Patent Office, Professional Association (Union) and United States, Department of Commerce, United States Patent and Trademark Office, Arlington, Virginia (Agency)

[ v59 p331 ]

59 FLRA No. 50

PATENT OFFICE
PROFESSIONAL ASSOCIATION
(Union)

and

UNITED STATES
DEPARTMENT OF COMMERCE
UNITED STATES PATENT
AND TRADEMARK OFFICE
ARLINGTON, VIRGINIA
(Agency)

0-NG-2613

______

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

September 30, 2003

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of 12 provisions of a locally bargained agreement concerning ethics matters that was disapproved under § 7114(c) of the Statute on Agency-head review. The Agency filed a Statement of Position, the Union filed a Response, and the Agency filed a Reply to the Union's Response. [n2] 

      For the reasons that follow, we reject the Union's threshold claim that the provisions were not validly disapproved under § 7114(c) of the Statute. On the merits, we find that Provisions 1-3 and 5-12 are outside the duty to bargain. We also find that Provision 4 is within the duty to bargain and order the Agency to rescind its disapproval of the provision.               

II.    The Disputed Provisions Were Validly
        Disapproved under § 7114(c) of the Statute.

A.     Background

1.     Legal Context

      As part of the American Inventor's Protection Act of 1999, Pub. L. 106-113, 113 Stat. 1536, 1501A-572, Congress established the USPTO as an "agency" within the Department of Commerce (Department). See 35 U.S.C. § 1 et seq[n3]  Subsequent departmental orders: (1) prescribed the organizational structure of the USPTO, see Departmental Organization Order 30-3 (DOO 30-3), in particular, vesting the "powers and duties" of the USPTO in the Under Secretary of Commerce for Intellectual Property, who is also designated as the Director of the USPTO (Director); and (2) prescribed in detail the authority and functions of the Director, see Departmental Organization Order 10-14 (DOO 10-14). Specifically, DOO 10-14 stated that, under the policy direction of the Secretary of Commerce, the Director retains responsibility for, among other things, "personnel decisions and processes" and "other administrative and management functions." DOO 10-14, Section 2.09.

      The relationship between the Department and the USPTO was spelled out in further detail in a Memorandum of Understanding (MOU) between the Department and USPTO, dated March 29, 2000. The MOU specifically states that,

except as otherwise specified in this agreement, the Director shall exercise the responsibilities relating to USPTO operations and functions including:
a.     Performing the responsibilities of agency head pertaining to USPTO, including the following examples:

      . . . .

      iii. Title 5, U.S.C. (Government Organization and Employees)[.]

MOU, III.04.a.iii.

      The MOU provides that the Secretary of Commerce retained "[f]unctions, powers, duties, and responsibilities" [ v59 p332 ] concerning "[l]egal services" related to the "[r]eview of regulations," except that the "USPTO may otherwise promulgate rules relating to agency management or personnel, agency organization, agency procedures or practices, or public property, benefits, or contracts without further review[.] MOU, III.06.d.ii.C. The MOU further provides that the Secretary retained "functions, powers, duties, and responsibilities" concerning "[l]egal services" related to

All functions of the Department's Designated Agency Ethics Official (DAEO) and agency-head review of all ethics-related collective bargaining agreements or portions thereof, and any ensuing litigation due to the agency-head review, except as USPTO is authorized by statute or other authority to have its own DAEO[.]

MOU, III.06.d.v. Finally, the MOU provides that, with certain exceptions, USPTO assumes "responsibility for providing legal services related to . . . [e]mployment, labor, and personnel law" and "[n]egotiability appeals[.]" MOU, III.07.i. and j.

2.     Factual Context

      As relevant herein, the parties bargained over the Agency's proposed ethics policy for unit employees and participated in impasse procedures before a fact finder ordered by the Federal Service Impasses Panel (Panel) and before the Panel itself. The parties reached agreement on some provisions and the Panel ordered the adoption of others. The resulting agreement was disapproved by the Acting Director of the Agency, under § 7114(c) of the Statute, and the Union timely filed a petition for review with the Authority concerning the disapproved provisions.

      The Union served the Director with a copy of the petition, as required by § 2424.22(d) and 2424.2(g) of the Authority's Regulations, because it considered the Director to be the "agency head" for purposes of complying with those sections. [n4]  The Authority's Case Control Office issued a deficiency order to the Union, noting that, under § 2424.2(g), it had failed to serve the Secretary of Commerce as the "agency head."

      In response to the deficiency order, the Union filed a "Motion to make a finding that there was no Agency Head Disapproval" (Motion). Specifically, based on its interpretation of DOO 10-14 and the MOU, the Union argued that if "service upon the [Director] does not count as service upon the Agency Head, a letter of disapproval signed by the [Director] should not count as disapproval by the Agency Head." Motion at 2. Consequently, the Union maintained, because the agency head disapproval was not valid, the parties' agreement had gone into effect "by operation of law," and the Authority has "no jurisdiction" to consider the petition for review. Id. at 4.

B.     Positions of the Parties                    

1.     Department  [n5] 

      The Department claims that the Union "misconstrues" the MOU. Agency Statement of Position at 7 (Statement of Position). In this regard, the Department (citing POPA, 48 FLRA 546 (1993) (POPA I)), notes that agency heads can delegate authority, under § 7114(c) of the Statute, to approve or disapprove collective bargaining agreements to subordinate officials in the agency. According to the Department, the MOU, III.04.a.iii., "specifically delegates authority to the Director to serve as [a]gency [h]ead of the USPTO for purposes of" § 7114(c). Statement of Position at 8. The Department states that the MOU, III.06.d.v. also reserves to it the authority to provide legal services related to the agency head review of all ethics-related collective bargaining agreements, or portions thereof. The Department notes further that it retains the function of the DAEO.

      The Department contends that the function of the DAEO must be distinguished from the agency head review function and that nothing in law precludes an agency from delegating these distinct functions to different individuals. In this regard, the Department asserts that the phrase "head of the agency" as used in Office of Government Ethics (OGE) regulations does not necessarily refer to the same individual as the phrase "agency head" in § 7114(c). The Department argues that because the ethics function remained with the Department it "made sense" for it to provide "legal services for the ethics-related [a]gency [h]ead review." Statement of Position at 9. According to the Department, [ v59 p333 ] the provision of legal services to USPTO regarding ethics matters "does not transform the Department's role from that of legal counsel to the responsible [a]gency [h]ead." Id. at 10. The Department maintains that there is no support for the Union's claim that the agency head review function is a legal service within the meaning of the MOU. The Department argues that the agency head review function involves legal analysis and requires legal advice, but that such advice does not constitute the decision-making involved in approving or disapproving an agreement under § 7114(c).

2.     Union

      The Union contends that the petition for review should be dismissed because there is no agency head disapproval in this case. Citing POPA I, the Union contends that the Agency has the burden of demonstrating that agency head review authority has been delegated to the Director. In this regard, the Union concedes that the Director has independent control of, and serves as agency head with respect to, personnel matters in the USPTO. Union Response at 11. The Union also concedes that the management official who disapproved the disputed provisions in this case was the Acting Director of the USPTO. Id. at 10.

      The Union argues, however, that, in the absence of a statutory or regulatory provision establishing a DAEO within the USPTO, the MOU reserves to the Department agency head authority with respect to ethics matters. According to the Union, under the MOU, reservation to the Department of the authority to provide the USPTO with legal services regarding ethics matters involves more than providing legal advice. Rather, the Union maintains, performance of legal services as contemplated by the MOU involves the function of performing the agency head review itself. In this regard, the Union states that the "concept of providing legal services with respect to all functions of the Department's DAEO makes sense only if what is meant is that performing the functions of the DAEO is itself the legal service to be provided." Response at 15. The Union argues that the concept of providing legal services related to agency head review must be interpreted in a similar manner; that is, "the legal service to be provided is that of agency head review itself, not merely advice and counsel regarding agency head review." Id.

C.     Analysis and Conclusions

      The crux of the dispute is the meaning of the MOU between the Department and the USPTO. The Union was not a party to that agreement. Consequently, the Union's interpretation of the agreement is owed no deference. Rather, because there is no evidence that the Department and USPTO, the parties to that agreement, disagree as to the meaning of the MOU, we are governed by the interpretation set forth in the Statement of Position and Reply. See, e.g., IRS, Washington, D.C., 47 FLRA 1091, 1110 (1993) (in interpreting agreements, Authority is guided by intent of the parties).

      Moreover, because the Department and USPTO's interpretation of the MOU is reasonable, based on the wording of that agreement, we adopt that interpretation. In particular, the Department and USPTO's interpretation of the meaning of the phrase "legal services" is consistent with the usual understanding of such a phrase. That is, the phrase connotes the provision of legal advice to, and representing, a decision maker. It does not suggest the making of the decision itself. Consequently, the Union has failed to demonstrate that the Director of the USPTO is not the head of the agency for the purpose of reviewing collective bargaining agreements under § 7114(c) of the Statute.

      Accordingly, we deny the Union's motion concerning the validity of the agency head disapproval.

III.     Provision 1

      Section A.2.

Filers will be supplied with a blank Form 450, a blank Form 450A, as appropriate, and a self-addressed postage paid return envelope at least six (6) weeks prior to the required Form 450 return date, or, if the forms are not provided six (6) weeks prior to the return date, then filers will automatically be granted an extension of time to file so that they will have six (6) weeks to file the form.

      (Only the italicized portion is in dispute.)

