of official time.

However, at this point, my colleagues and I part company. Specifically, in my view, the majority reads too much into section 7131(d) and, in so doing, potentially invalidates legitimate agency management rights set out in section 7106(a). As noted above, I do not believe that the broad introductory language of section 7106(a) trumps the right to negotiate for, and use, official time under section 7131(d). Concomitantly, in my view, section 7131(d)'s vitality does not depend on the nullification of section 7106(a).

1. The Provision Affects the Agency's Rights Under Section 7106(a)(2)

The provision we review in this case requires Union representatives to notify their supervisor of their whereabouts and the expected duration of their absence, and to postpone their Union business if notified by their supervisor that their departure would cause substantial disruption. These requirements recognize some legitimate agency management concerns and lead me to conclude, infra, that this provision does not excessively interfere with management's rights. However, as I understand the majority's theory, the Union is under no obligation to propose or agree to any such constraints on the scheduling and allocation of official time, unless (as addressed below) it would intrude upon agency actions during an emergency.(1) Specifically, under the majority view, a proposal that "Union officials will be entitled to use the official time agreed upon to engage in representational functions whenever such officials decide to do so regardless of the disruption their representational activity causes in the work place, so long as that disruption does not interfere with agency action during an emergency" would fall within the duty to bargain. Faced with such a provision, agency head disapproval premised upon section 7106(a)(2)(A) and (B) would be improper. In my opinion, this interpretation of the interrelation between these two sections of the Statute extends the carve-out doctrine too broadly to withstand scrutiny, given its effect on management's rights.

In reaching their conclusion, my colleagues rely on the legislative history of the Statute, the undesirable consequences that in their view would result if agencies exercised any unilateral control over the scheduling of official time, and the fact that agencies would nevertheless be entitled to act pursuant to section 7106(a)(2)(D). None of these bases persuades me that the majority's position is correct.

The legislative history relied upon by the majority extols the importance of official time and, in this regard, reinforces our consensus that section 7131(d) must be construed as, in some respects, an exemption from the broad introductory language of section 7106(a). However, I am unable to find within this legislative history support for the view that Congress intended that union representatives, in using official time to carry out representational activities, may not be constrained (other than in emergency situations) in the scheduling of such time by management's rights.

I am likewise not convinced that the interpretation of sections 7106(a) and 7131(d) applied by the majority is necessary to forestall the undesirable consequences that would flow from an interpretation that recognizes management prerogatives in connection with the scheduling of official time.(2) (Indeed, the provision in this case provides management with the ability to require rescheduling of official time in certain situations.) To be sure, there are circumstances where the exercise of management's right to assign work would require a union representative to conduct a representational function at a different time than the representative otherwise would have done so. However, that prospect does not necessarily vitiate the right to use official time in the amounts agreed upon.(3) Where the parties have agreed upon the amount of official time that must be granted, it is evident that a representative's schedule must be accommodated to permit all time agreed upon to be taken. An agency's actions that deny the Union's rights to use the official time agreed upon can be remedied through negotiated grievance and arbitration procedures or, in some circumstances, through unfair labor practice procedures.

The majority, apparently recognizing the potential consequences of providing an agency no section 7106(a)-based control whatsoever over when official time may be taken, recognizes management's right "to take whatever action may be necessary during emergencies" pursuant to section 7106(a)(2)(D). To the extent that the majority seeks by this limitation to use a "scalpel" in carving out official time from section 7106(a), this is consistent with my view that such a careful approach is required by basic rules of statutory construction. However, the majority applies its scalpel only to section 7106(a), and not to section 7131(d). The problem with this construction is that it does not acknowledge that the only actions appropriately excepted from section 7106(a)'s clear language, in order to give vitality to section 7131(d), are those actions that are directly found in the language of section 7131(d). It also fails to account for the plain wording of section 7106(a), which, by its structure, incorporates the phrase "nothing in this chapter" as part of the introduction to the entire subsection, not just section 7106(a)(2)(D). Contrary to my colleagues, I believe that section 7131(d) must be viewed in light of, and balanced against, all pertinent agency rights set out in section 7106(a), including management's rights to direct employees, assign work, and take whatever actions may be necessary in an emergency.

