53:0539(59)NG - - NTEU and Commerce, Patent and Trademark Office - - 1997 FLRAdec NG - - v53 p539



[ v53 p539 ]
53:0539(59)NG
The decision of the Authority follows:


53 FLRA No. 59

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-2159-001

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 30, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

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).(1) We address here 4 proposals that were declared outside the duty to bargain during contract negotiations and 14 provisions that were disapproved by the Agency head under section 7114(c) of the Statute. Other proposals and provisions that were contained in the Union's appeal were addressed by the Authority in National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA 1265 (1997) (Department of Commerce).

For the reasons fully explained in sections III through XVII of this decision, we reach the following conclusions with respect to the proposals and provisions examined herein.(2) We find that Proposals 1, 3, 5 and 6 are within the duty to bargain. We further find that the following provisions are not contrary to law: Article 7, Section 11; Article 35, Section 9; Article 36, Section 9; Article 12, Section 4(G); Article 12, Section 5; Article 13, Section 3(M); Article 18, Section 1(G); Article 18, Section 1(H); and Article 18, Section 3(A). We dismiss the petition for review as to the following provisions: Article 14, Section 2(E); Article 14, Section 12; Article 15, Section 4; Article 19, Section 2(A); and Article 28, Section 5.

More particularly, we find the following:

Proposal 1, which would require the Agency to remove certain letters of reprimand and oral admonishments confirmed in writing from employee records, is within the duty to bargain. See Part III, infra.

Proposal 3, which establishes conditions for the reopening and renegotiation of contract provisions, is within the duty to bargain. See Part IV, infra.

Proposals 5 and 6, which require the use of progressive disciplinary actions and adverse actions under prescribed circumstances, are within the duty to bargain. See Part V, infra.

Article 7, Section 11, which states that inquiries and investigations into off-duty misconduct must be based on activity that would have some nexus to the employee's position, is not contrary to law. See Part VI, infra.

Article 35, Section 9 and Article 36, Section 9, which provide for written statements of the nexus between off-duty misconduct and the efficiency of the service and an opportunity to respond to changes in the statements of that nexus, are not contrary to law. See Part VI, infra.

Article 12, Section 4(G), which prescribes the composition of rating and ranking panels and the duties of the selecting official and the Office of Personnel, is not contrary to law. See Part VII, infra.

Article 12, Section 5, which provides that no employee will be placed in a disadvantageous position by virtue of service on a detail or work project, is not contrary to law. See Part VIII, infra.

Article 13, Section 3(M), which gives an employee an opportunity to resign before a written decision to effect a reduction in grade or removal is issued, is not contrary to law. See Part IX, infra.

Article 14, Section 2(E), which would require the use of an electronic access system to secure law office suites, is contrary to law. See Part X, infra.

Article 14, Section 12, which would grant administrative leave under certain circumstances, is contrary to law. See Part XI, infra.

Article 15, Section 4, which conditions the assignment of overtime on the assignment of training in connection with overtime assignments, is contrary to law. See Part XII, infra.

Article 18, Section 1(G), which permits the Agency to issue a written warning prior to placing an employee on sick leave restriction, is not contrary to law. See Part XIII, infra.

Article 18, Section 1(H), which would allow employees to use sick leave that they have not yet earned, is not contrary to law. See Part XIV, infra.

Article 18, Section 3(A), which would allow the use of advanced sick leave for maternity purposes, is not contrary to law. See Part XV, infra.

Article 19, Section 2(A), which would require the Agency to assign career development details in a fair and equitable manner, is contrary to law. See Part XVI, infra.

Article 28, Section 5, which would require the Agency to provide training on automated systems, is contrary to law. See Part XVII, infra.

II. Preliminary Matters

A. The Union's General and Unsupported Claims Under Sections 7106(b)(2) and 7106(b)(3) of the Statute Are Not Properly Raised

In its petition for review, the Union makes a general claim that the provisions "all set forth procedures concerning a variety of working conditions. In the alternative, they are all appropriate arrangements under section 7106(b)(3) for employees adversely affected by the Agency's decision to exercise various management rights." Petition for Review at 5. Where a union offers no arguments or authority to support its bare assertion that a particular provision is within the duty to bargain on either or both of these grounds, we do not consider the assertion. See American Federation of Government Employees, Council of Locals No. 163 and U.S. Department of Defense, Defense Contract Audit Agency, 51 FLRA 1504, 1513-14 (1996) (Defense Contract Audit Agency) (Authority rejected a union's bare assertion that a proposal was a negotiable procedure under section 7106(b)(2)); American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1317 (1996) (Immigration and Naturalization Service) (Authority determined that because the union did not explain, and the proposal did not speak to, the manner in which a disputed portion would address adversely affected employees, that portion did not constitute an arrangement under section 7106(b)(3)). Accordingly, we address and resolve in this decision only those claims under sections 7106(b)(2) and 7106(b)(3) as to which the Union has provided support for its specific assertions.

B. Determining the Meaning to be Ascribed to the Proposals and Provisions (3)

In interpreting a disputed 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 provision means and, based on its meaning, deciding whether it is, or 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 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 provision. E.g., Laurel Bay, 51 FLRA at 737. When a union's explanation is not supported by a reasonable construction, however, the explanation is deemed inconsistent with the plain wording, and the Authority does not adopt it for the purpose of determining whether 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) (Philadelphia Naval Shipyard).

C. We Consider Only the Disputed Portions of the Provisions

As we stated in Department of Commerce, the Union has not requested the Authority to sever and separately consider portions of the provisions that are not in dispute and, further, that there is no other basis on which to do so. 52 FLRA at 1288 n.18. See also American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 794, 797 (1996); Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 807 n.7 (1991). Here, as in Department of Commerce, where the Agency objects only to portions of provisions and we find that the disputed portions are not contrary to law, we order the Agency head to rescind its disapproval of the provisions in their entirety. Where, on the other hand, disputed portions are found to be contrary to law, we dismiss the petition for review as to the entire provisions. E.g., Immigration and Naturalization Service, 51 FLRA 1308 (Provisions 2 and 4).

III. Proposal 1

Article 7, (Employee Rights) Section 4(c)

A letter of reprimand will be removed from the employee's record no later than 12 months from the date of issuance. Oral admonishments confirmed in writing will be removed after 3 months.

A. Positions of the Parties

1. Agency

The Agency contends that the proposal interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute and that it is not a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Agency states that the proposal would preclude management from relying on a letter of reprimand more than 12 months after it was issued and from relying on an oral admonishment, confirmed in writing, more than 3 months after it was issued. The Agency explains that because letters of reprimand and oral admonishments would be expunged from employees' files, they would no longer be "of record" and could not be relied on in future penalties. Agency's Supplemental Brief at 2. As a result, the Agency claims that the proposal would restrict the Agency's ability to determine the degree of discipline it could impose by preventing it from using prior disciplinary records.

2. Union

The Union agrees with the Agency that, under the proposal, the Agency could not rely on letters of reprimand and oral admonishments confirmed in writing that had been removed from employee files. The Union contends that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. The Union maintains that employees would benefit because the reprimands would no longer form the basis for more severe disciplinary action. The Union asserts that the removal of letters of reprimand after 12 months is a reasonable exercise of the Agency's discretion and would not impose a significant burden. In this regard, the Union states that if additional discipline has not been brought against an employee within 12 months, the reprimand would have served its purpose "of reforming an employee's conduct[.]" Response at 4. In addition, with respect to oral admonishments confirmed in writing, the Union notes that such records are not included in the contractual definition of disciplinary action and argues that "[t]he Agency loses little when it relinquishes its right to base real disciplinary action" on oral admonishments because "[t]hese actions are not significant enough to be treated as disciplinary actions." Id. at 5.

The Union also asserts that the proposal "records a procedure by which letters of reprimand and oral admonishments confirmed in writing will be removed from the records of employees." Petition for Review at 2. Finally, the Union argues that the proposal is consistent with regulations that were contained in the Federal Personnel Manual (FPM) and afforded management the discretion to remove letters of reprimand or similar documents at any time.

B. Analysis and Conclusions

1. Meaning of the Proposal

This proposal would establish a time schedule for the removal of certain documents from employee records. The Agency would be required to remove letters of reprimand no later than 12 months from the date of issuance, and to remove oral admonishments, confirmed in writing, 3 months after issuance. The Union acknowledges that the intent of the proposal is to preclude the Agency from relying on the documents, once they have been removed from employee records, as the basis for more severe progressive disciplinary action. As the Union's statement of intent is consistent with the proposal's wording, we adopt it. Laurel Bay, 51 FLRA at 737.

2. The Proposal Is Within the Duty to Bargain

a. The Proposal Affects the Right to Discipline

The Authority has long held that proposals that would restrict the evidence an agency may rely on to support a disciplinary action directly interfere with the agency's right to discipline employees. See International Association of Machinists and Aerospace Workers, Lodge 39 and U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia, 41 FLRA 1452, 1454 (1991) (Naval Aviation Depot), and cases cited therein. Proposal 1 would establish a time limit on the use of prior written reprimands and oral admonishments to determine the penalty in subsequent discipline. Accordingly, the proposal affects management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See International Association of Machinists and Aerospace Workers, District Lodge 110, Local Lodges 1859, 2296, 2297, 2316 and U.S. Department of the Navy, United States Marine Corps Air Station and Naval Aviation Depot, Cherry Point, North Carolina, 42 FLRA 192 (1991).

b. The Proposal Is an Appropriate Arrangement

The approach for determining whether a proposal is within the duty to bargain under section 7106(b)(3) is set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that approach, the Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992) (IRS, Chief Counsel). See also Fort McPherson, 51 FLRA at 141; American Federation of Government Employees, Council of Prison Locals, Local 3974 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, McKean, Pennsylvania, 48 FLRA 225, 230-31 (1993) (Federal Correctional Institution). The adverse effect need not flow from the management right that a given proposal affects. E.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in part) (PTO).

The claimed arrangement must also be sufficiently "tailored" to compensate or benefit employees suffering adverse effects attributable to the exercise of management's right(s). E.g., id. As the Authority reaffirmed, relying on United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992) (Minerals Management Service), section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. Immigration and Naturalization Service, 51 FLRA at 1319. That section of the Statute does not bring within the duty to bargain proposals that are so broad in their sweep that the "balm" would be applied to employees indiscriminately without regard to whether the group as a whole is likely to suffer, or has suffered, adverse effects as a consequence of management action under section 7106. Id. See also PTO, 49 FLRA at 184.

If the proposal is an arrangement that is sufficiently tailored, the Authority then determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s).(4) KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. Id.

Proposal 1 would insulate employees from more severe progressive discipline under specified circumstances. As such, the proposal is designed to address the adverse effects flowing from the exercise of management's right to discipline. E.g., United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1149-50 (1992) (Proposal 1) (Corps of Engineers). The proposal also is tailored to compensate employees who suffer those adverse effects because it applies only to employees who receive letters of reprimand or oral admonishments confirmed in writing. 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, 1365-66 (1996) (Member Armendariz concurring) (Fort Jackson). Accordingly, we find that the proposal is an arrangement.

We also find that the proposal is appropriate. Employees would benefit by being protected against the imposition of more severe progressive discipline in the future based on letters of reprimand and oral admonishments confirmed in writing that have been effective in deterring conduct for which discipline is warranted. In particular, the Agency's inability to use such information to support more severe subsequent discipline would reward employees who have taken steps to avoid conduct for which progressive discipline could be imposed.

The constraints that would be imposed on the exercise of management's right to discipline are slight. First, there would still be a not insubstantial period of time during which the Agency could rely on letters of reprimand and oral admonishments confirmed in writing. For example, the Agency could exercise its right to impose more severe discipline on an employee if, during the 12-month period following receipt of a letter of reprimand, the employee engaged in conduct warranting further discipline. Second, the Agency maintains the right to rely on more severe disciplinary actions, such as suspensions and removals that are imposed based on more serious or egregious misconduct, in cases where subsequent discipline is warranted.

This proposal is unlike the proposal in Naval Aviation Depot, 41 FLRA at 1454-56, which precluded consideration of suspensions or reductions in grade or pay that occurred more than 3 years prior to the date of a proposed adverse action and was found to excessively interfere with management's right to discipline. Proposal 1 would preclude the Agency from considering only less severe penalties. Management retains the right to consider the full range of other penalties that may have been imposed in determining an appropriate disciplinary action. Although the proposal here permits management to rely on prior penalties for a shorter period of time than the proposal in Naval Aviation Depot, we find it more significant, as set forth above, that management can consider the full range of other penalties in imposing subsequent discipline.

Finally, the Agency's statement that the proposal "goes beyond an appropriate arrangement," is an unsupported assertion and, as such, does not warrant a conclusion that the proposal excessively interferes with management's right to discipline. Agency's Supplemental Statement on Petition for Review at 2.

Accordingly, we find, on balance, that the benefits afforded to employees under the proposal outweigh the intrusion on management's right to discipline. Therefore, we conclude that Proposal 1 constitutes an appropriate arrangement under section 7106(b)(3) and that it is within the duty to bargain.

In reaching our conclusion, we recognize that the Authority has reached a contrary result with respect to similar proposals and provisions. E.g., American Federation of Government Employees, Local 900 and U.S. Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri, 46 FLRA 1494 (1993) (Provision 5); Corps of Engineers, 44 FLRA at 1149-52. In those cases, the Authority did not consider the severity of disciplinary action that agencies were precluded from using when imposing future disciplinary action. In our view, the Authority did not appropriately take into account in those decisions the minor nature of the infractions and penalties at issue and, as a result, did not properly weigh the effect of the proposals on the exercise of the right to discipline against the benefits that would be afforded to employees. We will no longer follow that precedent to the extent that it is inconsistent with our decision here.