A.     Positions of the Parties

1.     Agency

      The Agency contends that Provision 1 is inconsistent with 5 C.F.R. § 2634.903(d), a Government-wide regulation within the meaning of § 7117(a) of the Statute, [ v59 p334 ] because it could result in an extension of time for filing the confidential financial disclosure report that is longer than 90 days. [n6]  According to the Agency, "the regulation does not allow for extensions for more than 90 days[.]" Statement of Position at 12. In this regard, the Agency states that the Union concedes that the regulation does not "permit extensions of more than a cumulative total of 90 days." Agency Reply at 7.

2.     Union

      According to the Union, under § 2634.903, employees required to file the Confidential Financial Disclosure form, Form 450 or 450A, are required to file those forms "by October 31st for the prior year ending on the immediately preceding September 30th." Union Response at 28 (Response). As explained by the Union, "[i]n the event of delayed mailing of the forms by the Agency or other mail delivery problems," the provision "provides for an automatic extension of the filing date to insure that each employee have at least the minimum six week period for properly completing" the form. Id. at 27.

      The Union concedes that if the Agency is "very late" in providing the forms, "then the requirement to provide an additional six weeks could go beyond the ninety day limit on extensions of time." Id. at 28. The Union argues that the provision was not drafted with the assumption that the Agency would "grossly" violate its obligation to mail the forms to employees. Id. at 29. According to the Union, if the Agency complies with its obligation under the first portion of the provision to timely mail the forms, it would not "create any conditions that violate [G]overnment-wide regulations." Id. The Union asserts that a proposal is not nonnegotiable because it fails to take into account every law or regulation that might affect its application and, thus, because the provision can be implemented without violating any regulation, it should be held to be negotiable. In support, the Union cites International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2, 25 FLRA 113, 135 (1987) (Plate Printers).

      The Union requests that the italicized portion of the provision be severed from the remainder of the provision. Petition for Review at 8.

3.     OGE

      OGE maintains that, by providing for an unlimited extension for filing reports, the provision "directly contradicts" 5 C.F.R. § 2634.903(d). Amicus Brief at 35. In addition, according to OGE, because the provision applies "`automatically,'" it is inconsistent with an agency's sole and exclusive discretion to grant extensions. Id.

B.     Analysis and Conclusions

1.     Meaning of the Provision

      By its terms, when employees required to file confidential financial disclosure forms receive those forms less than six weeks before the filing deadline, Provision 1 would require the Agency automatically to grant those employees an extension so that they will have a full six weeks for filing.

2.     The Provision is inconsistent with § 2634.903(d)

      Under § 2634.903 of OGE's regulations, employees who are required to file confidential financial disclosure forms must file those forms by October 31. Agencies are permitted, under § 2634.903(d), to extend the filing deadline for a maximum of 90 days. Construed together, these provisions mean that, assuming the maximum extension is granted, the absolute filing deadline permitted under the regulations is 90 days from October 31.

      If forms were provided to employees more than 48 days after October 31, Provision 1 would afford employees a filing deadline after the absolute deadline imposed by § 2634.903(d). Specifically, the absolute deadline is 90 days after October 31. If employees were provided the forms 50 days after October 31, the six-week, or 42 day, extension would, for example, afford employees two days to file after the 90 day deadline.

      The Union concedes that, given such circumstances, the provision would afford an extension for filing that would exceed the maximum extension allowed under OGE's regulation. Proposals or provisions that exceed a statutorily or regulatorily imposed maximum are inconsistent with the statute or regulation establishing [ v59 p335 ] that ceiling. See, e.g., AFGE, Local 3157, 44 FLRA 1570, 1593-94 (1992); Federal Union of Scientists and Engineers, NAGE, 26 FLRA 284, 286 (1987).

      Citing Plate Printers, the Union argues that the provision can be implemented in a manner that is consistent with law and thus is consistent with law and regulation. The Union's argument is unavailing. The fact that the provision applies in circumstances that would not exceed the maximum does not render it consistent with § 2634.903(d). See NFFE, Local 1655, 39 FLRA 1087, 1095 (1991), enforcement denied United States Dep't of Defense, Dep't of Military Affairs v. FLRA, 964 F.2d 26 (D.C. Cir. 1992) ("The fact that the term `identifiers' might include some information the disclosure of which would be consistent with law does not make the proposal negotiable."). The open-ended and broadly worded requirements of the provision would also apply in circumstances that would result in an extension for filing in violation of the limit prescribed by § 2634.903(d) and that fact makes the provision inconsistent with the regulation. See id.

      Because Provision 1 would, under certain circumstances, guarantee employees an extension for filing that exceeds the maximum extension allowed under § 2634.903(d), it is inconsistent with § 2634.903(d), a Government-wide regulation within the meaning of § 7117(a)(1), and, accordingly, was properly disapproved, under § 7114(c) of the Statute, as not in accordance with law and regulation. [n7]  OGE's executive branch-wide regulatory authority is sufficient to establish regulations issued pursuant to that authority as Government-wide within the meaning of § 7117(a)(1). See AFGE, Local 1770, 52 FLRA 1348, 1351 (1997); AFGE, AFL-CIO, Local 1931, 32 FLRA 1023,1056-57 (1988), rev'd mem. sub nom. Dep't of the Navy, Naval Weapons Station, Concord, Calif. v. FLRA, Case No. 88-7407 (9th Cir. February 7, 1989). See also POPA, 53 FLRA 625, 629 (1997) (POPA II).

      We find that the disputed portion of the provision is inconsistent with an applicable Government-wide regulation under § 7117(a)(1). Accordingly, the disputed portion of the proposal was properly disapproved by the Agency as not in accordance with regulation under § 7114(c) of the Statute.

IV.      Provision 2

      Section D.3.

In the event the designated Agency ethics official determines that a bargaining unit employee has a conflict of interest, the Agency ethics official shall first attempt to counsel the bargaining unit employee, which will normally include providing possible remedies to the situation, including those set forth at 5 C.F.R. Part 2640.

A.      Positions of the Parties

1.     Agency

      The Agency maintains that interpreting the provision as being "effective where the employee `may have' a conflict of interest is inconsistent with the plain wording of the provision." Statement of Position at 13. Moreover, the Agency states that the Union's explanation of Provision 2 is "internally inconsistent" because it "suggests that the Agency must first `verify' that a conflict exists but is free to contact third parties first, as well." Id. In sum, the Agency claims that "the verification process contemplated by the Union could impact when the Agency is allowed to contact third parties in accordance with the provision." Id.

      According to the Agency, under 18 U.S.C. § 208, certain conflict of interest violations constitute criminal violations. [n8]  In this regard, the Agency notes that 28 U.S.C. § 535 requires an agency or the OGE to "expeditiously" report "[a]ny information, allegation, or complaint . . . relating to violations of title 18 . . . to the Attorney General." Id. at 13. 28 U.S.C. § 535. See also 5 C.F.R. § 2638.501. [n9]  The Agency claims that the provision precludes compliance with the law because it requires the Agency to first contact the employee. The Agency asserts that contacting the Attorney General first, as the Union maintains is permitted by the provision, [ v59 p336 ] would be inconsistent with the plain terms of the provision. The Agency also notes that the fact that the provision is contained in another collective bargaining agreement is not determinative of its negotiability.

2.     Union

      The Union explains that Provision 2 is intended to apply in situations where a Designated Agency Ethics Officer (DAEO) has "initially reviewed" an employee's Confidential Financial Disclosure form and made "an initial determination" that a conflict of interest may exist. Response at 30. According to the Union, the provision requires the DAEO to first contact the employee to verify if a conflict does exist and, if so, to advise the employee as to the actions that can be taken to avoid the conflict. The Union states that the portion of the provision requiring the DAEO to first counsel the employee "must be construed in the context of a process that may lead to an order to divest" and "places no restrictions on collateral actions by the Agency such as reporting a potential criminal violation to the Attorney General of the United States." Id.

      The Union asserts that the provision "is taken virtually verbatim from an agreement that the Agency has with another bargaining unit." Id. at 31.

      The Union contends that Provision 2 does not conflict with 28 U.S.C. § 535. In this regard, the Union argues that the statutory provision contemplates that information generated by lower-level officials will be reviewed by higher-level officials. The Union also claims that, although the statutory provision requires that reporting to the Attorney General be done "expeditiously," it does not require that it be done before checking the veracity of the information to be reported. According to the Union, the intent of the provision is that its requirements would themselves be carried out expeditiously.

3.     OGE

      According to OGE, expeditious reporting of criminal conflicts of interest under 18 U.S.C. § 208, as required by 28 U.S.C. § 535 and 5 C.F.R. § 2638.501(c), serves the purpose of ensuring the "proper preservation of evidence supporting any subsequent prosecution." Amicus Brief at 36. By providing that an employee be counseled before reporting such a conflict of interest, OGE contends that Provision 2 is inconsistent with the requirement for expeditious reporting.

B.     Analysis and Conclusions

1.     Meaning of the Provision

      By its plain wording, Provision 2 requires the DAEO, when that official determines that an employee has a conflict of interest, to "first" attempt to counsel the employee. Under the provision, such counseling normally will include discussion of possible remedial actions. Because the Union's interpretation is contrary to the plain wording of the provision, it is not adopted. See NTEU, 53 FLRA 539, 542-43 (1997).