In sum, I recognize that there is a tension between the amount of official time that the parties agree may be used for representational purposes and control over the scheduling and use of that time. However, unlike my colleagues, I believe these two interests can coexist without either eviscerating section 7131(d) or ignoring management's rights under section 7106(a). Accordingly, I conclude that the provision at issue here affects the Agency's rights to direct employees and assign work.

2. The Provision Constitutes an Appropriate Arrangement Under Section 7106(b)(3)

Finding that the provision affects management's rights, however, does not complete the inquiry necessary to resolve the petition for review as to Article 16, Section 9, because the Union asserts that it is an appropriate arrangement under section 7106(b)(3) of the Statute. A provision that constitutes an appropriate arrangement under section 7106(b)(3) may not be disapproved by an agency head. E.g., National Federation of Federal Employees, Local 1214 and U.S. Department of the Army, Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, 51 FLRA 1362, 1368 (1996) (Fort Jackson). In determining whether a provision that has been disapproved under section 7114(c)(2) constitutes an appropriate arrangement, the Authority applies the same three-prong analysis it follows in reviewing collective bargaining proposals alleged to be outside the duty to bargain under section 7117. Compare id. (excessive interference test applied to negotiated provision) with American Federation of Government Employees, Local 1138, Council 214 and U.S. Department of the Air Force, Air Force Materiel Command, 645 Air Base Wing/CE, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1725, 1734-35 (1996) (excessive interference test applied to bargaining proposal) (Wright-Patterson AFB). The first two prongs of this analysis are directed at examining whether the provision constitutes an arrangement because it: (1) ameliorates adverse effects flowing from the exercise of a management right; and (2) is "tailored" to apply to those employees who are adversely affected. E.g., American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1317 (1996). Under the third prong, the Authority applies a balancing test to determine whether a provision found to be an arrangement "excessively interferes" with the exercise of management's rights. See KANG, 21 FLRA at 31.

A. The Provision Constitutes an Arrangement

The first prong of the arrangement portion of the analysis is derived directly from the wording in section 7106(b)(3) defining an appropriate arrangement as one "for employees adversely affected by the exercise of any [management right]." Thus, there must be a connection between the adverse effect and the exercise of a management right. This was recognized in KANG, where the Authority stated that in determining whether a proposal is within the duty to bargain under section 7106(b)(3):

[T]he Authority will first . . . ascertain as a threshold question whether a proposal is in fact intended to be an arrangement for employees adversely affected by management's exercise of its rights. In order to address this threshold question, the union should identify the management right or rights claimed to produce the alleged adverse effects, the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse.

21 FLRA at 31.

In this case, the Union asserts that the provision is necessary to address the effects that otherwise would flow from management's exercise of its rights to assign work and direct employees by unilaterally controlling when Union representatives can conduct official business on official time. According to the Union, this control would adversely affect the conduct of representational activity and deny employees' rights "to full and adequate representation by the Union." Response. In examining other provisions involving official time where similar assertions were made, the Authority has focussed its analysis on a different management's right nexus: whether the specific reason for which official time was requested was sufficiently related to the exercise of a management right under section 7106. E.g., National Treasury Employees Union, Chapter 243 and Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 206-07 (1994) (PTO); BATF, 45 FLRA at 351-52. For example, in PTO, the Authority concluded that two provisions concerning the scheduling of official time did not constitute arrangements because they were 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 . . . ." 49 FLRA at 207.

I am not persuaded that it is necessary to establish a connection between the genesis of the representational activity and a management right in order for a provision concerning official time to constitute an arrangement within the meaning of section 7106(b)(3). As identified by the Union here, the exercise of management's rights to assign work and direct employees adversely affects a Union representative's ability to carry out his or her representational responsibilities, either requiring that these official activities be postponed, or in some circumstances effectively preventing them from being carried out. This adversity is likely to fall on both the representative and any bargaining unit member who requires the representative's assistance; the former because it hinders and may disable the representative from carrying out official responsibilities, the latter because it may effectively deprive the employee of his or her right to representation.