IV. Proposal 3

Article 21 (Duration and Amendment), Sections 2 and 3

Section 2: This Agreement may be reopened at any time for the following purposes:

A. Amending articles or negotiating new articles which are required by changes in law or regulations. No changes shall be considered except those bearing directly on and falling within the scope of such laws or regulations.

B. Negotiating new articles on subject [sic] not previously negotiated.

C. Negotiating matters for which new or extended bargaining rights are provided by appropriate authority.

Section 3: Any time during the term of this Agreement, the parties may by mutual accord, terminate, extend, change or revise this Agreement. The party requesting the reopening will submit proposals to the other in writing. Within thirty (30) calendar days after proposals have been received by the receiving party such party will indicate either a willingness or refusal to negotiate. If consent is obtained, the receiving party will submit counterproposals and/or proposals and negotiations will commence with the procedures set forth in Article 33. A failure to consent to reopen under this Section by either party will not be the basis for filing any grievance under this Agreement.

A. Positions of the Parties

1. Agency

The Agency contends that the proposal is outside the duty to bargain based on Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA v. FLRA), in which the court held that, under the Statute, Federal unions may not compel union-initiated midterm bargaining over issues not addressed in parties' agreements. Although the Agency acknowledges that the Authority has not accepted the court's decision or agreed to follow it in other circuits, the Agency claims that the Authority conceded, in a different case before the U.S. Court of Appeals for the Fourth Circuit, that it is bound to follow SSA v. FLRA within that jurisdiction. The Agency adds that it "resides" in the Fourth Circuit's jurisdiction. Supplemental Statement of Position at 5.

The Agency also contends that, despite the Union's intent, Section 3 of the proposal does not make bargaining discretionary. The Agency asserts that although Section 3 states that the refusal to bargain is not grievable, it does not preclude the Union from compelling the Agency to bargain through other proceedings, such as an unfair labor practice proceeding.

2. Union

The Union contends that the Authority has declined to follow the court's decision in SSA v. FLRA, and that it has found, instead, that unions have the right to initiate midterm bargaining.

The Union also distinguishes between Sections 2 and 3, noting that the former mandates bargaining while the latter makes bargaining discretionary. The Union also explains that Section 2 applies when "changes in the agreement are required by changes in law or regulation, if either party proposes new articles not previously negotiated, or if new or extended bargaining rights are provided by appropriate authority." Petition for Review at 3. Section 3 applies to "bargain[ing] changes to the existing provisions in the agreement." Id.

More specifically as to Section 2, the Union explains that Section 2(A) is "limited in its scope to bargaining over changes that are required by changes in law and regulation." Response at 11 (emphasis omitted). The Union adds that a provision of the agreement that is not in dispute (Article 3, Section 1) obligates the parties to follow existing and future laws. On this basis, the Union asserts that the agreement would have to be modified to comport with changes in law in any event. The Union also claims that "only Section 2B represents the type of mid-term bargaining proscribed by the Fourth Circuit." Id. at 8. The Union adds that, even if SSA v. FLRA were applied to Sections 2(A), 2(C) and 3, there is nothing in the court's decision that would render the proposal outside the duty to bargain. The Union maintains that if new or extended bargaining rights are provided by appropriate authority, a situation not addressed in SSA v. FLRA, there would be an obligation to bargain and the Agency could not lawfully refuse to do so.

As to Section 3, the Union claims that this part of the proposal would not permit the Union to compel midterm bargaining. Specifically, the Union notes that the phrase "may by mutual accord" signifies that if one party to the agreement does not consent to mid-term bargaining, there can be no negotiations. Response at 9 (emphasis omitted). The Union maintains that its interpretation of Section 3 is reinforced by the use of the terms "willingness" and "consent" in the remaining sentences of the section and by the final sentence, which precludes a grievance over a party's decision to withhold consent. Id. The Union also claims that, because bargaining under Section 3 is predicated on mutual consent, "the Union does not believe that it has any right to compel mid-term negotiations . . . by means of an unfair labor practice." Id. at 10. The Union adds that if an unfair labor practice charge were filed, it would be dismissed based on the language of Section 3.

B. Analysis and Conclusions

1. Meaning of the Proposal

By its terms, Section 2 of the proposal would permit either party to reopen the agreement for negotiations under prescribed circumstances. The Union explains that, once reopened, Section 2 would require bargaining. Section 3 provides for renegotiations under different circumstances. The Union explains that Section 3 bargaining is contingent on mutual assent. The Union's explanations regarding Sections 2 and 3 are consistent with their wording and we adopt them. Laurel Bay, 51 FLRA at 737. In addition, although the wording of Section 3 is silent with respect to the filing of an unfair labor practice charge, the Union's explanation as to how this section will operate shows its intention that it could not compel bargaining. As this explanation is consistent with the language of Section 3, we adopt it. Id.

2. The Proposal is Within the Duty to Bargain

The Agency objects to the proposal on two grounds. The first ground applies to Sections 2 and 3. The second ground applies to Section 3 only. We address each objection separately. For the reasons explained below, we find that Proposal 3 is within the duty to bargain.

a. Sections 2 and 3 Are Consistent With Bargaining Obligations Under the Statute

Sections 2 and 3 seek to establish the circumstances under which the parties are authorized to bargain during the term of the agreement. Under Authority precedent, the duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement over union-initiated proposals that are not contained in or covered by the agreement unless the union has waived its right to bargain on the subject matter involved. Internal Revenue Service, 29 FLRA 162, 166 (1987). In Internal Revenue Service, the Authority adopted the holding and statutory construction of the U.S. Court of Appeals for the D.C. Circuit in National Treasury Employees Union v. FLRA, 810 F.2d 295 (D.C. Cir. 1987) (NTEU v. FLRA). There, the court determined that the Statute's obligation to bargain encompasses union-initiated midterm bargaining based on the language of the Statute, congressional intent, and private sector precedent under the National Labor Relations Act.

As the Agency points out, the U.S. Court of Appeals for the Fourth Circuit interprets the Statute differently. In SSA v. FLRA, that court expressly rejected the reasoning of the D.C. Circuit, and held that bargaining over union-initiated proposals during the term of an agreement is not required by the Statute. 956 F.2d at 1281. In the face of this irreconcilable split in the circuits, the Authority has continued to adhere to the view of the D.C. Circuit, adopted in Internal Revenue Service, for the reasons that are set forth in that decision.

The proposal in this case, however, presents an issue different from that over which the Fourth and D.C. Circuits disagree in SSA v. FLRA and NTEU v. FLRA, respectively. This case concerns whether a bargaining proposal, offered as part of term negotiations and authorizing the parties to negotiate midterm, is within the Agency's duty to bargain. As such, the case before us is akin to U.S. Department of Energy, Washington, D.C., 51 FLRA 124 (1995) (Department of Energy), reversed sub nom. U.S. Department of Energy v. FLRA, 106 F.3d 1158 (4th Cir. 1997) (DOE v. FLRA). In Department of Energy, the Authority found that a collective bargaining provision obligating the agency to bargain over union-initiated midterm proposals was not inconsistent with the Statute or any other law, Government-wide regulation, or agency rule for which a compelling need had been established.(5) 51 FLRA at 129. The Fourth Circuit reversed the Authority's decision, finding that the rationale of SSA v. FLRA applied to that case as well. DOE v. FLRA, 106 F.3d at 1163.(6)

The Agency contends that because it "resides" in the Fourth Circuit, the Authority is required to apply the law of the Fourth Circuit in this case.(7) Even assuming that the Fourth Circuit would apply DOE v. FLRA to this case and find the proposal outside the Agency's obligation to bargain, the Agency's assertion is flawed in two respects: First, the Agency fails to take into account the judicial review provisions of section 7123(a) of the Statute; and second, the Agency ignores the importance of a uniformly administered Federal labor-relations program.

Under section 7123(a), a person aggrieved by a final order of the Authority may "institute an action for judicial review of the Authority's order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia. Accordingly, even when, as here, an agency's offices are located within the geographical jurisdiction of the Fourth Circuit, it is not certain that an Authority decision concerning the Agency's actions will be reviewed by that court. Were the Authority to accept the Agency's argument and find the proposal outside the Agency's duty to bargain, the Union could seek judicial review in the District of Columbia Circuit claiming, accurately, that the proposal was within the duty to bargain because it merely restates what that circuit has found to be a statutory obligation. If that court were to review such a determination, the Authority's decision would be reversed. Accordingly, irrespective of the course chosen, the Authority could find itself in the position of defending a determination which is inconsistent with precedent of the United States court of appeals in which review is obtained.(8)

Second, the Authority is charged with providing leadership in establishing policies and guidance relating to the Statute, 5 U.S.C. § 7105(a), as well as interpreting the Statute in a manner consistent with the requirements of an effective and efficient government, 5 U.S.C. § 7101(b). Such leadership can be accomplished in an efficient manner only through a consistent and uniform administration of the Statute. Cf. NLRB v. Natural Gas Utility District, 402 U.S. 600, 603-604 (1971) (National Labor Relations Act is Federal legislation, administered by a national agency, intended to solve a national problem on a national scale). This interest in a national, uniformly administered Federal labor-management relations program would be undercut if the Authority were to resolve cases based on the geographic locale of the origin of the dispute. Moreover, in light of the multiple forum options provided by section 7123(a) of the Statute, resolution of cases on this basis would be futile in any event.

Accordingly, when faced with an irreconcilable split in the circuit courts, the Authority must apply its expertise and reach a determination as to which view best effectuates congressional intent.(9) For the reasons first expressed in Internal Revenue Service, the Authority continues to hold that the duty to bargain in good faith encompasses union-initiated midterm bargaining. Consequently, we respectfully decline to apply the contrary precedent of the Fourth Circuit to this case. Instead, we adhere to the rationale set forth in Department of Energy.

b. Section 3 Is Not Contrary to Law

We reject the Agency's contention that this section is contrary to law because it could compel the Agency, through an unfair labor practice proceeding, to engage in midterm bargaining with respect to terminating, extending, changing or revising provisions of the agreement. Based on the Union's explanation that we have adopted, Section 3 would not operate in this manner. That is, nothing in Section 3 would obligate the Agency to consent to enter into midterm bargaining and, if it chose not to do so, there would be no basis on which to file an unfair labor practice charge.(10)

V. Proposals 5 and 6 (11)

Proposal 5

Article 35 (Disciplinary Actions), Section 2

The parties recognize the Agency's discretion to determine an appropriate penalty in accordance with Section 3 below. Unless inconsistent with established office policy, disciplinary actions shall generally be progressive in nature and fairly relate to the offense.

Proposal 6

Article 36 (Adverse Actions), Section 2

The parties recognize the Agency's discretion to determine an appropriate penalty in accordance with Section 3 below. Unless inconsistent with established office policy, adverse actions shall generally be progressive in nature and fairly relate to the offense.

A. Positions of the Parties

1. Agency

The Agency contends that Proposals 5 and 6 impose substantive requirements on, and therefore directly interfere with, management's right to discipline under section 7106(a)(2)(A) of the Statute by: (1) requiring the Agency to use progressive discipline; and (2) insuring that penalties fairly relate to the offenses for which they are imposed. The Agency cites a number of Authority decisions in support. The Agency further contends that in American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187 (1991) (Merchant Marine Academy) (Provision 2), the Authority found that a provision requiring an agency to apply progressive discipline was not negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

2. Union

The Union acknowledges that the Authority has found proposals similar to Proposals 5 and 6 nonnegotiable. However, the Union contends that the proposals here are distinguishable because they "preserve[] the Agency's right to deviate from its current policy of progressive discipline during the life of the [parties'] agreement." Response at 16. In this regard, the Union asserts that the proposals "tip[] the balance of the KANG test in favor of the benefit to employees." Id. The Union further argues that, unlike American Federation of Government Employees, Local 1426 and U.S. Department of the Army, Fort Sheridan, Illinois, 45 FLRA 867 (1992) (Fort Sheridan), Proposals 5 and 6 do not restrict the Agency's right to determine an appropriate penalty and, therefore, that they constitute appropriate arrangements under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

1. Meaning of the Proposals

By their express terms, these proposals require that, as a general matter and unless inconsistent with established office policy, disciplinary and adverse actions will be progressive and fairly relate to the offense. The proposals do not define the meaning of the phrase "established office policy." However, the Union makes two points that serve to explain the phrase. First, the Union explains that the Agency retains the right to deviate from its "current policy" of progressive discipline. Second, the Union contrasts these proposals with a proposal at issue in Fort Sheridan.

As to the first point, there is no further explanation as to whether "current policy" refers to policy that was in existence at the time the parties negotiated the agreement or to policy in effect during the term of the agreement, which may include changes to the pre-existing policy. The fact that the Union contrasts these proposals to the proposal in Fort Sheridan persuades us that it is the latter. In Fort Sheridan, the union explained that the intent of its proposal mandating the use of progressive discipline, which the union claimed was required under an agency regulation, was to obligate such usage "without regard to whether the regulation is rescinded or a decision made to eliminate the use of progressive discipline as to certain forms of employee conduct." 45 FLRA at 875. By stating that Proposals 5 and 6 do not restrict the Agency's right to determine an appropriate penalty, we construe these proposals to mean that, unlike the situation in Fort Sheridan, the Agency would have the flexibility to promulgate new policy during the life of the agreement. Accordingly, in view of the Union's statements, which are consistent with the wording of the proposals and which we adopt, we find that the phrase "established office policy" means that policy in effect at the time that progressive disciplinary and adverse actions are taken. See Fort McPherson, 51 FLRA at 138-39.