2.     The Provision is inconsistent with 28 U.S.C. § 535(b) and 5 C.F.R.
        §§ 2638.501(b)(1), 501(c) and 603

      Section 208(a) of title 18 of the United States Code (§ 208(a)) provides that certain actions by specified employees of the United States Government in connection with a matter in which the employee, his or her spouse, or minor child has a "financial interest" shall be subject to the criminal penalties specified elsewhere in title 18. 18 U.S.C. § 208(a). Section 535(b) of title 28 of the United States Code (§ 535(b)) provides that any information, allegation or complaint relating to violations of, among others, § 208(a) shall be "expeditiously" reported to the Attorney General by the agency. 28 U.S.C. § 535(b).

      OGE regulations, 5 C.F.R. § 2638.501(c), preclude any agency official, including the DAEO, from making a determination that a criminal statute relating to conflicts of interest, specifically, § 208(a), "is being or has been violated." [n10]  In this regard, agency investigations are limited to violations of "ethics provisions," which are defined to exclude provisions of title 18 of the United States Code, including § 208(a). 5 C.F.R. § 2638.503(b)(1). Thus, where DAEO review of employee confidential financial disclosure forms elicits facts indicating that a criminal violation of any provision of title 18 "is occurring or has occurred," the "suspected violation" must be referred in accordance with § 535(b) and 5 C.F.R. § 2638.603. 5 C.F.R. [ v59 p337 ] § 2638.501(c). See also 5 C.F.R. § 2635.107(b). 5 C.F.R. § 2638.603 restates agencies' obligation under § 535(b) to report to the Attorney General any information, allegations or complaints relating to violations of title 18 by Government employees. Subsequent to any referral, additional proceedings may be initiated or continued at the discretion of the Director of OGE. [n11]  Depending on the nature of the conflict of interest, therefore, OGE regulations prescribe the courses of action available to the DAEO.

      By its terms, Provision 2 applies when the DAEO determines that an employee has a conflict of interest. The provision does not distinguish between conflicts of interest that constitute violations of "ethics provisions" as defined in 5 C.F.R. § 2638.501(b)(1) and conflicts of interest that constitute violations of § 208(a). Thus, the provision applies when the DAEO determines that facts exist in connection with an employee's job activity and financial interests indicating a criminal violation that must be reported to the Attorney General within the meaning of § 535(b). The provision also does not distinguish between conflicts of interest occurring at the time of the DAEO's review, or that may occur in the future, and conflicts of interest that have occurred in the past, for example, where the employee already may have taken a prohibited action in connection with a matter with respect to which the employee has the requisite financial interest.

      Further, where the DAEO determines that a criminal conflict of interest may exist, Provision 2 requires that the DAEO "first attempt to counsel" the employee. Given that determination, however, the structure of the applicable OGE regulations precludes that course of action. Sections 2638.501(b)(1), 2638.501(c), and 2638.603 provide that, in that circumstance, the DAEO's only option is to refer the matter to the Attorney General. [n12]  Where the DAEO determines that the facts related to an employee's confidential financial disclosure form establish, as relevant here, a conflict of interest in violation of § 208, the DAEO is obligated, under § 2638.603 and 2638.501(c) to refer the matter to the Attorney General and, under those provisions, as well as § 2638.501(b)(1) and 2638.503, is precluded from any further fact-finding. As such, the DAEO would be prevented from counseling an employee in that circumstance, because counseling would involve exploring the facts of the employee's situation. This conclusion is consistent with OGE's statement that the purpose of the regulation is to preserve evidence that may support prosecution. See also OGE Advisory Opinion 00 x 2 (March 21, 2000) ("[T]he role of the DAEO is not to protect agency employees from inquiries and investigations from duly authorized executive agencies and offices.").

      Because Provision 2 would require the DAEO, upon determining that facts exist supporting a conclusion that an employee is involved in a conflict of interest in violation of § 208, to "first" counsel the employee, the provision is inconsistent with 5 U.S.C. § 535 and with 5 C.F.R. § 2638.501(b)(1), 2638.501(c), and 2638.603 which, read together, require the DAEO to refer the matter to the Attorney General. Consequently, the provision is inconsistent with law and Government-wide regulation under § 7117(a)(1) and was properly disapproved as not in accordance with 5 U.S.C. § 535 and Government-wide regulation under § 7114(c) of the Statute.

      Accordingly, we find that the provision is inconsistent with applicable Government-wide regulation under § 7117(a)(1) and properly disapproved by the Agency as not in accordance with regulation under § 7114(c) of the Statute.

V.      Provision 3

      Section D.7.

(i) The Office hereby determines that the duties of patent examiner positions which are below GS-13, below GS-12 for design examiners, are positions at such a low level of responsibility that the submission of a CFD statement is [ v59 p338 ] unnecessary because of the substantial degree of supervision and review over these positions[.]
(ii) The Office hereby determines that the following POPA bargaining unit employees will not be required to file the Form 450 unless procurement activity or contract supervision requires otherwise: All classifiers regardless of grade except those who are actively examining patent applications; all librarians regardless of grade; and all employees of the Scientific Technical Information Center.

A.     Positions of the Parties

1.     Agency

      The Agency maintains that Provision 3 is inconsistent with 5 C.F.R. § 2634.905 and 906 because it deprives the head of the Agency of the sole and exclusive discretion to make the final determination as to which employees are required to file confidential disclosure reports. The Agency claims, in this regard, that 5 C.F.R. § 2634.905 and 906 are Government-wide regulations and that the provision is outside the duty to bargain because it is inconsistent with those regulations within the meaning of § 7117(a)(1). The Agency contends that, under § 7117(a)(1) of the Statute, the Government is permitted "`to pull a subject out of the bargaining process by issuing a [G]overnment-wide rule that creates a regime inconsistent with bargaining.'" Statement of Position at 16 (quoting United States Dep't of the Treasury v. FLRA, 996 F.2d 1246, 1250 (D.C. Cir. 1993) (Dep't of the Treasury)).

      In this regard, the Agency notes that OGE regulations provide for an agency to make various determinations and that OGE has interpreted its regulations as affording agencies "`sole and exclusive authority'" to make those determinations. Statement of Position at 18 (quoting OGE Memorandum DO-99-014 at 1-2 (DO-99-014)). Specifically, the Agency notes that, under § 2634.906, the procedure for review of a determination requiring that an employee must file a confidential financial report lies solely and exclusively with the agency head, and the agency head's determination is final. The Agency concludes, as a result, that determination of filing status is within its sole and exclusive discretion. The Agency contends that § 2634.906 was properly promulgated under 5 U.S.C. § 553.

      In addition, the Agency contends that, if unions are permitted under the Statute to bargain on an agency's determination as to which employees can be required to file confidential financial reports, such determinations would also be grievable, contrary to the complaint procedures established under § 2634.906. Those procedures provide that complaints concerning filing status will be decided by the agency head, "notwithstanding any other provision of law or regulation[,]" and that the decision of the agency head will be final. 5 C.F.R. § 2634.906.

      According to the Agency, the Authority has "acknowledged that . . . it must defer to an agency's reasonable interpretation of its regulations." Statement of Position at 19. Thus, the Agency claims, the Authority should defer to OGE's interpretation of its regulations in DO-99-014. In particular, the Agency argues that "an agency's interpretation is entitled to deference when the language of the regulation is ambiguous." Agency Reply at 14 (citing Auer v. Robbins, 519 U.S. 452, 461 (1997) (Auer)). The Agency asserts that because OGE regulations are ambiguous as to the nature and scope of an agency's discretion, OGE's interpretation clarifying that matter in DO-99-014 should be given deference. The Agency cites Auer and Skidmore v. Swift, 323 U.S. 134, 140 (1944) (Skidmore).

      The Agency notes that DO-99-014 was issued after the Authority's decision in POPA II, 53 FLRA 625, which also concerned OGE regulations. However, the Agency maintains that OGE issued DO-99-014 prior to the request for Panel assistance and the negotiability appeal in this case. Moreover, the Agency contends, OGE has never adopted an interpretation of its regulations different from that articulated in DO-99-014. Further, the Agency asserts, an agency's interpretation of its regulations "offered in the course of litigation is still proper as long as it reflects the `agency's fair and considered judgment on the matter.'" Statement of Position at 21 (quoting Auer, 519 U.S. at 462). [n13]  [ v59 p339 ]

2.     Union

      The Union contends that the unit contains a variety of professional employees other than patent examiners and Provision 3 is intended to exclude them from filing requirements because their level of authority is insufficient to result in conflicts of interest in the course of their duties. Specifically, the first paragraph applies to patent examiners who cannot make binding decisions without the approval of a primary or supervisory examiner. According to the Union, the second paragraph applies to unit employees in non-examining positions, other than those involved in procurement or contract supervision, because such employees provide services to other employees rather than making decisions that affect the property rights of agency customers. The Union notes that the provision does not specify particular job series.

      The Union notes that in POPA II the Authority found that a virtually identical proposal was not inconsistent with 5 C.F.R. § 2634.904(a) and 905. Specifically, the Authority found that the proposal was within the Agency's discretion under those regulations and that the Agency's discretion was not sole and exclusive. The Authority also found that § 2634.906 provided finality only as to the Agency's internal deliberations and did not preclude grievances pertaining to filing requirements.

      The Union acknowledges that, subsequent to POPA II, OGE clarified its interpretation of its regulations in DO-99-014 and amended § 2634.906 to provide for the agency head's sole and exclusive review of filing requirements. The Union contends that, in promulgating the amendment of § 2634.906, OGE waived the normal rule-making requirements of 5 U.S.C. § 553. As amended, the Union argues, § 2634.906 deprives employees of their right under the Statute to grieve determinations requiring them to file confidential financial reports. According to the Union, the Authority and the courts have not allowed agencies to deprive employees of rights under the Statute by promulgating Government-wide regulations. [n14]  The Union also maintains that OGE's amendment of § 2634.906 is ultra vires because 5 U.S.C. Appendix 4, § 402, requires the Director of OGE to consult with the Attorney General and the Office of Personnel Management (OPM) when developing rules and regulations and there is no evidence that the Attorney General or OPM were consulted prior to the amendment.