The activities for which a union representative may seek to utilize official time under the Statute include preparing and processing grievances, representing employees at investigatory examinations and arbitration hearings, attending formal discussions, and engaging in collective bargaining. If, for example, a union representative is unable to participate in a scheduled meeting with an employee to prepare for an upcoming arbitration hearing, then the representative may be unable to adequately represent the employee in that hearing. The connection between such adverse effect and the exercise of the rights to assign work and direct employees is foreseeable, clear and direct.(4) The provision at issue here is aimed at ameliorating such foreseeable adverse effects by allowing a Union representative to schedule, without seeking prior approval, representational activities at times and for durations that the representative deems appropriate. As such, I would find that the provision passes muster under the first prong of the arrangements analysis.

For the following reasons, I would also find that the provision also satisfies the second prong of the arrangements analysis -- requiring it to be "tailored" to apply to those employees who are, or it is foreseeable would be, adversely affected by the exercise of management's rights.

The provision expressly applies only to Union representatives who intend to conduct official Union business for which they need official time. No other employee is authorized by the provision to operate under the procedures it establishes. Viewed in this manner, the provision is, on its face, sufficiently tailored. See International Federation of Professional and Technical Engineers, Local 3 and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 51 FLRA 451, 454-55 (1995). I recognize, however, that it is not difficult to envision situations where the postponement of a meeting or other representational activity would have few, if any, consequences. Some activities within the wide range of functions performed by union representatives on official time are time sensitive; others are not. Examples of time-sensitive activities include participating as a unit member's representative during investigatory examinations and at hearings scheduled by arbitrators. In such circumstances, it is foreseeable that the consequences of being unable to participate at a specific time could be significant.

The provision plainly does not limit its reach to the scheduling of particular representational activities that are time sensitive. However, it is not asserted that the Union could have identified those Union representatives who would be adversely affected with sufficient specificity so as to better tailor the provision to apply only to them. Consistent with Authority precedent, in such circumstances, a provision that targets employees who are likely to be harmed by the exercise of management's rights is considered to be sufficiently tailored. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 194-95 (1994) (Member Armendariz dissenting in relevant part) (provision prohibiting immediate supervisors from soliciting or collecting charitable pledges held sufficient tailored because, even though it would encompass some employees in addition to those who would be coerced, it targeted a group of employees that was likely to be harmed). Applying this precedent here, I would find that the provision is sufficiently tailored.

B. The Provision Does Not Excessively Interfere with Management's Rights to Assign Work and Direct Employees

Finally, with respect to the third prong of the appropriate arrangements analysis, Authority precedent requires determining whether the benefits to employees under the provision outweigh the burdens it places on management. See Fort Jackson, 51 FLRA at 1367. The premise of this balancing test is that an arrangement that results in burdens greater than the benefits "excessively" interferes with management's rights, and therefore is not appropriate. See Wright-Patterson AFB, 51 FLRA at 1735. In this case, the benefits are relatively clear: Union representatives intending to use official time for representational functions could do so at times chosen by the representatives, absent substantial disruption, without prior supervisory approval. The burdens are more difficult to ascertain. The operational consequences of the scheduling procedures established in the provision would depend, for example, on such variables as the layout of the worksite, the number, levels and employee ratio of supervisors, and the work that is involved. The record does not clarify this matter because the Agency did not address the Union's assertion that the provision constitutes an appropriate arrangement.

In view of the fact that the Agency, in the course of collective bargaining, reached agreement on this provision, I am reluctant to read into this record burdens that may not be real and, in any event, were not of sufficient concern for the Agency to raise them before the Authority. While deference to the parties' understanding of their workplace may not be warranted when the Authority reviews a bargaining proposal, the context here, where we are reviewing a provision, is significantly different. Indeed, the approaches followed by the Authority in reviewing a bargaining proposal, on the one hand, and a collective bargaining provision, on the other, are typically different; in my view, for good reason.

The Statute itself makes a distinction between proposals that an agency determines not to bargain over and provisions that have been agreed upon in negotiations and subsequently disapproved by the agency head during the 30-day period available for such action. Compare 5 U.S.C. § 7117(c)(1) with 5 U.S.C. § 7114(c)(2). As to the former, the Statute provides that a union may appeal to the Authority an agency allegation that "the duty to bargain in good faith does not extend to any matter . . . ." As to the latter, an agency head is required to approve a collective bargaining agreement "if the agreement is in accordance with" the Statute and other applicable laws, rules, and regulations. This distinction recognizes, as it should, that employers and unions should be allowed to determine, through the collective bargaining process, what provisions best "fit" their situations.