2. The Proposals Are Within the Duty to Bargain

a. The Proposals Affect the Right to Discipline

Both parties acknowledge that the Authority previously has found nonnegotiable proposals requiring the use of progressive discipline. E.g., Merchant Marine Academy, 39 FLRA at 198-99; U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 36 FLRA 28, 32-36 (1990) (Marine Corps Air Station). In those cases, the Authority held that restrictions on an agency's ability to choose the specific penalty to impose in disciplinary actions directly interfere with the right to discipline employees under section 7106(a)(2)(A) of the Statute. The same conclusion applies here. Although Proposals 5 and 6 are not written in mandatory terms and would permit management to deviate from the use of progressive discipline, as we have explained above, they would nonetheless require the use of progressive discipline in some circumstances. Accordingly, they affect the exercise of management's right to discipline under section 7106(a)(2)(A) of the Statute.

c. The Proposals Are Appropriate Arrangements

The Authority previously has recognized that, as a general matter, a provision that requires an agency to administer discipline in a fair or consistent manner is intended to ameliorate the adverse effects on employees who are subject to the exercise of management's right to take disciplinary action. Fort Jackson, 51 FLRA at 1365. Proposals 5 and 6, under which disciplinary actions are "generally" to be progressive and fairly relate to the offense, similarly are intended to address the adverse effects on employees flowing from the exercise of management's right to discipline. Inasmuch as the proposals would apply to those employees against whom disciplinary and adverse actions have been taken, they are also sufficiently tailored to administer "balm" "only to hurts arising from" the exercise of management rights. Minerals Management Service, 969 F.2d at 1162. Accordingly, we find that the proposals constitute arrangements.

We also find that the proposals are appropriate because they would not excessively interfere with the right to discipline. The proposals would ameliorate the adverse effects on employees by insulating them from more severe discipline than that which is progressive and proportional to the infraction. At the same time, management's ability to determine an appropriate penalty would not be seriously circumscribed for the following reasons.

First, the proposals explicitly provide for the use of progressive discipline unless doing so would be inconsistent with "established office policy." As explained above, the Agency retains the right to change its policy of progressive discipline and to apply the policy in effect at the time disciplinary and adverse actions are taken. Thus, the Agency would not, in fact, be required to use progressive discipline in all instances unless its own policies so dictate.

Second, the proposals incorporate Section 3 of Articles 35 and 36, which were not disapproved and which each set forth a non-exhaustive list of "mitigating and/or aggravating circumstances" that the Agency will apply in deciding what discipline or adverse actions are appropriate. Thus, the Agency has already agreed to apply factors that may affect the exercise of its right to discipline. We do not view the requirement that the Agency "generally" use progressive discipline as a more severe restriction on the exercise of management's right than management has already agreed to impose on itself. In our view, the intrusion on the exercise of management's right to discipline that is engendered by the proposals has less weight in view of other restrictions the Agency has agreed to apply. Cf. Department of Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505, 1510-11 (D.C. Cir. 1989) (court rejected agency argument that provision authorizing 10-day delay in employee suspensions substantively diminished agency's right to suspend immediately disruptive employees; court found that agency had already agreed to negotiate over procedures that would have had the effect of retaining disruptive employees for more than 10 days).

As the proposals do not mandate that progressive discipline be used in all instances, they are distinguishable from proposals and provisions in other cases, including those cited by the Agency, that were deemed to excessively interfere with the right to discipline. In such cases, the agencies would have been required to either use progressive discipline or impose a minimum penalty in disciplinary actions. E.g., Merchant Marine Academy, 39 FLRA at 198-99; Marine Corps Air Station, 36 FLRA at 32-36; American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1044-47 (1988), rev'd as other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, Nos. 88-7408/7470 (9th Cir. Feb. 7, 1989) (Order); International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 133-34 (1987). Here, there are no such absolute requirements.

Finally, the proposals are similar, in effect, to the provision at issue in Fort Jackson. The provision there stated that "discipline and adverse actions will be based on just cause and be consistently applied equitably and promote the efficiency of the Federal Service." 51 FLRA at 1363. The Authority found that the provision did not excessively interfere with the right to discipline because, as relevant here, the provision did not require the agency to apply the same penalties under all circumstances and it preserved the agency's ability to take into account all the circumstances surrounding the disciplinary or adverse action. Although Proposals 5 and 6 are different in that they focus on the use of progressive discipline, they are similar in that they preserve management's ability to determine appropriate discipline in a manner comparable to Fort Jackson.

In sum, and on balance, we find that the benefits afforded to employees under Proposals 5 and 6 outweigh the intrusion on the exercise of management's right to discipline. Accordingly, the proposals are within the duty to bargain.

VI. Article 7, Section 11; Article 35, Section 9; Article 36, Section 9

Article 7 (Employee Rights), Section 11

Any inquiry and investigation into allegations of off-duty misconduct must be based on activity which, if verified, would have some nexus (i.e., some relationship) to the employee's position. The parties agree that the conduct of employees while off duty shall result in action only when there is a nexus between that conduct and the employee's official position. Employees will not be subject to harassment or frivolous inquiries.

Article 35 (Disciplinary Actions), Section 9

In cases where discipline is proposed for reasons of off-duty misconduct, the Office's written notification shall contain a statement of the nexus between the off-duty misconduct and the efficiency of the service. If the deciding official decides to substantively change the nexus statement in the proposal with adverse effect on the employee, notice of such change will be provided with the summary of the oral reply. Three work days will normally be provided for the employee and/or representative to supplement the record on this subject.

Article 36 (Adverse Actions), Section 9

In cases where discipline is proposed for reasons of off-duty misconduct, the Office's written notification shall contain a statement of the nexus between the off-duty misconduct and the efficiency of the service. If the deciding official decides to substantively change the nexus statement in the proposal with adverse affect [sic] on the employee, notice of such change will be provided with the summary of the oral reply. Three work days will normally be provided for the employee and/or representative to supplement the record or [sic] this subject.

A. Positions of the Parties

1. Agency

The Agency contends that all three provisions directly interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute. The Agency claims that these provisions would place the Agency under a contractual obligation to establish a nexus between off-duty misconduct and the employee's position despite the fact that such a nexus requirement "may not always exist" under applicable laws. Statement of Position at 2. In support, the Agency relies on National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360, 410-13 (1988) (Council of VA Locals) (discussing Executive Order 12564), remanded sub nom. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. Sep. 27, 1988), decision on remand, 33 FLRA 349.

The Agency also contends that all three provisions are inconsistent with 5 C.F.R. Part 735, which prohibits an employee from engaging in criminal, infamous, dishonest, immoral, or notoriously disgraceful misconduct. The Agency further argues that Article 7, Section 11 is inconsistent with 5 C.F.R. Part 2635, which sets forth specific standards of conduct for Federal employees and authorizes agencies to supplement those standards. The Agency explains that 5 C.F.R. § 2635.106 "states that [a] violation of this part or of an Agency supplement may be cause for appropriate corrective or disciplinary action[,]" and that the Office of Personnel Management did not intend to limit discipline for these violations to instances where the Agency could demonstrate a direct relationship between the misconduct and job performance. Statement of Position at 3. In support of this latter contention, the Agency cites Defense Logistics Agency, Council of AFGE Locals, AFL-CIO and Department of Defense, Defense Logistics Agency, 24 FLRA 367, 367-70 (1986) (Defense Logistics Agency). Finally, the Agency contends that Article 35, Section 9 and Article 36, Section 9 are inconsistent with Executive Order 12564 because there is no nexus requirement for discipline based on a violation of the Drug Free Workplace Program.

2. Union

The Union contends that Article 7, Section 11 is identical to a provision found negotiable by the Authority in United States Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 31 FLRA 1123 (1988) (AFGE, National Border Patrol Council). The Union further states that Article 7, Section 11 is intended "only to restrict investigations or inquiries into off-duty misconduct that could not form the basis for any action by the Agency against an employee." Union's Response at 20. According to the Union, the provision "does not preclude investigations or inquiries which could lead to some disciplinary action." Id. More particularly as to Article 35, Section 9 and Article 36, Section 9, the Union states that they require "only that the Agency act in accordance with the nexus requirement that exists in the law." Id. at 55-56.

The Union also contends that in AFGE, National Border Patrol Council, the Authority rejected the argument that provisions that contain nexus requirements interfere with Executive Order 12564 and found, instead, that such provisions would not prevent any investigation required by executive orders, their implementing regulations, or management's internal security practices. The Union asserts that the Authority's reasoning should extend as well to the Agency's assertions regarding 5 C.F.R. § 735.203 and Part 2635. The Union also cites American Federation of Government Employees, AFL-CIO, Council of Marine Corps Locals, Council 240 and Department of the Navy, United States Marine Corps, 35 FLRA 108 (1990) (U.S. Marine Corps), in support.

B. Analysis and Conclusions

1. Article 7, Section 11

a. Meaning of the Provision

Article 7, Section 11 would permit inquiries and investigations into allegations of off-duty misconduct only where the activity, if verified, would have some relationship to an employee's position. The Union explains that the provision is intended to restrict inquiries and investigations where off-duty misconduct could not form the basis for any action by the Agency against an employee. This explanation as to how the provision would operate is, in effect, synonymous with the provision's express requirement that inquiries and investigations have some relationship to an employee's position. As the Union's explanation is consistent with the plain language of the provision, we adopt it. Fort McPherson, 51 at 138-39. Thus, a relationship between the alleged off-duty misconduct and the employee's position would be established whenever the Agency is entitled to take disciplinary action against an employee for such off-duty misconduct.

b. The Provision Is Not Contrary to Law

Based on the above interpretation, Article 7, Section 11 would not preclude any investigations or inquiries into off-duty misconduct that could lead to some disciplinary action against an employee. Consequently, the provision would not affect management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See also U.S. Marine Corps, 35 FLRA at 110-12 (proposal requiring nexus standard for adverse actions did not interfere with management's right to discipline).

We reject the Agency's arguments that the provision would conflict with the Agency's obligations under Executive Order 12564 and 5 C.F.R. Parts 735 and 2635. First, Executive Order 12564 seeks to eliminate the use of illegal drugs by Federal employees, either on or off-duty, and requires that employees found to be using such drugs be disciplined. Accordingly, Executive Order 12564 relates to conduct, including off-duty conduct, that could form the basis for agency action against an employee. Similarly, as 5 C.F.R. Parts 735 and 2635 prescribe standards of conduct for Federal employees, an employee who fails to comply with those standards would be subject to disciplinary action, thereby establishing a relationship between off-duty misconduct and the employee's position. Thus, as the Agency could take action against an employee for illegal drug use and for violations of standards of conduct governing Federal employees, a nexus would exist between the activity and the employee's position. See AFGE, National Border Patrol Council, 31 FLRA at 1131-32 (provision that would restrict investigations and inquiries that have no relationship to an employee's employment would not prevent investigations that are required or authorized by, among other things, executive orders, including Executive Order 12564, and regulations). As such, the provision would not prevent the Agency from taking actions that are required by laws and regulations.

The Agency's reliance on Council of VA Locals is misplaced. The proposal in that case would have prevented the agency from disciplining an employee based on the use of drugs unless the usage would have adversely affected the employee's job performance or behavior at work. The Authority found that the proposal was outside the duty to bargain, as relevant here, because it would have prevented the agency from disciplining an employee unless the employee's conduct adversely affected the employee's job performance. Unlike that proposal, which was limited to conduct affecting job performance, this provision encompasses matters relating more broadly to an employee's position. It would not restrict the Agency's ability to investigate off-duty misconduct in accordance with Executive Order 12564 and 5 C.F.R. Parts 735 and 2635. We also reject the Agency's reliance on Defense Logistics Agency. The provision in that case addressed employees' privacy. Based on the union's intent, the Authority concluded that the provision limited the agency's ability to discipline employees to instances where it could establish a direct relationship between conduct and job performance. In contrast, the provision here would not limit inquiries and investigations into an employee's off-duty misconduct where such misconduct could form the basis for Agency action against the employee under laws and regulations.

2. Article 35, Section 9; Article 36, Section 9

a. Meaning of the Provisions

These provisions require that where discipline is proposed for reasons of off-duty misconduct, the written notification provided to employees will contain a statement of the nexus between the off-duty misconduct and the "efficiency of the service." Thus, under these provisions, the Agency must tell the employee the relationship, if any, between the employee's asserted misconduct and the efficiency of the service. The provisions also require that the Agency provide an opportunity for the employee and/or a representative to "supplement the record" where changes are made to that nexus statement.

b. The Provisions Are Not Contrary to Law

We reject the Agency's contentions that the provisions are inconsistent with 5 C.F.R. Part 735 and Executive Order 12564, and with management's right to discipline under section 7106(a)(2)(A) of the Statute because they contain a nexus standard. The provisions simply set forth notification requirements. They do not require the establishment of any nexus. The Agency makes no argument that the furnishing of such written notification is in any way contrary to law, rule or regulation. Accordingly, we find that these provisions are not contrary to law. See, e.g., National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279, 1314-18 (1992) (furnishing written notification of reasonable suspicion for employee drug test and providing reasons therefor held to be within the duty to bargain).

VII. Article 12, Section 4(G)

G. In order to provide a fair ranking of more than eight (8) candidates subject to panel evaluation, an evaluation panel will be utilized. The panel will be constituted in the following manner:

A panel for a particular position will consist of at least three members, selected by the Office of Personnel, one of whom shall be from an office or unit other than the one in which the vacancy is located. At least one of these members must be familiar with the work where the vacancy is located. When advice and guidance on the interpretation of qualifications is considered essential, the selecting official may advise the panel but has no vote. Such advice should normally be provided before the panel receives the names and applications of the candidates.