      More generally, noting that OGE is only one of four "supervising ethics offices" provided for under the ethics statute, 5 U.S.C. Appendix 4, § 109(18), the Union contends that OGE's regulations are not Government-wide regulations within the meaning of § 7117(a)(1) of the Statute. Union Response at 37. The Union argues that, when four different bodies regulate the same matter in different parts of the Government, the regulations of any one of those bodies cannot be "[G]overnment-wide" as required by § 7117(a)(1). and that, as a result, "the [§] 7117(c) bar does not apply." Response at 36. [n15]  The Union also contends that there is no compelling need for the OGE regulations.

      As to the amount of deference the Authority should give OGE's interpretation of its regulations, the Union argues that, applying "[t]he overall framework in which the courts decide how much deference to grant to an agency's interpretation of its regulations," DO-99-014 "should be given no deference." Union Response at 40, 43. Citing United States v. Mead Corporation, 533 U.S. 218 (2001), the Union contends that OGE exercised "minimal" care in adopting DO-99-014. Response at 40. Specifically, according to the Union, OGE did not, as required by 5 U.S.C. Appendix 4, § 402, consult with the Attorney General or OPM before issuing DO-99-014. Nor, the Union asserts, did it resort to notice and comment rulemaking.

      In addition, the Union contends that OGE has not demonstrated that DO-99-014 is consistent with a long-established interpretation. Rather, the Union maintains, citing Nordell v. Heckler, 749 F.2d 47, 48 (D.C. Cir. 1984), the OGE's interpretation is in response to the Authority's decision in POPA II and such "post hoc [ v59 p340 ] rationalizations are generally not given much deference." Response at 41.

      Further, the Union states that DO-99-014 "is part of a series of informational memos" and argues, citing Christensen, et al. v. Harris County, 529 U.S. 576 (2000) (Christensen), such interpretations "lack the force of law" and are only entitled to "`some deference.'" Christensen, 529 U.S. at 587 (quoting Reno v. Koray, 515 U.S. 50, 61 (1995)).

      Finally, the Union contends that OGE's explanation of the reasons for adopting DO-99-014 are unpersuasive. In particular, according to the Union, OGE claims that providing agency heads with sole and exclusive discretion to make the determinations required under its regulations will afford finality to those determinations and avoid "protracting matters that must be resolved expeditiously and uniformly." Response at 42. However, the Union asserts, this rationale could be applied "to every other agency program in the Federal Government." Id. Moreover, the Union maintains, OGE's interpretation fails to recognize that "grievances do not inherently delay compliance because employees are always required to comply pending the outcome of the grievance." Id. at 43.

3.     OGE

      OGE contends that, pursuant to their sole and exclusive discretion, only agency heads can decide filing requirements under OGE regulations. OGE states that the guidance provided Executive branch agencies in DO-99-014 is designed to: (1) clarify that the sole and exclusive discretion afforded agency heads in § 2634.906 "applied with equal force to other provisions of OGE's regulations[;]" and (2) correct the Authority's misinterpretation of § 2634.905 in POPA II. Amicus Brief at 17-18.

      As to § 2634.906, OGE states that the current regulatory provision is an "interpretive rule" which is designed to clarify the original intent of OGE's regulation in the light of the Authority's misinterpretation of the regulation in AFGE, Local 3258, 53 FLRA 1320 (1998). Amicus Brief at 9. According to OGE, by providing in its original regulation that an agency head's review of complaints concerning filing status is final, OGE intended that no other review should be available. OGE contends that the current regulation clarifies that the agency head review process is the sole and exclusive review procedure for such matters. OGE asserts that OPM is distinguishable because § 2634.906 does not restate, in regulatory form, a management right under § 7106 of the Statute. Further, citing Dep't of the Treasury, OGE maintains that as an agency provided Government-wide regulatory authority it may limit the scope of the negotiated grievance and arbitration procedures. Finally, relying on United States Dep't of Defense Education Activity, Arlington, Va., 56 FLRA 887, 892 (2000), OGE claims that the validity of the process whereby § 2634.906 was promulgated may not be challenged in a negotiability appeal.

      With regard to other provisions of OGE's regulations, referencing the legislative history of the Federal ethics statutes, OGE emphasizes that Congress intended a decentralized but uniform ethics system and assigned OGE the responsibility for ensuring compliance with Congressional intent and maintaining the uniformity of the system. See Amicus Brief at 31 (quoting S. Rep. 98-59, at 5-6 (1983)). Specifically, according to OGE, Congress recognized that the ethics system needed to address the particular needs of individual agencies, and thus provided for agency flexibility; but Congress also intended that Federal ethics policy be consistent and tasked OGE with ensuring that consistency. See Amicus Brief at 32 (quoting H.R. Rep. No. 100-1017, at 18 (1988)). According to OGE, the ethics statutes provide it with "flexibility in its oversight" of agency ethics programs, empowering it to mandate "corrective action" and requiring agencies to comply. Id. at 33. OGE maintains that "[p]ermitting negotiation over ethics determinations would undermine both the uniformity and the effectiveness of the regulatory framework" that it is authorized to enforce. Id. OGE asserts that providing for the sole and exclusive discretion of agency heads to address the needs of their agencies, combined with OGE's authority to maintain a consistent and uniform system, ensures "public confidence in the Federal Government by enabling OGE and covered agencies to enforce minimum ethical standards of conduct on the part of Federal employees." Id. at 34.

      OGE also contends that: (1) it is clear "that OGE's regulations confer sole and exclusive discretion" when "the overall legal framework in which they operate" is taken into consideration; and (2) the guidance provided in DO-99-014 is "consistent with" that framework. Amicus Brief at 20-21. For example, OGE explains, because portions of its regulations implement criminal law--for example, the criminal conflict of interest provisions [ v59 p341 ] of 18 U.S.C. § 208--the "delegation of sole and exclusive authority is necessarily inherent." Id. at 21. According to OGE, the Statute does not allow collective bargaining over the contours of the criminal law. For this reason, OGE maintains, Executive Order No. 12674, § 401 (April 12, 1989), reprinted in 54 F.R. 15159 (April 14, 1989) (EO 12674), "carefully assigned determinations" under 18 U.S.C. § 208 to agency heads. Amicus Brief at 21.

      Further, OGE argues that allowing agencies to negotiate over the exercise of their discretion under OGE regulations "is likely to give rise to serious conflicts between controlling statutory provisions." Amicus Brief at 4 n.3. Specifically, "the ostensible requirement that an agency must comply with the terms of a collective bargaining agreement would bring the agency directly into conflict with the statutory authority of the Director to order mandatory corrective action when OGE determines that an ethics program is deficient." Id. According to OGE, pursuant to the Director's authority, "the agency would have to modify its ethics program. This action would not violate the agency's labor relations obligations because compliance with the Director's order would be mandatory." Id.

      Moreover, OGE maintains that Provision 3 establishes a standard for filing confidential financial reports based on grade level where OGE, in revising its regulations, intentionally severed the link between grade and filing requirements. Amicus Brief at 36 (citing 57 Fed. Reg. 11800 (April 7, 1992)). According to OGE, the focus of its current regulations is on "the functions of positions." Id. at 37. OGE maintains, in this regard, that its "regulation must, at the very least, be interpreted to preclude explicit designation of filer status based on grade[.]" Id. at 37.

      Finally, citing Dep't of the Treasury, 996 F.2d at 1250 n.5 (D.C. Cir. 1993) and AFGE, Local 1931, 32 FLRA at 1056-57, OGE claims that, notwithstanding the fact that its regulations apply only to the Executive branch of the Federal Government, its regulations are Government-wide within the meaning of § 7117(a)(1) of the Statute.

B.     Analysis and Conclusions

1.     Meaning of the Provision

      As worded, Provision 3 establishes criteria governing the Agency's exercise of its discretion under OGE regulations to determine which employees will not be required to file confidential financial disclosure forms. See Record of Post-Petition Conference at 4.

2.     Standard of Deference Applicable to OGE's Interpretation of its Regulations

      The parties dispute whether the Authority owes deference to OGE's interpretation of its regulations. As a general principle, the Authority will defer to an agency's interpretation of its own regulations unless it is plainly erroneous or inconsistent with the regulation. See United States Dep't of Transportation, FAA, 55 FLRA 797, 802 (1999) (citing Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994)). The Authority has also recognized that "interpretations that lack the force of law" do not warrant the deference afforded under Chevron U.S.A. v. National Resources Defense Council, 467 U.S. 837 (1984) (Chevron) to interpretations adopted through formal notice and comment procedures. [n16]  United States Dep't of the Air Force, 436th Airlift Wing, Dover AFB, Dover, Del., 57 FLRA 304, 307 (2001) (436th Airlift Wing) (citing Christensen), enforced Department of the Air Force, 436th Airlift Wing, Dover AFB, Dover, Del. v. FLRA, 316 F.3d 820 (D.C. Cir. 2003). See also NTEU, Chapter 41, 57 FLRA 640 (2001) (Chapter 41). Specifically, interpretations which lack the force of law, such as opinion letters, manuals, and the like, do not warrant such deference. Id. at 644.