This distinction is reflected in the different approaches followed by the Authority in reviewing proposals and provisions. For example, the Authority has long held that a proposal concerning a matter within the scope of section 7106(b)(1) of the Statute is not within the duty to bargain. See National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995); American Federation of Government Employees, AFL-CIO, Council 236 and General Services Administration, 9 FLRA 825, 826 (1982). However, the Authority also has long held that, if such a provision is agreed upon, then it may not later be disapproved by the agency head under section 7114(c)(2). See National Association of Government Employees, Local R4-75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA 56, 61-62 (1986).

Similarly, when reviewing bargaining proposals that an agency asserts do not concern a condition of employment of unit employees, the Authority has found that matters directly implicating conditions of employment of supervisors are outside the duty to bargain. See American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491 (1995). However, once such matters are included in a collective bargaining agreement, the provisions are enforceable in arbitration. See American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, 52 FLRA 677 (1996).

Consistent with this precedent, the Authority has found that provisions that constitute arrangements are enforceable in arbitration, except where the provision "abrogates a management right." E.g., Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 315 (1990) (Customs Service). If a provision, as interpreted by the arbitrator, is found to abrogate a management right, its enforcement would be contrary to law under section 7122(a)(1) of the Statute, and the award set aside by the Authority as deficient.

The Authority's approach in these cases reflects an appropriate reluctance to substitute its judgement on the wisdom of bargaining, or the merits of particular terms, for that of the parties who have reached agreement on a contract provision. When provisions that have been disapproved under section 7114(c)(2) are reviewed, the dispositive question is not whether the provision is within the duty to bargain under the Statute (or was within that duty at the time agreement was reached). Rather, the question is whether the provision is "in accordance with" law, rule, or regulation. In my view, this distinction applies with equal force when it comes to assessing the "appropriateness" of an arrangement incorporated in a provision. To the extent that the Authority's "excessive interference" test substitutes its judgment for that of an agency and union, as to whether the burdens imposed on the exercise of management's rights by a provision are outweighed by the benefits it provides adversely affected employees, it is difficult to reconcile this test with other Authority precedent concerning provisions that have been disapproved by an agency head under section 7114(c)(2).(5)

It is not necessary, however, to reconcile this precedent here because even under the excessive interference test, I would find, presumably in accord with the parties who reached agreement on this provision, that the burdens it places on management do not outweigh the benefits it affords employee Union representatives. As such, I would find that the arrangement is appropriate.

Having concluded that the provision satisfies all three prongs of the appropriate arrangement analysis, I would direct the Agency to rescind its disapproval of Article 16, Section 9 because it constitutes an appropriate arrangement under section 7106(b)(3), and therefore is in accordance with the Statute.




FOOTNOTES:


Authority's Footnotes Follow:

1. Chair Segal's concurring opinion as to Article 16, Section 9 is set forth at the end of this decision.

2. The parties also filed supplemental submissions in response to Authority requests for additional information.

3. During the pendency of this case, the Agency withdrew its disapproval of other provisions. In addition, the parties negotiated a memorandum of understanding with respect to several other provisions that, in effect, constitutes a withdrawal of those provisions. The provisions that are no longer in dispute will not be addressed here.

4. The proposals are numbered according to the Union's numbering scheme. The provisions are referred to by their article and section numbers.

5. 5 U.S.C. § 4303(e) provides:

(e) Any employee who is --

(1) a preference eligible;

(2) in the competitive service; or

(3) in the excepted service and covered by subchapter II of chapter 75,

and who has been reduced in grade or removed under this section is entitled to appeal the action to the Merit Systems Protection Board under section 7701.

5 U.S.C. § 7511(a)(1)(C) provides:

(a) For the purposes of this subchapter --

(1) "employee" means --

. . . .

(c) an individual in the excepted service (other than a preference eligible) --

(i) who is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service; or

(ii) who has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less[.]