A. Positions of the Parties

1. Agency

The Agency contends that the provision directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute for the following reasons: (1) the provision makes a specific assignment of work to the Office of Personnel, by requiring that office to select employees to serve on an evaluation panel; (2) the selection of employees to serve on the evaluation panel involves an assignment of work to those employees; and (3) the provision mandates that the selecting official act as an advisor to the panel and prohibits that same official from being assigned the task of voting with the panel. In support of each of these reasons, the Agency cites: (1) American Federation of State, County, and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 11 FLRA 632 (1983) (Proposals 1 and 2); (2) Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795 (1991) (Provision 4) and National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), enf'd sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982); and (3) National Treasury Employees Union and Department of the Treasury, 21 FLRA 1051 (1986) (Provision 7).

2. Union

The Union contends that the provision is a negotiable procedure within the meaning of section 7106(b)(2) of the Statute because it merely specifies the circumstances in which applicants for vacancies will be rated by a panel. In support, the Union cites National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362 (1990) (Naval Plant). The Union claims that the provision does not interfere with management's right to assign work because it: (1) preserves management's discretion to select the particular individuals to serve on the evaluation panel; and (2) permits the Agency to designate the individual within the Office of Personnel who will select the members of the evaluation panel. In this latter connection, the Union cites Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521 (1990) (Member Armendariz, concurring in part and dissenting in part) (VAMC, Milwaukee) (Provision 3).

Alternatively, the Union contends that the provision is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Union explains that the provision is intended to ensure that at least one member of the panel has some familiarity with the work where the vacancy is located. According to the Union, the benefit to the employees is substantial because if employees are rated by a panel with some knowledge of the job for which the employees are competing, the panel will be more likely to rate employees based on their qualifications for the job. The Union maintains that the burden on management's right is slight because only one member of the panel selected by the Agency must have knowledge of the work. The Union also states that the Agency would benefit from the provision by receiving a more accurate rating of employee qualifications. More particularly as to the third sentence of the provision, regarding the duties of the selecting official, the Union claims that allowing that official to vote with the panel would undermine the objectivity of the process. The Union claims that the provision would protect employees from the adverse effects resulting from the selecting official's exercise of influence in the rating process. The Union also asserts that employees will benefit by having their qualifications for the vacancy evaluated objectively and that the burden on the Agency is minimal because the selecting official retains the authority to select from among objectively rated candidates.

B. Analysis and Conclusions

1. Meaning of the Provision

This provision would require the use of an evaluation panel for selection actions when there are more than eight candidates who are being considered for a position. The provision also provides for: a minimum of three panel members; selection of panel members so that one member is from an office or unit other than the one at which the vacancy is located and at least one member is familiar with the work where the vacancy is located; the designation of the Office of Personnel to select panel members; the authorization of the selecting official to provide advice and guidance, but not vote, on interpretations of qualifications; and the time frame for providing such advice to panel members.

The Agency objects only to three portions of the provision: (1) the specific assignment of work to the Office of Personnel; (2) the composition of the panel; and (3) "mandating that the selecting official act as an advisor" while prohibiting the assignment of the task of voting to that official. To the extent the Agency's third argument interprets the provision to require the selecting official to provide advice and guidance, we reject that interpretation. The express wording of the provision states that the selecting official "may" advise the panel. Accordingly, the provision would permit, but would not require, the selecting official to advise the panel. We also note that the Agency does not object to the use of panels per se nor to their use when there are more than eight candidates.

2. The Provision Is Not Contrary to Law

a. The Provision Affects the Right to Assign Work

The right of an agency to assign work under section 7106(a)(2)(B) of the Statute includes the authority to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. American Federation of Government Employees, Local 3392 and U.S. Government Printing Office, Public Documents Distribution Center, Pueblo, Colorado, 52 FLRA 141, 143 (1996). Employees appointed to ranking panels are performing work for the Agency and the selection of employees involves a work assignment by the Agency. See American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Navy Resale Activity/Navy Exchange, Naval Weapons Station, Charleston, South Carolina, 35 FLRA 1128, 1136 (1990) (Navy Resale). In contrast, proposals that simply require the use of rating and ranking panels do not affect the exercise of management rights, including the right to assign work, and have been found to be within the duty to bargain. E.g., National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 778-79 (1992) (Customs Service). As explained below, we find that portions of Article 12, Section 4(G) affect the right to assign work.

The first portion of the provision to which the Agency objects would require the Office of Personnel to select panel members. Although the Union claims that this portion does not affect the right to assign work because it permits the Agency to designate the individual within the Office of Personnel who will select the members of the evaluation panel, the portion nonetheless assigns a specific task to the Office of Personnel. In this manner, the provision is comparable to a proposal that was found outside the duty to bargain in National Federation of Federal Employees, Local 1437 and United States Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1057-63 (1990) (Picatinny Arsenal). Proposal 2 in that case would have required: (1) the Civilian Personnel Office to appoint employees to rating and ranking panels; and (2) the Equal Employment Opportunity Office to compile a list of nominees for the panel. The Authority held that those portions of the proposal directly interfered with the right to assign work because they dictated the specific duties that would be performed by the designated offices.

The Union does not distinguish Picatinny Arsenal but, instead, cites for support a provision in VAMC, Milwaukee, 35 FLRA at 526-29, that required a supervisor to post a notice, at least two weeks in advance, indicating which employees would be expected to work on holidays. However, VAMC, Milwaukee is distinguishable because, in that case, the agency did not assert that management would be required to designate a particular individual to perform a specified task. In this case, the Agency expressly argues that the assignment of work to the Office of Personnel is inconsistent with its right to assign work. Nothing in VAMC, Milwaukee supports a conclusion that the first disputed portion of Article 12, Section 4(G) does not affect the right to assign work.

The second portion of the provision to which the Agency objects concerns employee service on evaluation panels, which the Agency claims involves the assignment of work. This portion of the provision specifies that at least one panel member must come from an office or unit other than the one in which the vacancy is located, and that at least one member who is familiar with the work where the vacancy is located must be appointed to serve on a panel. The Authority previously has found that proposals that dictate the types or grades of employees assigned to rating panels directly interfere with the exercise of management's right to assign work. E.g., Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 816-18 (1991) (POPA) (Provision 4); American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 409-11 (1987) (Proposal 8). Although the Union claims that management's ability to select the particular individuals to perform the duties of the evaluation panel is preserved, this portion does more than simply require the assignment of panel duties to employees whom management has selected. This portion would limit management's assignment of evaluation panel duties to employees from particular offices and who have familiarity with the work where the vacancy is located. Thus, this portion of the provision is distinguishable from a provision in Naval Plant, 35 FLRA at 367-68, which the Authority found established a ranking panel but did not violate the right to assign work because it did not require the agency to assign duties to ranking panel members it had not chosen.

The third portion of the provision to which the Agency objects provides that the selecting official may advise the panel but has no vote. The Authority previously has found that proposals that limited the role of selecting officials directly interfered with the right to assign work. E.g., Customs Service, 46 FLRA at 777-79 (Section 8A); Navy Resale, 35 FLRA at 1134-36 (Proposal 4). Similarly, here, this portion of the provision affects management's assignment of duties to the selecting official.

b. The Provision Is Not a Procedure

The Authority previously has held that provisions that are inconsistent with the exercise of a management right do not constitute procedures under section 7106(b)(2) of the Statute.(12) E.g., Customs Service, 46 FLRA at 726. Applying that precedent to our finding that Article 12, Section 4(G) affects the right to assign work, we conclude that it is not a procedure under section 7106(b)(2) of the Statute.

c. The Provision Is an Appropriate Arrangement

The adverse effects the Union identifies in this case flow from the exercise of management's right to select. In this connection, it is well established that rating and ranking panels are part of the process an agency uses to select candidates to fill vacant positions. E.g., Picatinny Arsenal, 35 FLRA at 1061. The Union claims that, without the protections afforded by this provision, employees who are rated by evaluation panels will not be accurately rated on their qualifications. The Union also asserts that, in exercising its right to select, the selecting official could influence the rating process, resulting in unfair ratings and a lack of objectivity in the rating process. We find that the Union has established that the provision is designed to address adverse effects flowing from management's right to select.

With regard to the part of the KANG test that requires tailoring, we recognize that the provision is not directed only to those employees who would be unfairly and inaccurately rated. Instead, it would include all employees who are rated by evaluation panels when there are more than eight candidates. As we stated earlier, see Part III.B.2.b., provisions that are so broad in their sweep as to be applied without regard to whether employees have suffered, or are likely to suffer, adverse effects are not sufficiently tailored. At the same time, however, the Authority has held that "[p]roposals that are prophylactic in nature, in that they are intended to eliminate the possibility of an adverse effect, may constitute appropriate arrangements negotiable under section 7106(b)(3) of the Statute." PTO, 49 FLRA at 191.

Article 12, Section 4(G) is designed to be prophylactic in that it seeks to eliminate the possibility of unfair or inaccurate ratings by individuals who are unfamiliar with an employee's work or by selecting officials who have predetermined choices. Significantly, the provision applies only to employees who apply for positions and who, given a sufficient number of candidates, are subject to the panel evaluation process. As such, the scope of this provision is limited to that group of employees who apply for a particular position. Within that group, employees who may be harmed as a result of unfair or inaccurate ratings cannot be determined in advance. Realistically, it is only after an evaluation panel has completed its role and a selection made that an unsuccessful candidate is likely to challenge the fairness and accuracy of the evaluation process. Only then can employees who were harmed by that process be identified. Also at that time, only corrective actions can be taken to ameliorate any harm engendered by the selection process. However, section 7106(b)(3) contemplates that parties may negotiate ways of preventing harm from occurring in the first instance. See Minerals Management Service, 969 F.2d at 1163 (the court rejected the theory that the "use of the past tense in the phrase 'adversely affected' creates a temporal wall forbidding any negotiability except as to harm that has already occurred."). Article 12, Section 4(G) is designed to prevent the occurrence of unfair or inaccurate ratings in the selection process. Accordingly, we find that the provision is sufficiently tailored so that it constitutes an arrangement. See also PTO, 49 FLRA at 194-95 (provision prohibiting immediate supervisors from soliciting or collecting charitable pledges found sufficiently 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 and sought to address or prevent actual or anticipated adverse effects on those employees).

Having found that Article 12, Section 4(G) is an arrangement, we will no longer follow decisions that suggest that proposals concerning rating and ranking panels can never constitute appropriate arrangements. See, e.g., American Federation of Government Employees, Local 3434 and National Aeronautics and Space Administration, Marshall Space Flight Center, Alabama, 49 FLRA 382 (1994) (Authority rejected union claim that proposal, which sought to include union participation on rating and ranking panels that were used when filling positions under a competitive placement plan, constituted an arrangement). For the reasons stated above, proposals that seek to mitigate forseeable adverse effects on employees who are subject to a rating and ranking panel evaluation process can constitute arrangements.(13)

We next address whether the arrangement is appropriate or whether it excessively interferes with management's rights. In this connection, the provision protects employees by ensuring that they are evaluated fairly and objectively by members of an evaluation panel who have some knowledge of the qualifications necessary to perform the work of the vacant position and without the selecting official's influence. We find that the advantages afforded by such review are significant.

We further find that the effect on management's right to assign work is minimal. In this regard, the provision requires that only one member of the panel have some familiarity with the work entailed by the position that is vacant and that one member of the panel be located in an office or unit other than the one in which the vacancy is located. The Agency retains the discretion to appoint employees with these specified characteristics to the panel as well as all other panel members. Furthermore, there is no indication in the record that service on a panel by any employee would be on other than an occasional basis and no evidence that management would be unable to assign other, non-panel related work to employees during the pendency of their panel service. As such, management's ability to assign work would not be seriously impaired.

Additionally, requiring the Office of Personnel to make panel assignments is not alleged to be, and there is no basis in the record on which to conclude that it would be, a burdensome task. Also, nothing in the provision would prevent that Office from soliciting input from managers or supervisors regarding the availability of employees to serve on panels. Finally, although the Agency may not appoint the selecting official as a voting member of the panel under the provision, the provision permits the selecting official to participate by offering advice and guidance to the other members of the panel. Furthermore, the selecting official retains the ultimate authority to select from among fairly rated candidates.

On balance, we find that the burden placed on management's right to assign work is outweighed by the benefits afforded to employees and that, therefore, the provision does not excessively interfere with that right.(14) Accordingly, we conclude that Article 12, Section 4(G) is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

VIII. Article 12 (Promotion and Reassignment), Section 5

No member of the unit shall be placed in a disadvantageous position with regard to promotions by virtue of officially initiated service on a detail or work project.

A. Positions of the Parties

1. Agency

The Agency contends that the provision directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute because it would prohibit the Agency from detailing or assigning employees under certain circumstances. In support, the Agency relies on National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 44 FLRA 738 (1992) (Provision 5) (Red River Army Depot). The Agency states that its right to assign employees would be "drastically impair[ed]" and notes, by way of example, that if an employee performed poorly while on detail, the provision would prohibit management from considering that performance when the employee applied for a promotion. Agency's Supplemental Brief at 3. The Agency also explains that the term "officially initiated service" reflects a detail that has been initiated by the Agency and not at the request of an employee.

2. Union

Without addressing how the provision affects management's rights, the Union contends that the provision is an appropriate arrangement under section 7106(b)(3) of the Statute in that it is designed to limit the adverse effects on employees of being detailed to another position even if, as the Union explains, employees volunteer for such assignments. According to the Union, "virtually the same language as Article 12, Section 5 concerning the potential adverse impact of assignments to detail work" was found negotiable in Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Denver District, Denver, Colorado, 27 FLRA 664, 672 (1987) (IRS, Denver). Union's Response at 23. The Union claims that the provision in that case was "broader and more inclusive" than the provision here and relies on the Authority's reasoning in IRS, Denver to support its position that Article 12, Section 5 is within the duty to bargain.