      However, the fact that opinion letters, and other such agency issuances containing an agency's interpretations of its regulations, do not warrant Chevron deference does not "place them outside the pale of any deference whatever." United States v. Mead Corp., 533 U.S. 218, 234 (2001). Rather, "an agency's interpretation may merit some deference whatever its form, given the `specialized experience and broader investigations and information' available to the agency, and given the value of uniformity in its administrative and judicial understandings of what a national law requires[.]" Id. (quoting Skidmore, 323 U.S. at 139-40 (internal cites omitted)). Under Skidmore, the deference given to an agency's interpretation of its own regulations "will [ v59 p342 ] depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Id. at 140. The Authority has recognized, in this regard, that the deference to be given agency interpretations contained in opinion letters is dependent on whether those interpretations are "persuasive." Chapter 41, 57 FLRA at 644 (citing Pitsker v. OPM, 234 F.3d 1378 (Fed. Cir. 2000)). Moreover, the fact that OGE further explained its interpretation in the amicus brief in this case does not present a basis for withholding deference to that interpretation. See Auer, 519 U.S. at 462.

      DO-99-014 is an OGE opinion memorandum setting forth OGE's interpretation of its regulations as affording agencies sole and exclusive discretion to make the determinations thereunder. As such, assessment of whether the Authority should grant deference to DO-99-014, and the further explanation of DO-99-014 set forth in OGE's amicus brief, is controlled by Skidmore. Consistent with the framework established in Skidmore, the Authority is required to determine whether OGE's interpretation is "persuasive."

      Accordingly, we will resolve the question of deference to OGE's interpretation under the Skidmore standard.

3.     Deferral to OGE's Interpretation of its Regulations

      OGE interprets its regulations as affording agencies sole and exclusive discretion to make the determinations required thereunder so as to preclude collective bargaining over the exercise of that discretion. As outlined in its position stated above, OGE bases its interpretation primarily on its understanding of Congressional intent in establishing the ethics program for the executive branch of the Federal Government. Review of the ethics statutes and their legislative history confirms that OGE's position is consistent with, and supported by, those provisions and that history. See ACT, Mile High Chapter, 53 FLRA 1408, 1412-16 (1998) (Mile High Chapter) (where plain wording of a statute does not include phrase "notwithstanding any other provision of law," or "without regard to any other law," legislative history may nevertheless demonstrate that Congress intended agency to possess sole and exclusive discretion with respect to a particular matter).

      Under the Ethics In Government Act of 1978, P.L. 95-521, 92 Stat. 1824 (Ethics Act), the Director of OGE is empowered to give "overall direction" to the ethics programs of executive branch agencies. 5 U.S.C. App. 4, § 402(a). Included within the Director of OGE's power to give "overall direction" is, among others, the authority to: (1) develop, "in consultation with the Attorney General and [OPM]," rules and regulations to be promulgated by the President or the Director of OGE pertaining to conflicts of interest and ethics in the executive branch, and the identification and resolution of conflicts of interest, 5 U.S.C. § 402(b)(1), (2); [n17] (2) interpret "rules and regulations issued by the President or the Director of OGE governing conflict of interest and ethical problems or the filing of financial statements," 5 U.S.C. App. 4, § 402(b)(6); and (3) order "corrective action on the part of agencies and employees" as deemed necessary by the Director of OGE, 5 U.S.C. § 402(b)(9).

      Moreover, the Director of OGE is authorized, and required, to ensure that: (1) each executive branch agency has established written procedures concerning "how the agency is to collect, review, evaluate, and, if applicable, make publicly available, financial disclosure statements filed by any of its officers or employees," 5 U.S.C. App. 4, § 402(d)(1); and (2) those procedures are "in conformance with all applicable requirements, whether established by law, rule, regulation, or Executive Order." 5 U.S.C. § 402(d)(2). In exercising the authority to enforce the laws, regulations, and Executive Orders pertaining to the ethics program of the executive branch, pursuant to § 402(b)(9), the Director of OGE is authorized to "order specific corrective action on the part of an agency head based on the failure" of the agency to comply with such applicable requirements. 5 U.S.C. § 402(f)(1). See also 5 C.F.R. Part 2638, Subpart D, for regulations pertaining to OGE's authority to direct agency compliance. [n18] 

      In promulgating the Ethics Act, Congress determined that the existing executive branch ethics program under Executive Order 11222 lacked a "centralized supervisory authority" and created OGE to have "primary responsibility for implementing the financial disclosure provisions of this legislation and for [ v59 p343 ] coordinating policies and monitoring enforcement of standards of conduct laws, rules, and regulations for the executive branch." [n19]  S. Rep. No. 95-170 (1977), at 30, 46. Specifically, in this regard, the Director of OGE's "responsibility includes the development of uniform regulations governing executive branch procedures for filing financial disclosure statements, agency review of such reports, and guidelines concerning the availability of financial disclosure reports for public inspection." Id. at 146. Congress emphasized that it authorized the Director of OGE to interpret executive branch ethics laws and regulations in order to ensure "uniformity of interpretation of these laws and regulations." Id. at 147.

      In order to ensure "that the standards of conduct are uniformly and stringently enforced," Congress required the Director of OGE to use his authority to ensure that each executive agency established written procedures which set out, in detail, how its public and confidential financial disclosure systems are to be administered. H.R. Rep. No. 100-1017 (1988), at 10, 18. This requirement was designed to address the fact that the failure to maintain such written procedures had resulted in "financial disclosure systems which are administered with wide variation from agency to agency and which contain inconsistencies beyond those that simply reflect differing agency needs and missions." Id. Further, Congress required that the Director ensure that such systems are consistent "with all applicable laws, rules, regulations, and Executive orders," and, if they were not, directed that the Director of OGE "act swiftly to remedy the situation." Id. at 19.

      Addressing the relationship between OGE and executive branch agencies, Congress described the system created under the Ethics Act as a "decentralized yet coordinated ethics program." S. Rep. No. 98-59 (1983), at 5. By such description, Congress endorsed a system in which, subject to the overall direction of OGE, each agency is responsible for "establishing, maintaining, and carrying out [that] agency's ethics program." Id. In this respect, Congress intended that agencies have the flexibility to design an ethics system that fits their individual needs. See, e.g., S. Rep. No. 95-170 (1977), at 29 (among the deficiencies of the ethics program under Executive Order 11222 was agencies' failure "to tailor their regulations to individual agency and employee responsibilities.").

      However, Congress made clear that the role of executive branch agencies' responsibility to administer the ethics program within their own agencies was subject to, and limited by, the authority of OGE to ensure the uniform application of the program. [n20]  As stated in the House report accompanying the legislation:

[It is] intended that the OGE Director have the authority to order agencies and individual officers to take specific action when the Director deems it necessary. Although under the decentralized executive branch ethics system agencies have primary responsibility for ensuring compliance with applicable ethics requirements by its own employees, OGE is responsible for intervening when agencies fail to fulfill these enforcement responsibilities. . . . With respect to agencies, the Director may order an agency to take specific action to bring its ethics program into compliance with any and all applicable ethics requirements.

H.R. Rep. No. 100-1017 (1988), at 20-21.

      In prescribing the regulations governing the executive branch ethics program, OGE assigned agencies responsibility for making certain determinations in order to implement that program. The assignment of [ v59 p344 ] such responsibility to agencies is, of course, subject to OGE's authority to interpret the terms of that assignment and to require compliance with those terms. [n21]  In practice, OGE has made clear that it will restrain an agency's ability to make particular determinations when those determinations exceed the prescribed limits. For example, OGE has stated:

[I]t would seem that you construe the instructions to delegate significant discretion to reviewing officials to prescribe "the appropriate degree of disclosure" for an agency's personnel[.] [T]his is not the case. This Office deems Title II of the [Ethics Act] to impose a uniform disclosure standard for the executive branch.

OGE Advisory Opinion 87 x 9 (August 24, 1987) (Advisory Opinion 87 x 9), at 1. Further, in this same vein, OGE has stated:

It is not correct, as a matter of law, that agencies other than OGE have been granted the authority to decide what is timely under a given set of circumstances. Such determinations require the interpretation and application of a regulation promulgated by OGE, pursuant to its own statutory authorities. It is a matter of black letter law that, in construing an agency regulation, the "ultimate criterion" is the interpretation of the agency. United States v. Larionoff, 431 U.S. 864, 872 (1977). It would be strange indeed if another agency had the final authority to determine what constitutes compliance with an OGE regulation, absent some commitment of such authority to the agency by OGE. In support of this common sense proposition, the [Ethics Act] expressly states that OGE has the responsibility for "interpreting rules and regulations issued by . . . the Director governing conflict of interest and ethical problems and the filing of financial statements." 5 U.S.C. app. § 402(b)(6).

OGE Advisory Opinion 00 x 2 (March 21, 2000), at 1-2 (Advisory Opinion 00 x 2). According to OGE, therefore, executive branch agencies have no independent authority to determine the meaning of OGE regulations, but are subject to OGE's sole authority to make that determination.

      In sum, consistent with the plain terms of the Ethics Act, and its legislative history, it is clear that Congress authorized OGE to determine, consistent with law, the content of the ethics program for the executive branch and provided OGE the authority to enforce that program. Congress directed, in this regard, that OGE establish, by regulation, a uniform system of requirements governing the filing of financial disclosure statements and of criteria governing the determination of conflicts of interest, to be applied uniformly by executive branch agencies, subject to the authority of OGE to order changes in agency ethics programs which are inconsistent with those requirements and criteria. Further, Congress authorized OGE to interpret the regulations by which it establishes those requirements and criteria. Pursuant to its statutory authority, OGE exercises control over the discretion provided agencies under its regulations by interpreting and enforcing the scope of agency discretion contained in those regulations, thereby ensuring the uniform application of that discretion.