6. 5 U.S.C. § 4303(e) does not expressly set forth a 2-year requirement in order for NEES employees to appeal performance-based actions. However, as the coverage of NEES employees under that section is governed by subchapter II of chapter 75, which includes the 2-year requirement set forth in 5 U.S.C. § 7511(a)(1)(C)(ii), see note 5 supra, NEES employees must also satisfy the 2-year requirement for purposes of appeals under 5 U.S.C. § 4303.

7. Prior to its elimination in 1995, discussed below, 5 C.F.R. § 430.504(d) provided:

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

8. The Agency did not discuss the effect of the changed regulations on the negotiability of this proposal, despite the Authority's request for a supplemental statement on this point.

9. The elimination of 5 C.F.R. § 430.504(d) has effectively rendered null and void the reference to that provision in the text of the proposal.

10. This provision references Article 13, Section 3H, which is not in dispute. That section provides employees who are subject to reduction in grade or removal with at least 30 days' advanced written notice of such action containing certain information related to the basis for the action and the employee's right to respond.

11. The Union argues the applicability of 5 C.F.R. § 432.109(b), 1which was in effect at the time of the Union's submissions to the Authority. Subsequently, that regulatory provision, with certain modifications not relevant here, was renumbered. The regulation is currently numbered § 432.107(b) and it provides as follows:

As provided at 5 U.S.C. 4303(d), if, because of performance improvement by the employee during the notice period, the employee is not reduced in grade or removed, and the employee's performance continues to be acceptable for 1 year from the date of the advanced written notice provided in accordance with § 432.105(a)(4)(i), any entry or other notation of the unacceptable performance for which the action was proposed shall be removed from any agency record relating to the employee.

12. Section 7131(d) of the Statute states, in relevant part, that, except as provided in the preceding subsections of section 7131, employees representing an exclusive representative "shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest." The text of section 7131 is reprinted in its entirety in the Appendix.

13. In BATF, the Authority reconsidered the carve-out exception, first enunciated in MEPS, in view of the Supreme Court's decision in IRS v. FLRA. In that decision, the Court rejected an Authority interpretation of the Statute that did not give predominance to the management's rights provision of the Statute, section 7106(a), over another provision of the Statute, section 7121. The Court pointed to "the language of § 7106(a)'s command that "nothing in this chapter"--i.e., nothing in the entire Act--shall affect the authority of agency officials to make . . . determinations in accordance with applicable laws. Section 7121 is among the provisions covered by that italicized language." 494 U.S. at 928 (emphasis in original). In BATF, the Authority determined that a strict reading of the Court's decision would lead to the conclusion that "section 7131(d) does not override section 7106(a) of the Statute and, thus, that any proposals concerning official time that are negotiated under section 7131(d) are subject to section 7106(a)." BATF, 45 FLRA at 348. Relying on principles of statutory construction and the D.C. Circuit's decision in American Federation of Government Employees, AFL-CIO, Council of Locals No. 214 v. FLRA, 798 F.2d 1525 (D.C. Cir. 1986) (AFGE v. FLRA), the Authority held that it would "read IRS v. FLRA to apply to situations where according predominance to the rights established by section 7106 can be achieved without eviscerating another provision of the Statute." BATF, 45 FLRA at 348. Because strict application of the Court's decision would effectively render section 7131(d) inoperative, the Authority decided to adhere to the carve-out exception "in order to maintain the negotiability, where otherwise warranted, of matters involving official time." Id.

14. The Authority usually refers to dictionary definitions of terms used in the Statute to supply meaning where none has otherwise been provided. E.g., U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA 216, 226 n.11 (1995).

15. We refer to the following pre-enactment statements of Representatives Clay and Ford, respectively, commenting on the earlier version of section 7131(d) in the "Udall substitute," the legislation which became the Statute:

Section 7132(b) of the Udall compromise bars the use of official time for conducting the internal business of a labor organization. . . . Activities that involve labor-management contacts are not included in this section. Nor is preparation for such activities, such as grievances, bargaining, unfair labor practice proceedings, included within this section. Title VII imposes heavy responsibilities on labor organizations and on agency management. These organizations should be allowed official time to carry out their statutory representational activities just as management uses official time to carry out its responsibilities.

Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 at 934 (emphasis added).

Section 7132(b) of the compromise precludes the use of official time by employees for conducting the internal business of a labor organization. . . . This section does not . . . apply to activities of labor organizations that involve an "interface" with agency management, such as negotiations, grievances, negotiability disputes, and unfair labor practices. Nor does this section apply to preparation for such "interface" activities. Management, of course, engages in all these activities, including preparation, on official time, and subsection 7132(d)(2) makes the use of official time by employees for these activities a subject of negotiated agreement between the agency and the exclusive representative.

Id. at 957 (emphasis added).

16. When taken to its logical extreme, the Agency's argument would, if applied to section 7131(a) and section 7131(c), effectively permit management to control the scheduling of contract negotiations and Authority proceedings. There is absolutely no basis in the Statute or the legislative history for such a result.

17. It is unnecessary for us to decide today what circumstances might limit the reach of the carve-out theory. However, the Authority has implicitly acknowledged that section 7131(d) does not carve out an exception to all management rights, but only those rights that are inherently at odds with the principles underlying section 7131(d).

18. The Agency objects only to that portion of the provision dealing with religious compensatory time. The Union has not requested that the Authority sever and separately consider the portions of the provision that are not in dispute and there is no other basis on which to do so. E.g., American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 794, 797 (1996); National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Western Region, 42 FLRA 964, 973 n.4 (1991). As we find that the disputed portion is not contrary to law, we direct the Agency head to rescind its disapproval of this provision in its entirety. Cf. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308 (1996) (Provisions 2 and 4).

19. 5 C.F.R. § 550.1002(b) provides as follows:

To the extent that such modifications in work schedules do not interfere with the efficient accomplishment of an agency's mission, the agency shall in each instance afford the employee the opportunity to work compensatory overtime and shall in each instance grant compensatory time off to an employee requesting such time off for religious observances when the employee's personal religious beliefs require that the employee abstain from work during certain periods of the workday or workweek.

20. The full text of Article 31, Section 5(A) appears in the Appendix to this decision.

21. In addition to changes made to 5 C.F.R. § 430.504(d) discussed in connection with Proposal 4, there have been a number of modifications to the regulations cited by the Respondent. See 60 Fed. Reg. 43936-43948. The Agency makes no argument that the provision is inconsistent with the revised regulations, although the parties were asked to comment on the effect of the revised regulations on this provision.

22. The regulation does not further define what is meant by "disputes."

23. In finding these proposals and provisions to be within the duty to bargain or not contrary to law, we make no judgments as to their merits.


Concurring Opinion Footnotes Follow:

1. I note that, although my colleagues state that an agency's right to take action during an emergency is not intended to be the only exception to the carve-out theory, they offer no examples or guidance as to what other exceptions might exist.

2. The majority suggests that the interrelationship between section 7106(a) and section 7131(d) would extend, "when taken to its logical extreme," to sections 7131(a) and (c) as well. Sections 7131(a) and (c) are not implicated in this case and the suggestion made, sua sponte, by the majority has not been raised, briefed, or argued by the parties. Therefore, I will not address that issue here and, instead, will do so when it is presented to the Authority.

3. As discussed below, I believe that this would constitute an adverse effect within the meaning of section 7106(b)(3).

4. In this respect, I find that the provision is distinguishable from the provision requiring an agency to grant leaves of absence for employees elected or appointed to union offices that was reviewed by the court in U.S. Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992) (Office of the Chief Counsel). The court concluded that the "union ha[d] proposed a benefit (leaves of absence for its officials), and the denial of that benefit purportedly produces the requisite adverse effects." Id. at 1074. According to the court, the Authority's reasoning supporting its conclusion that the proposal constituted an arrangement was circular, and could lead to a conclusion that virtually any proposal constituted an appropriate arrangement. In this case, rather than proposing a benefit, the provision addresses the use of official time agreed to pursuant to section 7131(d). Thus, concluding that the provision constitutes an arrangement does not depend on a "bootstrap," whereby the adverse affect results from the denial of a benefit. Id. at 1073. Moreover, the adverse effects identified flow directly from the exercise of management's right to assign work and d