The Union also asserts that, unlike the provision in Red River Army Depot, this provision would not require the Agency to consider alternate personnel practices, such as recruiting, promotion, or transfer, before assigning an employee to a detail. The Union states that the term "officially initiated service" refers to a work project or detail that is officially sanctioned or initiated by the Agency.

B. Analysis and Conclusions

1. Meaning of the Provision

This provision operates when employees are assigned to a detail or work project that is "officially initiated." The Union's explanation that employees can volunteer for a detail or work project is consistent with the wording of the provision and we adopt it. Laurel Bay, 51 FLRA at 737. The Union's further explanation that the provision would not require the Agency to consider the use of other personnel actions, such as promotions or transfers, before assigning an employee to a detail is also consistent with the wording of the provision and we adopt it. Id.

Additionally, as neither the wording of the provision nor the Union's explanation makes clear how the term "disadvantageous" is to be defined, we interpret the Union's reliance on IRS, Denver and the Authority's rationale expressed therein, to reflect the Union's view that the provision is intended to operate in the same manner as the provision in IRS, Denver. In that case, the Authority found negotiable a provision that provided that detailed employees would not be adversely affected with regard to promotions or evaluations because they had performed lower-graded work on details. Based on the Union's reliance on IRS, Denver, we construe this provision as designed to ensure that work performed on details will not disadvantage employees who later seek promotions. In IRS, Denver, the Authority found no indication that the provision was intended to shield poor performance of lower-graded work from appropriate remedial action. We also construe the Union's position to mean that the Agency would not be prevented by Article 12, Section 5 from evaluating an employee's performance while on a detail. The Union's position that Article 12, Section 5 is intended to operate in the same manner as the provision in IRS, Denver is consistent with the wording of the provision before us. We adopt that position for the purpose of ascertaining the meaning of Article 12, Section 5. Laurel Bay, 51 FLRA at 737.

In sum, this provision operates when employees are assigned to or volunteer for a detail or work project that is initiated by the Agency. Although employees are assured that they will not be placed at a disadvantage with regard to promotions because they have received such work assignments, the Agency retains the right to evaluate their performance while on the detail or work project.

2. The Provision Is Not Contrary to Law

Based on the meaning of the provision described above, we reject the Agency's assertion that it would be prevented from considering an employee's performance while on a detail or work project when the employee applied for a promotion.

In addition, this provision does not prohibit the Agency from detailing or assigning employees. Instead, the Agency retains the right to assign employees to details or work projects. As such, the provision does not affect management's right to assign employees under section 7106(a)(2)(A). The provision is distinguishable from the provision in Red River Army Depot that, in relevant part, was found nonnegotiable. The provision in that case specifically precluded management from assigning employees to details in lieu of other appropriate personnel actions. In contrast, Article 12, Section 5 does not limit the Agency's ability to assign employees to details or work projects. Rather, it operates after management has made one of these work assignments to ensure that employees are not placed at a disadvantage in terms of promotional opportunities. Accordingly, we find that Article 12, Section 5 is not contrary to law.

IX. Article 13 (Performance Appraisal), Section 3(M)

Whenever management has decided to effect a reduction in grade or removal, the employee will be offered an opportunity to resign before the written decision is issued.

A. Positions of the Parties

1. Agency

The Agency contends that the provision directly interferes with management's rights under section 7106(a)(2)(A) of the Statute. The Agency states that by requiring management to give an employee the opportunity to resign before implementing a reduction in grade or a removal, the provision would preclude the Agency from exercising its right to take disciplinary action under certain situations. In support, the Agency relies on National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112 (1991) (Army Information Systems Command).

The Agency also claims that the provision is contrary to Government-wide regulations. The Agency explains that, if an employee resigns, the provision would prevent the Agency from including in the Notification of Personnel Action, SF-50, a statement that the employee resigned after receiving a Notice of Proposed Removal. The Agency cites a provision of FPM Supplement 296-33, Paragraph S31-4c(2)(c), which, prior to the FPM's abolishment, provided that "[w]hen an employee submits a request for resignation after receiving written notice of proposed disciplinary or adverse action, the pending action must be listed as the agency finding on the SF 50 . . . ." Agency's Supplemental Brief at 4 (emphasis omitted). According to the Agency, this regulation was incorporated into a Guide for Processing Personnel Actions (Guide) issued by the Office of Personnel Management (OPM) after the FPM's abolishment. The Agency maintains that, in order to comply with OPM regulations and maintain accurate personnel records, it is required to annotate an employee's official personnel file with a comment that an employee resigned after receiving written notice of a proposed decision to separate or demote the employee.

Additionally, the Agency states that, while an employee can resign at any time, the intent of the provision is to permit an employee to resign with a "clean record," thereby prohibiting the required annotation on the employee's official personnel record. Agency's Supplemental Brief at 4.

2. Union

The Union states that the provision "forces affected employees to choose between reduction in grade or removal . . . and resignation from the job . . . ." Response at 27. The Union asserts that the loss of a job under these circumstances is tantamount to disciplinary action and, consequently, that the provision does not restrict management's right to discipline. The Union also claims that the provision does not affect the basis on which disciplinary action is proposed and, as such, that the provision is distinguishable from that at issue in Army Information Systems Command.

Alternatively, the Union argues that the provision is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Union claims that a reduction in grade or removal may prevent or reduce future employment opportunities and may cause the employee "psychological, financial, or family problems." Id. at 29. The Union argues that the provision would mitigate these adverse effects without a significant burden on management's rights. The Union maintains that the Agency's goal of removing an unsatisfactory employee from the workforce would still be accomplished under the provision.

The Union also states that it is unaware of any conflict between the provision and applicable law or regulation and urges the Authority to disregard the Agency's argument regarding one of those regulations, which the Union claims was incorrectly cited. Finally, in response to a question posed by the Authority with regard to whether an employee can resign at any time, the Union states the following:

This provision memorializes an employee's opportunity to resign before the employee's file is blemished by recordation of a reduction in grade or removal. To the extent not prohibited by law, discretion can be exercised to notate reasons for resignation that may have less severe an impact on the employee's future employment opportunities than a notation that the employee resigned under threat of reduction in grade or removal.

Union's Supplemental Brief at 5.

B. Analysis and Conclusions

1. Meaning of the Provision

The provision requires that when management "has decided to effect" a reduction in grade or removal an employee will be given an opportunity to resign before a "written decision" is issued. Neither of the quoted phrases is defined or clearly explained. The thrust of the Union's argument is to permit an employee to resign before any written recordation of a reduction in grade or removal is made. Consistent with the Union's intent, we construe this provision to mean that when management has made the initial determination to reduce an employee's grade or remove an employee, the Agency must offer the affected employee an opportunity to resign before that employee is given a written notice of proposed reduction in grade or removal. In construing the provision in this manner, we note that the provision is silent with regard to what steps the Agency must take in providing the opportunity to resign and the period of time that offer is available. The provision simply requires the Agency to extend that opportunity.

2. The Agency's Argument Is Properly Before the Authority

We deny the Union's request that we not consider the Agency's argument concerning a Government-wide regulation that was not correctly cited. The Agency has maintained throughout this proceeding that the provision is inconsistent with the requirement of properly annotating personnel records. Further, the parties were asked to supplement the record with regard to the applicable statutory or regulatory provisions governing the documentation of personnel actions and to specify those provisions. The Agency provided correct citations at that time and both parties had an opportunity to present their positions in full. Thus, the argument was properly raised before the Authority.

3. The Provision Is Not Contrary to Law

We reject the Agency's argument that the provision is inconsistent with regulatory requirements concerning the proper annotation of an employee's resignation. The Agency relies on a regulation in OPM's Guide to Processing Personnel Actions that concerns "Separations by Other than Retirement." It governs, among other things, performance-based removals under 5 C.F.R. Part 432.(15) The regulation addresses appropriate documentation on the SF-50 when an employee submits a resignation after receiving written notice of proposed disciplinary or adverse action. As we have explained above, this provision operates before an employee has received a written notice that management proposes to remove the employee. Indeed, in such circumstances, the regulation on which the Agency relies prohibits an agency from annotating on the SF-50 any information regarding a proposed or pending disciplinary or adverse action when an employee has resigned before receiving notification, in writing, of such proposed action.(16)

We also reject the Agency's argument that the provision is inconsistent with section 7106(a)(2)(A) of the Statute, which includes the right to remove and reduce in grade. The Authority previously has found that proposals or provisions that preclude management from taking actions against an employee for a particular offense directly interfere with that management right. E.g., International Federation of Professional and Technical Engineers, Local 1 and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 49 FLRA 225, 230 (1994). The "offense" may include unacceptable performance. See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1405 (1987), petition for review denied, 873 F.2d 1485 (D.C. Cir. 1989). The provision here does not preclude management from removing an employee or reducing an employee's grade. Because an employee can resign at any time, as the Agency recognizes, the provision does not implicate the exercise of management's right to remove employees or reduce their grade or pay. Stated otherwise, even in the absence of such a provision, the Agency could not refuse to accept an employee's resignation in order to remove the employee or effect a reduction in grade.

The Agency's reliance on Army Information Systems Command is misplaced.(17) As relevant here, the proposal in that case would have prevented management from using approved leave as the basis for disciplinary action. Because the proposal restricted the agency's ability to discipline, there was an impermissible effect on the exercise of that management right. There is no such restriction on the right to discipline here.

X. Article 14 (Physical Facilities), Section 2(E) (18)

Management will provide a secured work space. Law Office suites will be secured via an electronic access system.

A. Positions of the Parties

1. Agency

The Agency contends that this provision interferes with its right to determine internal security practices under section 7106(a)(1) of the Statute. The Agency claims that section 7106(a)(1) includes the right to determine what is necessary to safeguard the Agency's physical property against internal or external risks, improper or unauthorized disclosure of information, and the disruption of the Agency's operations. The Agency asserts that, by mandating the use of an electronic access system to secure law office suites, the provision precludes management from selecting any other security system. The Agency explains that its offices presently are secured by electronic, key-controlled access systems.

2. Union

The Union contends that employee safety and security at the workplace are general conditions of employment and that the Authority has found that proposals concerning building security are negotiable. The Union cites various Authority decisions in support. Without addressing how the provision affects management's rights, the Union further claims that the provision is an appropriate arrangement under section 7106(b)(3) of the Statute in that it is intended to provide security and safety to employees. The Union adds that the provision does not prevent the Agency from implementing additional security measures and that the "impact" of this provision is identical to the impact of the proposal in American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, Dunbar Branch Office, Baltimore, Maryland, 37 FLRA 350, 354-55 (1990) (SSA, Dunbar). Union's Response at 31. The Union also states, as relevant here, that "[t]he use of an electronic system would not preclude, subject to negotiations, the implementation of an additional system to increase security." Union's Supplemental Brief at 6.

B. Analysis and Conclusions

1. Meaning of the Provision

The portion of the provision that is in dispute would require the Agency to secure law office suites through the use of an electronic access system. Although the Authority sought clarification from the parties regarding the manner in which this provision was intended to operate, it is unclear from their statements what type of electronic access system is envisioned and, more particularly, whether the system the Union proposes to use is the same as the electronic, key-controlled access system that the Agency states it is presently using. It is unnecessary to resolve these matters, however, in view of our disposition of this provision.

2. The Provision is Contrary to Law

a. The Provision Affects the Right to Determine Internal Security Practices

It is well established that the right to determine internal security practices under section 7106(a)(1) includes the authority to determine the policies and practices that are part of an agency's plan to secure or safeguard its personnel, physical property or operations against internal and external risks. E.g., American Federation of Government Employees, Federal Prison Council 33 and U.S. Department of Justice, Federal Bureau of Prisons, 51 FLRA 1112, 1115 (1996). Provisions that require management to take specific actions to safeguard an agency's personnel and operations directly interfere with the right to determine internal security practices. E.g., SSA, Dunbar. Because the instant provision would require the Agency to use an electronic access system to protect the security of its property and personnel, we find that the provision affects management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

b. The Provision Is Not an Appropriate Arrangement

Applying the first prong of the KANG standard, we find that the Union has not established that the provision is an arrangement. The Union has not identified any adverse effects on employees, either actual or reasonably foreseeable, that flow from the exercise of management's right to determine its internal security practices. The only argument advanced by the Union to support its claim that the provision is intended as an arrangement is the contention that the provision is designed to provide security and safety to employees. However, the Union has not explained how management's choice of its internal security measures has failed to provide adequate security.

Previously, in determining whether provisions were intended to ameliorate the adverse effects flowing from the exercise of an agency's right to determine its internal security practices, the Authority examined the existence or absence of security measures at the agency's facilities. E.g., American Federation of Government Employees, AFL-CIO, Local 2782 and U.S. Department of Commerce, Bureau of the Census, Washington, D.C., 49 FLRA 470, 475 (1994) (Census); SSA, Dunbar, 37 FLRA at 360. The Authority also took into account actual or foreseeable effects on employees and agency property. E.g., POPA, 41 FLRA at 839; National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 620-22 (1990) (EPA). For example, in EPA, the record showed that there had been numerous incidents involving employees' security in and around the agency's facilities, including one fatality caused by an individual who had improperly gained access to the building in which that employee worked. 36 FLRA at 621. There was also evidence of threats to the security of the agency's facilities, including thefts, vandalism, and bullet holes found in windows of employee offices. Id. Considering these factors, the Authority found that a proposal requiring that employees in two agency facilities receive the same level of protection provided to employees in a third facility was an arrangement to address the adverse effects of the internal security practices that the agency had employed.