      This review of the Ethics Act and its associated legislative history demonstrates the reasonableness of OGE's conclusion in DO-99-014 as to the nature and scope of its authority. Given that conclusion, it is equally reasonable for OGE to conclude that agencies subject to its authority are not able to share the exercise of their discretion under OGE regulations. Stated differently, OGE's conclusion, in DO-99-014, that agencies possess sole and exclusive decision-making authority under those regulations is a thorough and considered interpretation of the framework created by the Ethics Act. Moreover, OGE's position is consistent with its previous interpretations of the nature and scope of its authority with respect to agency determinations under its regulations. As OGE has made clear in the interpretations of its regulations noted above, Advisory Opinions 87 x 9 and 00 x 2, it is the sole authority for the interpretation and application of those regulations and agencies are not permitted to develop and apply their own interpretations.

      Further, as OGE points out, Amicus Brief at 4 n.3, permitting collective bargaining with respect to those determinations will result in a conflict with OGE's authority to review agency ethics systems and order corrective action whenever it finds those systems are inconsistent with its regulations. Construing OGE's regulations as affording agencies sole and exclusive discretion [ v59 p345 ] to make the determinations required thereunder thus avoids a conflict between the authority of OGE under the Ethics Act and the powers of the Authority under the Statute. See, e.g., Washington Post v. Washington-Baltimore Newspaper Guild, 787 F.2d 604, 606-07 (D.C. Cir. 1986) (interpretation preferred which avoids conflict in statutory provisions).

      Finally, as interpreted by OGE, the ethics program created by Congress for the Executive branch of the Federal Government is a comprehensive, self-contained system that establishes OGE as the final authority for the promulgation, interpretation and enforcement of the ethical principles applicable therein. This system ensures a unitary and consistent treatment of ethical issues in the executive branch of the Federal Government. Permitting agencies to subject ethical matters under OGE's regulations to modifications through negotiation of collective bargaining agreement provisions regulating that discretion would undermine the consistent and uniform application of the ethical principles set forth in those regulations. See, by way of analogy, United States v. Fausto, 484 U.S. 439 (1988) (Civil Service Reform Act of 1978 creates a comprehensive, integrated system of rights and enforcement mechanisms that precludes recourse outside the parameters of the system).

      Based on the foregoing review of the Ethics Act and its associated legislative history, under the Skidmore criteria, OGE's interpretation of its regulations in DO-99-014 as affording agencies sole and exclusive discretion is persuasive and warrants deference by the Authority. Consistent with this analysis, the Authority's contrary conclusion in POPA II, 53 FLRA at 655-56, will no longer be followed.

      Turning to the remaining issues, particularly as to the procedural regularity by which OGE stated its interpretation of its regulations, the Authority has consistently held that it does not have the power to assess the validity of another agency's exercise of its statutory authority. See, e.g., United States Dep't of Defense, Dependents Schools, Bulzbach Elementary School, Bulzbach, Germany, 56 FLRA 208, 212 (2000) (citing AFGE, AFL-CIO, National Council of Grain Inspection Locals v. FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986)) (Congress did not intend for the Authority to review other agencies' regulations). As the Authority has made clear, such disputes should be resolved in another forum, in particular, a Federal district court. See, e.g., United States Dep't of Commerce, Nat'l Oceanic and Atmospheric Admin., Off. of Marine and Aviation Operations, Marine Operations Ctr., Norfolk, Va., 57 FLRA 559, 563 (2001) (citing NTEU v. Devine, 577 F. Supp. 738 (D.D.C. 1983), aff'd, 733 F.2d 114 (D.C. Cir. 1984)). For these reasons, the Authority will not address the Union's arguments concerning the procedural regularity of OGE's revision and reinterpretation of its regulations.

      Finally, contrary to the Union's argument, OGE's interpretation of its regulations in DO-99-014 is not a litigation position constituting a post-hoc rationalization of a prior OGE action. OGE was not a party to POPA II and the Authority did not request an advisory opinion from OGE as to its interpretation of the OGE regulations disputed in that case; nor did OGE request to file, or file, an amicus brief in that case. Althouogh OGE is an amicus in this case, it is not a party. Rather, DO-99-014 constituted OGE's attempt to clarify the meaning of its regulations in the face of the Authority's alleged misinterpretation of those regulations in POPA II. Consequently, this case is distinguishable from the situation involved in Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212 (1988), wherein the court held that no deference was owed to an agency's litigation position which is designed to justify a past agency action against attack. See also Skandalis v. Rowe, 14 F.3d 173, 179 (2nd Cir. 1994) (court afforded deference to agency interpretation of its own regulations set forth in amicus brief where agency was not a party to case, court requested agency brief, and interpretation consistent with agency's previous position).

      Consequently, we conclude that OGE's explanation of its interpretation of its regulations as providing agencies sole and exclusive discretion is persuasive and, therefore, that Authority deference to that interpretation is warranted.

4.     Provision 3 is Inconsistent with OGE Regulations

      Based on OGE's interpretation of its regulations as affording agencies sole and exclusive discretion to make the determinations required under those regulations, the Agency and OGE both argue that Provision 3 is inconsistent with applicable Government-wide regulations under § 7117(a)(1) and, therefore, not in accordance with regulation under § 7114(c) of the Statute. [ v59 p346 ]

      It is well-settled that where a law or regulation indicates that an agency's discretion is intended to be exercised only by an agency--referred to by the Authority as "sole and exclusive" discretion--it would be contrary to law to require that such discretion be exercised through collective bargaining. See Mile High Chapter, 53 FLRA at 1412 (citing POPA II, 53 FLRA at 648); Plate Printers, 50 FLRA at 681-82. OGE's regulations, 5 C.F.R. § 2634.904 and 905, prescribe criteria governing an agency's discretion to determine which employees are required to file confidential financial disclosure forms. Deferring to OGE's interpretation of its regulations as affording agencies sole and exclusive discretion to determine who is required to complete and submit confidential financial disclosure forms, Provision 3, by prescribing criteria governing such filing, is inconsistent with § 2634.904 and 905, which are Government-wide regulations, POPA II, 53 FLRA at 629, because it resulted from negotiation with respect to the exercise of the Agency's sole and exclusive discretion under that regulation. Accordingly, the provision is not in accordance with law within the meaning of § 7114(c) of the Statute. [n22] 

      We note again that, by establishing Government-wide regulations as a bar to inconsistent provisions, under §§ 7114(c) and 7117(a)(1), Congress authorized agencies with the requisite regulatory authority to remove subjects from the bargaining table. See IRS, 996 F.2d at 1250 (§ 7117(a)(1) exempts from the duty to bargain any proposal inconsistent with a Government-wide rule or regulation and such "exemption essentially permits the government to pull a subject out of the bargaining process by issuing a government-wide rule that creates a regime inconsistent with bargaining."). [n23] 

      Consequently, we find that the provision is inconsistent with applicable Government-wide regulations and properly disapproved by the Agency as not in accordance with regulation under § 7114(c) of the Statute.

VI. Provision 4  [n24] 

      Section D.9.

Employees should request guidance from the DAEO in writing. The written request for guidance should contain all the relevant and correct information regarding the potential conflict of interest. The DAEO will acknowledge receipt of a written request for guidance as soon as possible, usually within five (5) business days, and will, if necessary, discuss a time frame for a final written decision. Final decisions will be written upon a written request by the employee. The employee's written request and the DAEO written decision may be via e- mail, unless the employee requests a more private form of communication. The DAEO will keep records of their decisions.

Positions of the Parties

1.     Agency

      The Agency contends that the disputed portion of Provision 4 is inconsistent with 5 C.F.R. § 2635.107(b) because "the regulation requires more of the employee than the disapproved provision." Statement of Position at 23. According to the Agency, the regulatory phrase "all relevant circumstances" is broader than the phrase "regarding the potential conflict of interest" used in the provision. Agency Reply at 16.

2.     Union

      The Union claims that the disputed portion of Provision 4 establishes a procedure for "communication between employees and the designated agency ethics official." Response at 43. According to the Union, there is "no difference in substantive meaning" between the disputed portion of the provision and § 2635.107(b). In particular, the Union claims that § 2635.107(b) "does not actually require employees to make a full disclosure of all relevant circumstances, it merely provides dispensation from disciplinary action when such full disclosure is made." Id. at 44-45. The Union maintains that [ v59 p347 ] the regulation merely prescribes the penalty that employees will suffer if the information they provide the DAEO "is either incorrect or fails to contain all that is relevant[.]" Id. at 45. For the reasons stated previously, the Union maintains that § 2635.107(b) is not a Government-wide regulation and that there is no compelling need for the regulation.

3.     OGE

      According to OGE, the disputed sentence "would change the terms of [the] regulatory provision." Amicus Brief at 38. Because the "applicable standard" is set forth in the regulation, OGE contends that "the use of different language to describe the standard is inappropriate." Id. OGE asserts that a fact-finder would be prompted to find significance in the difference in language.

B.     Analysis and Conclusions

1.     Meaning of the Provision

      As worded, and agreed to by the parties, the disputed portion of Provision 4 requires an employee, when seeking guidance from the DAEO, to provide the DAEO with "all relevant and correct information" regarding potential conflict of interest. See Record of Post-Petition Conference at 4.