In this case, there is no evidence or assertion that the security measure currently provided by the Agency, which consists of an electronic key-controlled access system, fails to provide adequate security for employees and the Agency's property and operations. We reject the Union's claim that, as the impact of the proposal in SSA, Dunbar is identical to the impact of the provision here, the Authority should find this provision to be an appropriate arrangement. In SSA, Dunbar, the union proposed adoption of a practice in order to deal with irate or potentially dangerous claimants where no practice to deal with that situation existed. The Authority found that the proposal was intended to address the adverse effects of employee work assignments based on union arguments that specifically addressed the danger to employees. In contrast, the Union here has failed to demonstrate that management's choice of its internal security practices has resulted in actual or foreseeable adverse effects on employees that the provision is intended to ameliorate.

Finally, the Union's contention that employee safety and security at the workplace are general conditions of employment that the Authority has found negotiable does not persuade us to reach a different result. The negotiability of each provision must be assessed based on the record presented to the Authority. Not all provisions relating to safety and security have been found negotiable. E.g., Census, 49 FLRA at 473-76; EPA, 36 FLRA at 629-32.

In sum, we find that the Union has failed to establish that the provision satisfies the first prong of the KANG standard. Accordingly, we conclude that the provision does not constitute an appropriate arrangement and that the Agency head properly disapproved it.

XI. Article 14 (Physical Facilities), Section 12

The Office shall grant excused administrative leave when physical conditions at an employee's work station endanger the safety or health of an employee if the Office is unable to provide an alternative work station.

A. Positions of the Parties

1. Agency

The Agency contends that the provision is outside the duty to bargain because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. According to the Agency, the provision would eliminate management's discretion to determine whether to grant leave or whether an employee's presence is required to accomplish necessary work.

2. Union

The Union relies on the Authority's decision in National Federation of Federal Employees, Local 1994 and Military Entrance Processing Station, Boston, Massachusetts, 27 FLRA 968 (1987) (Military Entrance Processing Station). According to the Union, the Authority found negotiable in that case a provision that is "more generous to affected employees" than this provision. Response at 32. The Union also claims that the cases relied on by the Agency to support its position do not apply because they concern provisions related to the granting of administrative leave for specific purposes and not to the health and safety issues referenced by this provision.

B. Analysis and Conclusions

1. Meaning of the Provision

This provision would require the Agency to grant administrative leave to employees when conditions are unsafe or unhealthful and alternative work stations cannot be provided. The express language of this provision does not establish who--management or the employee--would determine when physical conditions at an employee's work station endanger the safety or health of that employee. The Agency contends, and the Union does not disagree, that the provision would divest management of the discretion to determine whether to grant leave. Although the Union quotes Military Entrance Processing Station, in which the Authority found that the agency retained the discretion to grant employees excused absences, the Union does not indicate that this provision is intended to give the Agency the same discretion as in Military Entrance Processing Station.(19) Under these circumstances, we construe the provision as allowing employees to determine when physical conditions at their work stations would endanger their safety or health.

2. The Provision Is Contrary to Law

The Authority has held that provisions concerning the use of administrative leave directly interfere with the right to assign work under section 7106(a)(2)(B) of the Statute if they eliminate management's discretion to determine whether an employee is to remain on duty to perform necessary work. National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 43 (1991), aff'd in part, vacated in part and remanded as to other matters, IRS, Chief Counsel, 960 F.2d at 1068. In this case, based on our construction of the provision, as explained above, employees could determine whether the conditions that exist at their work stations are unsafe or unhealthful. As such, employees could determine the circumstances under which the Agency would have to grant administrative leave. As the provision fails to preserve management's discretion to decide whether an employee's absence will conflict with the accomplishment of necessary work, it impermissibly affects management's right to assign work under section 7106(a)(2)(B) of the Statute. Contrary to the Union's claim, the fact that this provision is concerned with employee safety and health does not eliminate the effect on management's right to assign work. E.g., National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia, 49 FLRA 874 (1994) (Provision 6).

The Union's reliance on Military Entrance Processing Station does not compel a different result. Provision 3 in that case required the agency to assign work to employees in a safe and healthy area, if "conditions" could not be corrected immediately, or to excuse employees without charge to leave until the condition was corrected. The Authority adopted the Union's explanation that the provision applied to emergency situations where the continued presence of employees at their normal work places would place them in imminent danger. The Authority found that the provision was comparable in effect to a proposal found to be within the duty to bargain in American Federation of Government Employees, AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76, 91 (1983) (Proposal 37) (VA, San Antonio), which required employees to return to their worksite during a smoke notification or fire alarm unless that was the location of the emergency. Although it is not clear in Military Processing Entrance Station and VA, San Antonio whether the emergency situations that existed were declared by management, nothing in those decisions compels a finding that the provision here would permit management to determine that the work environment is unsafe or unhealthful. Instead, this provision could operate whenever an employee, in his or her own view, believes that there is an unsafe or unhealthful work environment. As such, it would allow employees to determine whether or not to perform work.

In sum, we conclude that this provision impermissibly affects management's right to assign work under section 7106(a)(2)(B) of the Statute. As there is no cognizable assertion that the provision is a negotiable procedure or appropriate arrangement, we conclude that the Agency head properly disapproved it.

XII. Article 15 (Overtime), Section 4 (20)

Within the above criteria, overtime shall be assigned uniformly within any Law Office or other organizational unit for which overtime is authorized. "Uniformly" means that whenever practicable all qualified employees will be trained prior to the beginning of overtime, if training is necessary for the specific overtime project as distinguished from regular training on the job and given the opportunity to begin overtime work on the same date. Complaints or disagreements concerning overtime shall be processed in accordance with the negotiated grievance procedure.

A. Positions of the Parties

1. Agency

The Agency contends that the provision interferes with its right to assign work under section 7106(a)(2)(B) of the Statute by requiring it to provide training to employees. The Agency argues that when training is necessary for an overtime project, this provision would require that all qualified employees be provided training prior to the commencement of overtime. According to the Agency, even if some employees had already received the necessary training to perform the overtime work, the provision would preclude management from assigning overtime to those employees. The Agency maintains that the provision is not rendered negotiable by limiting the training requirement to qualified employees.

2. Union

The Union contends that the provision would not require the Agency to provide training in all circumstances because the provision states that qualified employees will be trained "whenever practicable." According to the Union, the provision merely encourages the Agency to provide training to employees who otherwise would not be eligible for overtime.

B. Analysis and Conclusions

1. Meaning of the Provision

This provision is part of a contract article involving overtime. The provision states that, "whenever practicable," qualified employees will be trained prior to the commencement of overtime. Although the Union explains that the provision would not require management to provide training in all circumstances, neither that explanation nor the wording of the provision defines what the quoted term means. It is unnecessary for us to define it, however, because it is clear that, under any definition, the provision would obligate management to provide training in some circumstances. Thus, for at least some employees, Article 15, Section 4 conditions the assignment of overtime on the assignment of training.

2. The Provision Is Contrary to Law

It is well established that the right to assign work includes the right to train, or not to train, employees. E.g., American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic, Washington, D.C., 39 FLRA 557, 560 (1991). The right to assign work also includes the right to assign overtime and to determine when the overtime will be performed. E.g., American Federation of Government Employees, Local 3157 and U.S. Department of Agriculture, Federal Grain Inspection Service, 44 FLRA 1570, 1596 (1992) (Proposal 5). This provision affects management's right to assign work because, based on our construction above, it would require the Agency to provide training to some employees before the employees could be assigned overtime duties.

As this provision impermissibly affects management's right to assign work, and there is no cognizable assertion that the provision is a negotiable procedure or appropriate arrangement, the Agency head properly disapproved it.

XIII. Article 18 (Leave), Section 1(G) (21)

Where the Office has reasonable ground to believe that an employee has abused sick leave, a written warning may be issued informing the employee that if the described abuse continues, sick leave restriction may be imposed. If subsequently imposed, another written notice will be provided explaining that, for a stated period, but not to exceed 6 months, request for approval of sick leave must be accompanied by a medical certificate. At the end of the stated period, the Office shall review the employee's situation and shall give the employee notice of recession [sic] or renewal of the restriction due to continued abuse.

A. Positions of the Parties

1. Agency

The Agency contends that the provision interferes with the right to discipline under section 7106(a)(2)(A) of the Statute because it would require management to provide an employee with a written warning prior to placing the employee on sick leave restriction. In support, the Agency cites National Association of Government Employees, Local R5-82 and U.S. Department of the Navy, Navy Exchange, Naval Air Station, Jacksonville, Florida, 43 FLRA 25, 26-29 (1991) (Naval Air Station).

2. Union

The Union claims that the provision does not require management to provide an employee with a written warning before placing the employee on sick leave restriction. Rather, the Union contends that the provision gives the Agency discretion to take such action. The Union asserts that the term "may" is permissive. As such, the Union claims that the provision is distinguishable from provisions found nonnegotiable because they mandated the issuance of a written warning prior to the imposition of sick leave restriction.

B. Analysis and Conclusions

1. Meaning of the Provision

This provision permits, but does not require, the furnishing of a written warning to an employee who is suspected of abusing sick leave. The Union's explanation that the provision would not require the Agency to issue a written warning prior to placing an employee on sick leave restriction is consistent with the wording of the provision. Therefore, we adopt it. Fort McPherson, 51 FLRA at 138-39.

2. The Provision Is Not Contrary to Law

The Authority previously has found that provisions precluding an agency from imposing sick leave restrictions affect management's right to discipline under section 7106(a)(2)(A). E.g., Naval Air Station, 43 FLRA at 28. Consistent with the interpretation of Article 18, Section 1(G) stated above, by allowing the Agency, in its discretion, to issue a warning before placing an employee on sick leave restriction, the provision does not affect the Agency's ability to discipline employees in any way. Thus, the provision does not prohibit the Agency from placing an employee who is suspected of abusing sick leave on sick leave restriction immediately without a written warning. Accordingly, we find that the disputed portion of the provision does not affect management's right to discipline under section 7106(a)(2)(A) of the Statute.

The Agency's reliance on Naval Air Station is misplaced. The provision in that case required management to provide oral and written warnings before placing an employee suspected of abusing sick leave on leave restriction. The provision was found to directly interfere with management's right to discipline. As noted, the provision here does not restrict management's right to discipline. Accordingly, it is not contrary to law.

XIV. Article 18 (Leave), Section 1(H)

H. Requests for advanced sick leave will normally be granted in accordance with governing regulations when all of the following conditions are met:

1. the employee is eligible to earn sick leave;

2. the employee's request does not exceed 240 hours, or for temporary employees only the amount to be earned during the period of temporary employment if appropriate;

3. there is no reason to believe the employee will not return to work after having used the leave, and the employee has sufficient funds in his or her retirement account or any other source of monies owed to the employee by the Government to reimburse the Employer for the advance, should the employee not return to work;

4. the employee has provided acceptable medical documentation of the need for advanced sick leave; and

5. the employee is not subject to leave restriction.

A. Positions of the Parties

1. Agency

The Agency contends that this provision interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute because it would require the Agency "to identify some type of 'abnormal situation'" in the event that the Agency refuses to grant a request for advanced sick leave when an employee meets the criteria described in the provision. Statement of Position at 16. The Agency argues that the provision would create an entitlement to advanced sick leave for some employees without providing for the consideration of staffing needs or workload requirements.

2. Union

The Union states that the provision does not interfere with management's right to assign work and that it is intended to be applied in accordance with governing regulations. The Union claims that the provision would not obligate or direct management to perform any particular action and that it is consistent with Authority precedent in Customs Service, 46 FLRA 696 (Provision 6) and National Association of Government Employees, Local R12-29 and U.S. Department of the Navy, Naval Facilities Contracts Training Center, Construction Battalion Center, Port Hueneme, California, 43 FLRA 810 (1991) (Proposal 2) (Port Hueneme). The Union further contends that the provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and that it has a "minimal impact on management's right to assign work." Union's Response at 42. The Union explains that advanced sick leave is sought by an employee "when an employee has exhausted his or her current sick leave balance and anticipates the need for additional sick leave." Union's Supplemental Brief at 7. According to the Union, in order for employees to plan necessary medical procedures in advance and "maintain their health," they must be able to request and receive advanced sick leave. Union's Brief at 41. The Union claims that, without this opportunity, employees could suffer severe medical hardship. The Union adds that the provision contains safeguards to protect against the arbitrary use or abuse of advanced sick leave by employees.

B. Analysis and Conclusions

1. Meaning of the Provision

This provision requires the granting of advanced sick leave under prescribed circumstances. The Union explains that advanced sick leave refers to leave that employees may request and use if they have exhausted their accrued sick leave. This explanation is consistent with the wording of the provision and we adopt it. Laurel Bay, 51 FLRA at 737. As such, this provision would allow employees to use sick leave that they have not yet earned. We construe the provision to apply when an employee requests an advance of sick leave for a specific purpose but has no accrued sick leave available for use.

2. The Provision Is Not Contrary to Law

a. The Provision Affects the Right to Assign Work

Proposals that require agencies to grant sick leave or advanced sick leave to employees, including proposals that condition the grant of leave on compliance with Government-wide regulations, have been held to directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. E.g., Army Information Systems Command, 42 FLRA at 1127; National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 680 (1991) (Department of Memorial Affairs). As the provision here would require the Agency normally to grant requests for advanced sick leave if employees meet certain conditions, the provision affects the exercise of management's right to assign work. Therefore, contrary to the Union's claim, this provision is unlike Provision 6 in Customs Service and Proposal 2 in Port Hueneme, which merely required each agency "to consider" certain actions but did not impose a substantive limitation on management's right to assign work. Use of the term "normally" does not warrant a different result because that term imposes a substantive limitation on the Agency's right to assign work. E.g., Army Information Systems Command, 42 FLRA at 1127 (proposal that management ordinarily will approve employees' requests to use and be advanced sick leave found to directly interfere with management's right to assign work). See also Part XVI, infra, discussing a similar limitation on the right to assign work.

b. The Provision Is an Appropriate Arrangement

Applying the first prong of the KANG analysis, the Union has established that the provision is intended as an arrangement for employees who are adversely affected by the exercise of management's right to assign work.