2.     Provision 4 is Consistent with 5 C.F.R. § 2635.107(b)

      5 C.F.R. § 2635.107(b) (§ 2635.107(b)) provides that employees who have questions concerning the application of OGE, or agency supplemental, conflict of interest regulations to their circumstances should seek advice from the DAEO or other agency ethics official. Except where the employee's conflict of interest would constitute a violation of the criminal statutes, an employee who relies in good faith on the advice of the DAEO or other ethics official would be insulated from disciplinary action for violation of such conflict of interest regulations. Immunity under § 2635.107(b), however, is contingent upon the employee making "full disclosure of all relevant circumstances."

      Under Authority precedent, where a provision establishes requirements that are different from the requirements of a Government-wide regulation, that provision is inconsistent with the regulation. See, e.g., AFGE, Local 3157, 44 FLRA 1570, 1577 (1992); NTEU, 39 FLRA 27, 35-36 (1991), enf'd in part, vacated and remanded in part United States Dep't of the Treasury, Office of Chief Counsel, IRS v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992); AFGE, AFL-CIO, Local 1931, 32 FLRA at 1057-58. Cf. POPA, 48 FLRA 546, 550 (1993) (POPA III) (provision is not inconsistent with a regulation because it incorporates the requirements of the regulation). The question presented by the disputed portion of Provision 4 is whether the requirement that employees seeking advice from the DAEO regarding a possible conflict of interest provide "all relevant and correct information" is different from the requirement for "full disclosure of all relevant circumstances" set forth in § 2635.107(b). If it is, then it could afford employees immunity from discipline in circumstances where they would not otherwise qualify for such immunity under the regulation.

      The Agency has not demonstrated that there is a meaningful distinction between the requirement, under the disputed portion of the provision, that the employee provide information regarding a potential conflict of interest and the regulatory requirement for full disclosure of the circumstances of the employee's possible conflict of interest. The employee would only be able to disclose the circumstances related to a possible conflict of interest by providing information about those circumstances. Moreover, both the disputed portion of the provision and the regulation require the employee to provide "all" the "relevant" information and there is no basis for concluding that the terms "all" and "relevant" have different meanings as used in each.

      Further, the regulatory requirement of "full disclosure" of all relevant circumstances is not distinguishable from the requirement of the provision that an employee provide all relevant information. We conclude that providing "all" relevant information is coextensive with full disclosure of that same information.

      Finally, the disputed portion of the provision requires that the information provided be not only relevant, but also be "correct." The regulation does not contain that requirement. That difference, however, does not distinguish the respective obligations. While the regulatory requirement for disclosure of all relevant circumstances could therefore embrace both "correct" and "incorrect" information, it would be anomolous for employees to be obligated to provide "incorrect" information as to the circumstances of their cases. It is more reasonable to construe the regulation, and the disputed portion of the provision also, as requiring employees to [ v59 p348 ] provide accurate information with respect to the potential conflicts of interest about which they are seeking guidance. Construed in this manner, as the Union contends, there is no substantive difference between the obligation imposed by the regulation and that created by the disputed portion of the provision.

      Where a provision establishes the same requirements as an applicable regulation, the provision is not inconsistent with that regulation. See POPA III, 48 FLRA at 550. Consequently, because the disputed portion of Provision 4 incorporates and restates the obligation imposed by § 2635.107(b), that portion of the provision is consistent with an applicable Government-wide regulation, under § 7117(a)(1), and in accordance with law and regulation, under § 7114(c) of the Statute. In this regard, OGE's concern that the difference in wording between § 2635.107(b) and the disputed portion of Provision 4 could lead a third party to interpret them differently is misplaced. It is well-settled that the interpretation of a provision adopted by the Authority in resolving negotiability issues with respect to the provision is binding in other proceedings. See ACT, Wichita Air Capitol Chapter, 56 FLRA 1027, 1029 n.7 (2000) (citing NEA, Overseas Educ. Ass'n, Laurel Bay Teachers Ass'n, 51 FLRA 733, 741-42 (1996)) (meaning Authority adopts for provision, unless modified by parties, applies in other disputes, such as arbitration proceedings, where construction of provision at issue).

      Accordingly, we find that the disputed portion of Provision 4 is consistent with § 2635.107(b) and, therefore, in accordance with law and regulation under § 7114(c) of the Statute.

VII.      Provision 5

      Section E.2.

(i) In accordance with E[1.], the office's written decision will occur only after it has been presented with recommendations from a joint labor-management committee regarding any disagreement between the examiner and the office concerning the definition of his/her technological area or a particular company's designation in a technological area. The joint labor-management committee will consist of no more than two representatives from each side. The committee will gather the information necessary to apply the standards set forth in subsections (ii) to (v) below. Past practice within the art unit will not be precedential since any one examiner may not be concerned with this issue. If the committee reaches a consensus regarding its recommendation, the recommendation will promptly be issued in writing to the Office. If no consensus is reached by the committee, two separate written recommendations will promptly be issued to the Office. In either case, the Office will then promptly issue its written decision to the examiner, in accordance with E.1. above;
(ii) When the committee considers its recommendations, the fact that a company has fewer than twelve (12) patents issued in a technological area in the most recent eight (8) years, is prima facie evidence that such company is not within that technological area;
(iii) If an examiner has not acted on any application from a company in the past two years, this will be considered prima facie evidence that the company is not in the examiner's technological area;
(iv) Prima facie evidence of an examiner's technological area will be the cases that the examiner has acted on in the past year;
(v) When making an allegation that a particular company is in the examiner's technological area, management committee members will cite at least one patent application that the examiner has acted upon in the last year or one patent application that is docketed to the examiner that will have a direct and predictable impact on the company;
(vi) In applying the standards set forth in (ii) to (v) above, it is understood that other relevant data may be considered by the committee, including SIC and/or NAICS codes, and applied in any individual case if the evidence shows that it is warranted.

A.     Positions of the Parties

1.     Agency

      The Agency notes that Provision 5 was imposed by the Panel and argues that the provision cannot "apply to the issue of the technological area of particular companies[.]" Statement of Position at 25. In addition, the Agency contends that "definitions of technological areas are critical to the determination of whether a conflict of interest exists." Agency Reply at 18 n.9. In this regard, the Agency argues that determinations as to the existence [ v59 p349 ] of a conflict of interest are "interpretations of the law." Id.

      The Agency states that "[t]he definition of a technological area is synonymous with the `docket' concept [and] [i]t was designed for the purpose of work flow management and the development of expertise by the employees." Id. at 18-19. The Agency construes the joint labor-management committee established by the provision as part of the deliberative process by which the Agency determines whether employees have a conflict of interest. The Agency contends that any determination that an employee may have a conflict of interest is a matter left to the sole and exclusive discretion of the Agency under OGE regulations. 5 C.F.R. § 2635.403. Moreover, the Agency argues that "conflicts of interest are defined by statute, not by an agency's attempt at defining an employee's or company's operations." Id. The Agency concludes that the provision is inconsistent with Government-wide regulations (citing Dep't of the Treasury).

      Further, the Agency asserts that the provision affects management's right to assign work, under § 7106(a)(2)(B), because Union participation on the joint labor-management committee that determines matters related to the technological area in which an employee works involves the Union in decisions relating to the distribution of work among its employees. In addition, because the provision requires the Agency to delay its work assignments until after the committee has made its recommendations, the provision affects management's right to assign work in this manner as well.

      The Agency maintains that the provision is not a procedure under § 7106(b)(2).

      The Agency objects to severance of the provision as requested by the Union. Specifically, the Agency notes that subsection E.2.(i). "`is essential for the negotiability of all the other subsections.'" Statement of Position at 29 (quoting Petition for Review at 13). The Agency also claims that subsections E.2.(ii). through (vi). do not present distinct legal or factual issues. According to the Agency, just as the standards by which the committee will operate are meaningless if the committee itself is nonnegotiable, the existence of a committee is "futile" if the standards are nonnegotiable. Id. at 30.

2.     Union

      According to the Union, subsection E.1. of Provision 5, which is not in dispute, requires an examiner's supervisor to provide the examiner with a definition of that examiner's technological area so that the examiner will have "a clear understanding of those areas in which a financial interest would more than likely constitute a conflict of interest." Petition for Review at 12. The Union explains that subsection E.2.(i). establishes a joint labor-management committee to provide recommendations for resolving disputes "if a supervisor unreasonably broadens the definition of an examiner's primary technological area, thereby unfairly restricting the examiner's ability to invest in any financial interest that would not constitute a conflict of interest." Id. The Union states that subsection E.2. specifies factors that constitute prima facie evidence with regard to the scope of an examiner's technological area.

      The Union contends that Provision 5 does not "intrude into management's deliberative process." Response at 50. The Union argues that the provision "will generate useful information upon which a decision" as to an examiner's technological area "may be based" and would not limit the work that could be assigned to that examiner. Id. at 49. In this regard, the Union claims that "provisions calling for joint committees whose purpose it is to gather information and make recommendations concerning conditions of employment are negotiable." Id. at 50. The Union contends that even if the decision as to whether a conflict of interest exists is made solely by the Agency, the "committee does not undercut that right." Id. at 49. Further, the Union maintains that, although the operation of the committee would delay a final decision on the examiner's complaint, the provision would not relieve examiners of their obligation to perform the duties of their positions.