It is undisputed that management has the ability to grant requests for advanced sick leave. Decisions as to whether to grant such a request involve an exercise of the right to assign work because they determine whether or not an employee may be absent from duty. When management decides that an employee may not be absent from duty and assigns work to that employee, management has effectively denied the advanced sick leave request. The Union identifies essentially two adverse effects on employees who have no accrued sick leave balances that would result from management's decision to assign work to employees who otherwise would be absent from duty: (1) the inability of employees to maintain their health, with possibly serious repercussions if they are unable to take sick leave or have access to the health care system; and (2) the inability to plan necessary medical procedures in advance. Insofar as these adverse effects flow from the exercise of a management right, Article 18, Section 1(H) is distinguishable from the provisions in IRS, Chief Counsel, 960 F.2d 1068, and its progeny, in which there was no evidence that the claimed adverse effects flowed from the exercise of a management right. E.g., Federal Correctional Institution, 48 FLRA at 230-31.

We also find that the provision is tailored, consistent with the KANG standard. The provision addresses those employees who have no accrued sick leave available and who would be required to remain on duty and perform work, as assigned by management, rather than attending to their medical needs.

As to the appropriateness prong of the KANG analysis, we find, on balance, that the provision is appropriate because it does not excessively interfere with management's right to assign work.(22) First, the benefits that would be afforded to employees under the provision are significant. The provision would give employees who have exhausted their sick leave balances, and who have a legitimate need to be on sick leave, the assurance that up to 30 days of sick leave would be available for their use at the time they need such leave. As such, employees would be able to plan and schedule medical appointments and otherwise maintain their health. In addition, employees would not be placed in the position of having to obtain approval for some other type of leave, such as leave without pay or annual leave, and could thereby avoid incurring the financial detriment and other consequences that would flow from the use of such other leave.

Although the Agency contends that the provision would require management to grant advanced sick leave without regard to staffing needs and workload requirements, we find that the impact on the right to assign work is minimal. Employees must satisfy a number of conditions that are specified in the provision before management can be required to grant advanced sick leave. The provision preserves management's ability to refuse a request for such leave if, for example, a requesting employee has not supplied sufficient medical documentation of the need for advanced sick leave or if management has reason to believe that an employee will abuse a grant of advanced sick leave or not return to work after having used the leave. The intrusion on management's right is further limited by the fact that, where an employee requests advanced sick leave before the employee wishes to use that leave, management could prepare for the employee's absence and lessen the impact on workload considerations.

Accordingly, we conclude that this provision is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

XV. Article 18 (Leave), Section 3(A) (23)

In accordance with Federal Personnel Manual Chapter 630, a female employee may be absent on leave for maternity purposes. The length of such absence shall be determined by the employee, her physician and her supervisor. She may use sick leave, annual leave or leave without pay to the extent that she has available annual and sick leave time, provided however, that requests for advanced sick leave, shall be treated by the Office the same as any other available annual leave time. Any absence in excess of available annual or sick leave time will be recorded and treated as leave without pay.

A. Positions of the Parties

1. Agency

The Agency objects only to that portion of the provision that provides for the use of advanced sick leave. It makes two arguments that are predicated on law and regulation. There is no claimed effect on the exercise of a management right. First, the Agency contends that the provision is contrary to 5 C.F.R. § 630.403, which requires that "[a]n agency may grant sick leave only when supported by evidence administratively acceptable." Second, the Agency argues that the provision is contrary to 5 U.S.C. § 6307(c), which states, in part, that a "maximum of 30 days sick leave with pay may be advanced for serious disability or ailment[.]"(24)

2. Union

The Union explains, consistent with Article 18, Section 1(H) discussed above, that requests for advanced sick leave would be limited to 240 hours (i.e., 30 days) and would have to be accompanied by acceptable medical documentation of the need for such leave. The Union also contends that the parties are required to follow applicable statutes and regulations by a different provision of the agreement that is not in dispute. The Union also states that the Authority has found a comparable provision to be within the duty to bargain, citing National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491 (1987) (Provision 13).

B. Analysis and Conclusions

1. Meaning of the Provision

As relevant here, the disputed portion of this provision relates to the availability of advanced sick leave for maternity purposes. The Union explains that this provision would authorize 30 days of advanced sick leave for such purposes and would require acceptable medical documentation in connection with requests for advanced sick leave. As this explanation is consistent with the wording of the provision, we adopt it. Laurel Bay, 51 FLRA at 737. In so doing, we note that the Union has not explained how, under the wording of the provision, requests for advanced sick leave are to be treated "as any other available annual leave time." However, we find that it is unnecessary to resolve this uncertainty. First, the Agency makes no arguments concerning this portion of the provision. Indeed, the Agency's arguments focus on statutory and regulatory requirements governing sick, not annual, leave. Second, nothing in the provision addresses management's ability to impose requirements attendant to the granting of annual leave.

2. The Provision Is Not Contrary to Law

The Agency claims that this provision is contrary to law on two narrow grounds: (1) the provision does not limit to 30 days the amount of advanced sick leave available; and (2) the provision does not require the submission of evidence to support such a sick leave request. We reject these contentions.

First, 5 U.S.C. § 6307(d) provides, in relevant part, that "[w]hen required by the exigencies of the situation, a maximum of 30 days sick leave with pay may be advanced for serious disability or ailment[.]"(25) Given the Union's explanation that requests for advanced sick leave would be limited to 30 days, the provision is consistent with 5 U.S.C. § 6307(d).

Second, 5 C.F.R. § 630.403 provides that an agency may grant sick leave only when supported by administratively acceptable evidence. Given the Union's explanation that requests for advanced sick leave would have to be accompanied by administratively acceptable evidence, which we have adopted, the provision is consistent with 5 C.F.R. § 630.403.

In sum, we find that the provision is not contrary to the law and regulation relied on by the Agency.

XVI. Article 19 (Career Development Details),

Section 2(A) (26)

Assignments to career development details shall be made and administered in a fair and equitable manner among every qualified employee who has expressed an interest in a detail. The Office and the Union encourage highly qualified individuals to participate in career development details. Three weeks advance notification of a career development detail shall be made by means of an announcement to all unit employees.

A. Positions of the Parties

1. Agency

The Agency contends that the provision interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency claims that the provision places a substantive limitation on the exercise of management's right to assign work because it would enable arbitrators to substitute their subjective judgment for that of the Agency. In support, the Agency relies on Customs Service, 46 FLRA at 707-09.

2. Union

The Union contends that the provision does not interfere with management's right to assign work. The Union also contends that in Customs Service the Authority found that the possibility that an arbitrator's judgment may be substituted for that of an agency was not a basis for precluding negotiations over a provision. In addition, the Union claims that the Authority has found that provisions containing the phrase "fair and equitable" are negotiable. The Union explains that the use of such a phrase is intended to ensure that assignments to career development details are not made on the basis of favoritism, nepotism, illegal discrimination, or other similar grounds. The Union maintains that the provision addresses the manner in which the Agency's program is applied and not the establishment of the elements of the program.

The Union further asserts that the provision is an appropriate arrangement under section 7106(b)(3) of the Statute. According to the Union, the provision specifies that only qualified employees are eligible to participate in career development details. The Union adds that employees "who are unfairly or inequitably not chosen will very likely suffer in their opportunities for career advancement and, therefore, in pay and choice of jobs." Union's Response at 46. The Union also notes that selection for career development details is beyond the control of the employees.

B. Analysis and Conclusions

1. Meaning of the Provision

The disputed portion of the provision would require the Agency to assign and administer career development details in a fair and equitable manner among every qualified employee who has expressed an interest in a detail.(27)

2. The Provision Is Contrary to Law

a. The Provision Affects the Right to Assign Work

The right to assign work includes, among other things, the right to decide whether employees will be detailed to perform various work assignments. E.g., Federal Professional Nurses Association, Local 2707 and U.S. Department of Health and Human Services, Division of Federal Employee Occupational Health, Region III, 43 FLRA 385, 392-93 (1991). Provisions that restrict the range of management action under section 7106 of the Statute constitute limitations on the exercise of that right and for that reason have been held to directly interfere with the exercise of the right. Customs Service, 46 FLRA at 718-19. The Authority has held that terms such as "fair and equitable," "equitable," and "equitably," when used in proposals that govern the exercise of a management right, constitute substantive limitations on the exercise of that right. E.g., American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston Regional Office, 48 FLRA 232, 234 (1993). In this case, because the provision would require the Agency to assign career development details in a fair and equitable manner, it imposes a substantive restriction on the Agency's right to assign work. Accordingly, we conclude that this provision affects management's right to assign work under section 7106(a)(2)(B) of the Statute. See also Part XIV, supra, discussing a similar limitation on the exercise of the right to assign work.

The fact that assignments would be made among qualified employees does not alter this result in view of the additional requirement in the provision that assignments be made from among employees who had expressed an interest in a detail. Even assuming that management could unilaterally determine whether employees were qualified, management would be unable to assign an employee to a career development detail unless that employee had expressed an interest in such an assignment. This limitation on management's ability to assign an employee to perform the duties associated with a detail affects management's right to assign work.

b. The Provision Is Not an Appropriate Arrangement

As stated earlier, see Part III.B.2.b., a provision will not constitute an arrangement within the meaning of section 7106(b)(3) of the Statute if the adverse effects it seeks to mitigate do not flow from the exercise of a management right. This is the view espoused by the D.C. Circuit in IRS, Chief Counsel, 960 F.2d 1068. See also the decision and order on remand in National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 45 FLRA 1256, 1259 (1992). Neither of the parties disputes the application of that precedent here. We find, consistent with the decisions that have applied this doctrine, that Article 19, Section 2(A) is not an arrangement.

In IRS, Chief Counsel, the court rejected the Authority's finding that a provision was an arrangement for employees adversely affected by management's right to assign employees. The provision would have required supervisors to refrain from rotating or scheduling assignments to avoid compensating employees who, consistent with a different provision of the agreement, were entitled to the pay of a higher-level position if they were detailed for at least one pay period. The court noted the absence of any contention "that a temporary assignment to a higher-level position itself has an adverse effect on employees." 960 F.2d at 1073. The court determined that the adverse effect the Authority identified was "evidently nothing more than the denial of a benefit . . . that the existing contract does not provide and that the union wishes to obtain." Id. The court remanded the case to the Authority essentially for the purpose of assessing how the provision constituted an arrangement. In its remand decision, the Authority found that the provision was "expressly and solely" directed at preventing the curtailment of details to avoid the negotiated requirement for higher pay and, as such, that it did not constitute an arrangement. 45 FLRA at 1258.

In this case, the Union states that if employees are not chosen for career development details based on unfair or inequitable reasons, they are likely to suffer in their "opportunities for career advancement and, therefore, in pay and choice of jobs." Union's Response at 46. The only reference in the record before us to the existence of career development details is that which appears in Article 19, Section 1, which was not disapproved.(28) There is no evidence or argument that management has previously utilized career development details.(29) We find that the Union has failed to establish that the adverse effects it has identified flow from the exercise of a management right. The only adverse effects that are identified, namely, the potential for lost or diminished job opportunities and pay, would flow from management's failure to adhere to the terms of the provision.

In material respects, this provision is comparable to the provision discussed above in IRS, Chief Counsel. In both cases, the disputed provisions essentially sought to ensure full compliance with other, non-disputed portions of the same provisions. Here, as there, it is management's refusal to abide by a provision's terms, as distinct from the exercise of a management right, that gives rise to the adverse effects. See also Federal Correctional Institution, 48 FLRA at 230-31.

In sum, we find that Article 19, Section 2(A) does not constitute an arrangement under section 7106(b)(3). In view of this result, we need not address whether the provision is "appropriate" consistent with that prong of the KANG standard.

XVII. Article 28 (Automation), Section 5 (30)

Training may be provided by the Office when the Office determines that such training is required. The Office will provide adequate instruction and guidance on any automated system before the use of any system is made mandatory. Requests for additional training made by the Union or individual employees will be given due consideration.

A. Positions of the Parties

1. Agency

The Agency argues that the disputed portion of this provision would infringe on management's right to assign work because it would require the Agency to provide training to employees prior to assigning them duties on automated systems and would preclude the assignment of such duties until training is approved. The Agency maintains that the Authority has held that provisions that require management to provide training in order for employees to perform new tasks are nonnegotiable. The Agency also explains that the term "adequate" is fact-sensitive and that the Authority has found such qualifying terms to impose substantive conditions on the exercise of management's rights. The Agency further states that the phrase "made mandatory" refers to a system that employees would be required to use.

2. Union

The Union asserts that Article 28, Section 5 is an appropriate arrangement under section 7106(b)(3) of the Statute. According to the Union, the provision "is directly linked to and [sic] actual exercise of management rights associated with the introduction of new equipment and operational procedures. It would apply only in the event that these rights were exercised." Union's Response at 52. The Union explains that the provision is designed for employees who are adversely affected by the Agency's decision to introduce new equipment and procedures and that training would be provided "to all employees who use the automated system prior to making the use of the system mandatory." Union's Supplemental Brief at 7. According to the Union, the provision is similar to a proposal that was found negotiable in American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587, 1603-05 (1987) (Marine Corps Logistics Base). The Union explains that reasonably foreseeable adverse effects could occur to both the Agency and employees who are not trained in the new automated system. The Union states that untrained employees would be unproductive and that their performance and evaluations would be severely affected. The Union further contends that the provision does not excessively interfere with management's right to assign work because the nature of the training required by the provision is linked to the change in the work requirements and, further, that the provision does not dictate either the type of training that will be given or when it will be given. The Union states that the "adequacy of training would depend on the nature and complexity of the automated system." Union's Supplemental Brief at 7.

B. Analysis and Conclusions

1. Meaning of the Provision

By its express terms, the portion of the provision that is in dispute would require that adequate instruction and guidance be provided on automated systems before their use is made mandatory. The parties have expressed a common understanding that the provision would require the Agency to provide training before employees are required to use the systems. Our decision is based on this common understanding as to how the provision is intended to operate. In addition, the Union's explanation that the provision would apply to all employees who use automated systems is consistent with the wording of the provision and we adopt it. Laurel Bay, 51 FLRA at 737.

2. The Provision Is Contrary to Law

a. The Provision Affects the Right to Assign Work

This provision affects management's right to assign work under section 7106(a)(2)(B) because it would prevent management from assigning duties involving the use of an automated system until training is provided to all employees. The provision is comparable to a proposal in National Federation of Federal Employees, Local 29 and U.S. Department of the Army, Engineer District, Kansas City, Missouri, 45 FLRA 603, 615-17 (1992), that was found to be outside the duty to bargain because it conditioned management's ability to assign work on the completion of appropriate training.

b. The Provision Is Not an Appropriate Arrangement

Under the portion of the KANG standard that addresses whether a provision is an arrangement, the Union must establish that the provision addresses the adverse effects flowing from the exercise of a management right and that it is sufficiently tailored. In this connection, the Union claims, and we find, that this provision is intended to address the adverse effects on employees flowing from the exercise of management's assignment of work. Specifically, the Union states that employee productivity and performance evaluation could be negatively affected as a consequence of the lack of training.

However, we find that the Union has failed to establish that the provision is sufficiently tailored. While it is possible that some employees would experience the adverse effect the Union identifies, the Union has not demonstrated that all employees are likely to suffer such consequences. As the provision would apply to all employees who use automated systems, the Agency would be required to provide training even for those employees who do not need it. In finding that the provision is not tailored, we note that we have not been presented with a situation where it is impossible to determine reliably, in advance, which employees are likely to suffer adverse consequences. In view of this, the Union could have limited the reach of the provision to those employees who needed training or whose productivity and performance foreseeably could be harmed by a lack of training.

The Union's reliance on Marine Corps Logistics Base is unavailing. The Authority found that the provision in that case required that training be given "only where there is a need for it, not in all circumstances without regard to its relevance or necessity." 29 FLRA at 1605. Because the provision here is not so "tailored," it is distinguishable.

As the provision does not constitute an arrangement under section 7106(b)(3) of the Statute, we need not address whether the provision is "appropriate," consistent with that prong of the KANG standard. In sum, we find that this provision is contrary to law and that the Agency head properly disapproved it.

XVIII. Order (31)

The petition for review is dismissed as to Article 14, Section 2(E); Article 14, Section 12; Article 15, Section 4; Article 19, Section 2(A); and Article 28, Section 5. The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate over Proposals 1, 3, 5 and 6. Further, the Agency shall rescind its disapproval as to Article 7, Section 11; Article 35, Section 9; Article 36, Section 9; Article 12, Section 4(G); Article 12, Section 5; Article 13, Section 3(M); Article 18, Section 1(G); Article 18, Section 1(H); and Article 18, Section 3(A).(32)

APPENDIX

Article 35 - Disciplinary Actions

Section 3

In deciding what discipline is appropriate, the Office will give due consideration to the relevance of mitigating and/or aggravating circumstances. The following factors, not intended to be exhaustive or applied mechanically, outline the tolerable limits of reasonableness which will be applied to the circumstances of each case.

1. The nature or seriousness of the offense and its relation to the employee's duties;

2. The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;

3. The employee's past disciplinary record;

4. The employee's past work record, including length of service, performance, ability to relate to other employees, and dependability;

5. The effect of the offense on the employee's ability to perform at a satisfactory level and its effect on the supervisor's confidence in the employee;

6. Consistency of the penalty with those imposed upon other employees for the same or similar offenses;

7. Consistency of the penalty with the applicable table of penalties;

8. The notoriety of the offense and its impact upon the reputation of the Office;

9. The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;

10. Potential for the employee's rehabilitation;

11. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, bad faith, malice or provocation on the part of others.

12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

Article 36 - Adverse Actions

Section 3

In deciding what discipline is appropriate, the Office will give due consideration to the relevance of mitigating and/or aggravating circumstances. The following factors, not intended to be exhaustive or applied mechanically, outline the tolerable limits of reasonableness which will be applied to the circumstances of each case.

1. The nature or seriousness of the offense and its relation to the employee's duties;

2. The employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;

3. The employee's past disciplinary record;

4. The employee's past work record, including length of service, performance, ability to relate to other employees, and dependability;

5. The effect of the offense on the employee's ability to perform at a satisfactory level and its effect on the supervisor's confidence in the employee;

6. Consistency of the penalty with those imposed upon other employees for the same or similar offenses;

7. Consistency of the penalty with the applicable table of penalties;

8. The notoriety of the offense and its impact upon the reputation of the Office;

9. The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;

10. Potential for the employee's rehabilitation;

11. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, bad faith, malice or provocation on the part of others;

12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.




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

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

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

3. The Authority uses the same approach for determining the meaning of proposals and provisions for purposes of ascertaining whether the former are within the duty to bargain and the latter are not contrary to law. In addition, the meanings that we adopt here for a particular provision would apply in resolving other disputes, such as arbitration proceedings, where the construction of that provision is at issue. See 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, 741-42, n.8 (1996) (Laurel Bay). For convenience, we use the terms "proposal" and "provision" interchangeably here and elsewhere in this decision where it is appropriate to do so.

4. As explained more fully in Part VII at note 14, a different standard may apply for determining whether a provision is appropriate.

5. The Authority noted that although the negotiability of the provision did not depend on finding a statutory obligation to bargain midterm, the proposal did restate the statutory obligation and was negotiable on that ground as well. 51 FLRA at 128 n.5 (citing Merit Systems Protection Board Professional Assoc. and Merit Systems Protection Board, Washington, D.C., 30 FLRA 852 (1988) (Proposal 4)).

6. Department of Energy involved unfair labor practice allegations that raised the legality of a provision imposed by the Federal Service Impasses Panel (Panel). In contrast, the case before us concerns the duty to bargain over a proposal in a negotiability proceeding. The Fourth Circuit has not applied the reasoning of DOE v. FLRA to a case not involving provisions imposed by the Panel. Such a case is currently pending before that court in U.S. Department of the Interior v. FLRA, Nos. 96-2855, 97-1135 (4th Cir., oral argument scheduled Oct. 1, 1997).

7. We acknowledge that, if review is obtained in the Fourth Circuit, that court is bound to apply the law of the circuit as established by previous panels unless that law is overturned by the court en banc or by the Supreme Court. See Busby v. Crown Supply, Inc., 896 F.2d 833, 840-41 (4th Cir. 1990). This acknowledgment differs from the Agency's contention that the Authority has conceded that it must follow Fourth Circuit precedent in any case where review might lie in the Fourth Circuit.

8. Further, as both the Agency and the Union are potentially "aggrieved" by other negotiability determinations in this multi-proposal and multi-provision case, it is by no means a certainty that the Authority's decision concerning the negotiability of this proposal will be determinative of the circuit in which judicial review is sought.

9. The Fourth Circuit itself has recognized that "the Authority is in a difficult position when the circuit courts of appeals that may review its decisions have reached differing conclusions[.]" DOE v. FLRA, 106 F.3d at 1162 n.8.

10. We do not decide what conduct, if any, might form the basis of an unfair practice allegation once the parties have agreed to bargain on the matters set forth in Section 3.

11. Proposals 5 and 6 reference, respectively, Section 3 of Articles 35 and 36, which are not in dispute. The relevant text of those sections is set forth in the Appendix to this decision.

12. The Union argues that, in light of the Authority's decision in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995), (VA Lexington), the Authority must revise its analytical framework for determining whether a proposal or provision is a procedure within the meaning of section 7106(b)(2). In that decision, the Authority addressed the relationship between sections 7106(a) and 7106(b) of the Statute in dealing with proposals that were asserted to be within the duty to bargain under section 7106(b)(1). The Authority stated that "§ 7106(b) is indisputably an exception to § 7106(a)." 51 FLRA at 392. According to the Union, "the same principle" applied to proposals encompassed by section 7106(b)(1) "must also be applied to proposals or provisions claimed to be negotiable procedures under section 7106(b)(2)." Union's Supplemental Submission at 2. While we agree with the Union that our precedent addressing section 7106(b)(2) warrants reexamination, we decline to do so in this case. In addressing the applicability of VA Lexington, the parties made no specific arguments with regard to this provision, and we do not believe there is a sufficient record in this case to undertake such a reexamination here. We will do so when the matter is clearly presented to us and there is an adequate record on which to base our adjudication. We do not wish to delay the resolution of this case by soliciting further input on this matter at this time.

13. We view the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587, 1600-02 (1987) (Provision 6) as distinguishable from Article 12, Section 4(G). In the former case, the union failed to establish that a provision requiring the selection of certain candidates referred by a rating panel established by the provision was an arrangement. The Authority found that the provision would apply without regard to whether any employee had been adversely affected by a selection action and would totally preclude the agency from making selections from other appropriate sources. In contrast, Article 12, Section 4(G) would not apply to all selection actions and would not preclude the selecting official from making a selection from any appropriate source, consistent with section 7106(a)(2)(C) of the Statute.

14. We believe, for the reasons expressed by Chair Segal in Department of Commerce, 52 FLRA at 1309-11, that the inquiry for determining whether negotiated provisions, in contrast to bargaining proposals, are appropriate may more properly involve whether the management right(s) at issue have been "abrogated," rather than the excessive interference test applied above. The abrogation inquiry would require a different assessment of the burdens that a provision would impose and, in general, could permit a different degree of interference with the exercise of management's rights. In particular, that inquiry would defer to the parties' assessment of the burdens imposed, as evidenced by their agreement to abide by the provision. We find it unnecessary to address that inquiry here, however, because we have determined that, under the excessive interference test, this provision is appropriate. As such, the judgment of the negotiating parties about the amount of interference they considered appropriate is upheld, and an application of the abrogation standard would not alter this determination.

15. As the OPM regulation does not, on its face, govern reductions-in-force, we address the applicability of that regulation only with regard to the part of the provision dealing with removals.

16. For employees who have rights to appeal separations, the Guide states in relevant part:

"Unless the employee was notified in writing BEFORE the resignation was submitted, you may NOT place on the SF 52/50, or on the employee's OPF or EPF, any information:

--regarding a proposed or pending disciplinary or adverse action[.]"

Guide, Chapter 31, 4.c.(2)(c). (Emphasis in original).

For employees who are serving in a probationary or trial period and who have no appeal rights, the Guide states:

NO agency comments or findings regarding the employee's resignation may be placed on the SF 52, SF 50, in the employee's OPF (Official Personnel Folder), or in the EPF (Employee Performance Folder).

Id. at 4.c.(1)(a). (Emphasis in original).

17. The Agency did not identify which of the 21 proposals at issue in Army Information Systems Command it was referencing. We assume that the Agency was citing to Proposal 20, as that is the only one in which there was a claimed effect on the right to discipline.

18. Only the second sentence of the provision is in dispute.

19. We treat the Union's reliance on Authority precedent differently here than we did with respect to Article 12, Section 5 because the Union relied on precedent there to explain the manner in which its provision was intended to operate. The Union did not similarly explain the application of precedent to the operation of Article 14, Section 12.

20. Only the first two sentences of this provision are in dispute.

21. Only the first sentence of this provision is in dispute.

22. We apply the excessive interference standard here for the reasons expressed in note 14, supra.

23. In response to an Authority inquiry regarding the provision's reference to the FPM, both parties agree that the FPM's abolishment has no effect on the provision.

24. Amendments to 5 U.S.C. § 6307(c) that were enacted in 1994, Pub. L. No. 103-329, redesignated subsection (c) as subsection (d) with modifications not here relevant. Our analysis refers to the current provision.

25. The Agency makes no claim that absence "for maternity purposes" is not covered by this statutory provision.

26. Only the first sentence of this provision is in dispute.

27. Other portions of Article 19 that were not disapproved by the Agency head require management to designate recurring details as career development details, identify selection factors and provide selection preference to various candidates, and specify the duration and commencement of details, among other things. Thus, management has already agreed to make assignments to details based on enumerated selection factors and to give preference to employees who have never served on details. However, there is no assertion in this case that, in evaluating the effect of Section 2(A) on the exercise of management's right to assign work, the Authority should consider either Article 19 in its entirety or any specific portions of the article that were not disapproved.

28. Article 19, Section 1 provides that:

The Office shall designate certain recurring details as "career development details." Career development details are temporary assignments of at least 90 days to a different position, with the primary purpose of providing training directly related to development of an employee's career as an Attorney Advisor. It will also provide employees an opportunity to develop their skills and interests, and to improve efficiency in administrative and technical fields so that a reservoir of developed employees will be in existence for possible selection to higher level vacancies.

Union's Response, Attachment 4 at 49.

29. As such, we do not address the extent to which the Union could have bargained over a provision similar to Article 19, Section 2(A) had there been an existing practice or agreement provision concerning career development details.

30. Only the second sentence of this provision is in dispute.

31. The issuance of our decision today brings to 28 the total number of proposals and provisions that we have resolved in this case and in Department