      The Union requests that subsection E.2.(i) be severed from the remainder of subsection E.2. and the individual parts of subsection E.2. be severed from each other. The Union argues that while subsection E.2.(i) is essential for the negotiability of the provision, "the reverse is not true." Id. In this regard, the Union contends that the nonnegotiability of the criteria in subsection E.2. will not affect the negotiability of subsection E.1. because "the elimination of any or all of those criteria will not prevent the committee from issuing a recommendation." Id. at 52. [ v59 p350 ]

3.     OGE

      OGE maintains that the concept of "technological area" is not addressed by its regulations. However, to the extent that the term relates to determinations of conflict of interest, OGE claims that the concept, as employed in the disputed provision, is inconsistent with its regulations. OGE states that, under 5 C.F.R. § 2635.403(a), an agency may determine in advance, through supplemental regulations, that a class of interests would constitute a conflict of interest for categories of employees. OGE argues that Provision 5 is inconsistent with § 2635.403(a) because subsection E.1. and subsection E.2. "would work together to prohibit certain classes of interests in advance through a means other than the promulgation of supplemental regulations." Amicus Brief at 40.

      Specifically, OGE contends that the "practical effect" of subsection E.2., whereby examiners are influenced by the committee's recommendations, is inconsistent with § 2635.403(b) which provides that only the DAEO or delegatee, in his or her sole and exclusive discretion, will inform employees as to conflicting interests. OGE asserts that an employee's reliance on those recommendations would not protect the employee from criminal prosecution or disciplinary action "for failure to comply with an agency determination pursuant to § 2635.403(b)." Id. at 41.

B.     Analysis and Conclusions

1.      Meaning of the Provision

      Provision 5 concerns the Agency's determination of permitted or prohibited financial interests as a part of its overall determination of the framework for determining whether employees are subject to conflicts of interest in the performance of their official duties. Under Section E.1., which is not in dispute, the Agency is required to provide employees with a definition of the technological area which is their primary responsibility. Section E.2. prescribes a process and a set of criteria to be used by a joint labor-management committee for reviewing, and making recommendations concerning, the Agency's determination of the technological area within which an employee performs his or her official duties. Determination of employees' technological areas pursuant to this process will define the boundaries of the financial interests that may, or may not, be acquired or held by employees with a given set of official duties.

2.      Provision 5 is inconsistent with 5 C.F.R. § 403(b)

      Under 5 C.F.R. § 2635.401, employees may acquire and hold any financial interest that is not prohibited by 5 C.F.R. § 2635.403. Moreover, even if employees properly acquire and hold a particular financial interest, they are prohibited, under 18 U.S.C. § 208 and 5 C.F.R. § 2635.402, from participating personally and substantially in any matter in which, to their knowledge, they, or any person whose interests may be imputed to them, have a financial interest, if the matter will have a direct and predictable effect on that interest.

      Further, OGE regulations preclude employees from acquiring or holding any financial interest that they are prohibited from acquiring or holding by statute, by agency regulation, or by reason of an agency determination of substantial conflict. In this regard, an agency may, by supplemental regulation, "prohibit or restrict the acquisition or holding of a financial interest or a class of financial interests by agency employees" "based on the agency's determination that the acquisition or holding of such financial interests would cause a reasonable person to question the impartiality and objectivity with which agency programs are administered." 5 C.F.R. § 2635.403(a). An agency may also "prohibit or restrict an individual employee from acquiring or holding a financial interest or a class of financial interests based upon the agency designee's determination that the holding of such interest or interests will: (1) [r]equire the employee's disqualification from matters so central or critical to the performance of his [or her] official duties that the employee's ability to perform the duties of his position would be materially impaired; or (2) [a]dversely affect the efficient accomplishment of the agency's mission because another employee cannot be readily assigned to perform work from which the employee would be disqualified by reason of the financial interest." 5 C.F.R. § 2635.403(b).

      Clearly, as a part of applying and enforcing these regulations, an agency must make determinations as to what constitutes relevant financial interests with respect to the work performed in a given position. Generally speaking, those determinations will involve the agency in analyzing the nature and scope of the work assigned to employees' positions and using the results of that analysis to determine the nature and scope of the financial interests that may be directly and predictably [ v59 p351 ] affected by decisions made and actions taken in the course of performing the work of those positions.

      Provision 5 establishes a process and criteria the Agency must employ in determining the technological area associated with the official duties of a given position. That process and those criteria will shape the Agency's ultimate determination as to the financial interests that may or not be acquired or held by employees who perform the duties of those positions. The process is designed to function within the regulatory framework governing those determinations established in 5 C.F.R. Part 2635, Subpart D, particularly, 5 C.F.R. § 2635.402 and 403. Specifically, the process and criteria established by the provision would be required to accomplish the determinations required under 5 C.F.R. §§ 2635.402 and 403.

      However, the agency determinations required under 5 C.F.R. § 2635.403(b), as under other provisions of OGE regulations, are within the sole and exclusive discretion of the agency. See Section IV.B.3. of this decision, supra). The Authority has consistently held that it would be contrary to law to require that an agency's sole and exclusive discretion be exercised through collective bargaining. See NAGE, Local R5-136, 56 FLRA 346, 348 (2000) (Local R5-136); Mile High Chapter, 53 FLRA at 1412. See also Plate Printers, 50 FLRA at 682 n.8 (citing AFGE, Local 3295, 47 FLRA 884, 894-99 (1993), aff'd 46 F.3d 73 (D.C. Cir. 1995)) ("Where the discretion, regardless of its scope, is granted in a manner indicating that Congress intended it to be exercised only by the agency--typically referred to by the Authority as discretion which is `sole and exclusive' or `unfettered'--negotiating how the discretion is exercised would be inconsistent with law."). In this regard, if management cannot, consistent with law, be required to bargain over the exercise of its sole and exclusive discretion, it cannot legally be held to any provision that might result from such bargaining. Because Provision 5 concerns how the Agency will exercise its sole and exclusive discretion under 5 C.F.R. § 2635.403(b) to determine the financial interests that may or may not be acquired or held by employees so as to avoid conflicts of interest, it is inconsistent with law within the meaning of § 7117(a)(1) of the Statute. [n25]  See Local R5-136, Mile High Chapter. Consistent with this analysis, the Authority's decision as to Proposal 6, POPA II, 53 FLRA at 651-59, will no longer be followed.

      Further, because Provision 5 as a whole concerns the exercise of the Agency's sole and exclusive discretion under 5 C.F.R. § 2635.403(b), it is outside the duty to bargain in its entirety. Thus, it is not necessary to address the Union's request for severance. See AFGE, Local 1709, 56 FLRA 549, 552 (2000).

      Consequently, we find that Provision 5 is inconsistent with applicable Government-wide regulation under § 7117(a)(1) and properly disapproved by the Agency as not in accordance with regulation under § 7114(c) of the Statute.

VIII.      Provision 6

      Section F.1.

When a potential conflict of interest arises under E[.5.] above, the following procedure will be used:
(i) When an examiner has a compelling pre-existing financial interest that would be adversely affected by an Office-initiated change in work assignment pursuant to E[.5.] above, management shall not generally make the transfer or the change referred to above, unless there is no other qualified examiner available to do the work. The bargaining unit employee may appeal to the Office for reconsideration of the proposed change. Among other things to be considered are (1) needs of the Office, (2) expertise of the bargaining unit employee, and (3) the degree of adverse financial impact on the bargaining unit employee.
Typical examples of compelling financial interest are spousal employment, significant illiquid assets and significant interests in the business of a relative. To be considered compelling the financial interest must rise to a level analogous to the examples above.
(ii) Where an examiner has a significant pre-existing financial interest that would be adversely affected by the Office-initiated change in work assignment pursuant to E[.5.] above, the examiner may appeal to the Office for reconsideration of the proposed change. The appeal will balance the expertise of the examiners involved, [ v59 p352 ] management's needs in distributing work assignments and the degree of adverse financial impact on each examiner involved. A written decision will be rendered before the employee will be required to take any action regarding his or her financial interests.
A typical example of a significant pre-existing financial interest is an asset that exceeds 30% of the bargaining unit employee's gross annual salary, but, in accordance with the law, any amount exceeding $5,000.00 could be regarded as potentially requiring possible divestiture.

A.     Positions of the Parties

1.     Agency

      The Agency contends that Provision 6 affects management's right to assign work under § 7106(a)(2)(B) because it limits the circumstances under which the Agency can reassign an employee to different work in order to deal with a conflict of interest. The Agency also contends that the provision is inconsistent with §§ 2634.605 and 2635.403(b). Specifically, the Agency contends that the provision conflicts with its sole and exclusive authority to restrict an examiner's financial holdings when no other examiner is available to do the work. Further, the Agency maintains that the provision deprives the DAEO of his or her sole and exclusive authority to determine the remedial action to be taken to address a conflict of interest.

      Further, the Agency argues that, even if the provision is not inconsistent with OGE regulations, it does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute. In this regard, the Agency acknowledges that "some of the remedies for a conflict of interest, such as divestiture, could have a significant financial impact on the employee." Statement of Position at 36. The Agency maintains, however, that the provision substantially limits its ability to quickly reassign work when necessary and to remedy conflicts when they arise. Specifically, the Agency claims that the provision would "impermissibly restrict the pool of available personnel for certain assignments" by precluding management from requiring an examiner "to review applications that may be outside the technological area of his or her primary area of responsibility." Id. at 37. Moreover, the Agency claims that the provision would affect its ability to complete its mission effectively and efficiently because it would delay review of patent applications.

2.     Union

      The Union explains that Provision 6 applies when management "either transfers [an] employee to a new art unit and technology area or changes the definition of the examiner's present technology area resulting in a potential conflict of interest with the employee's pre-existing financial interest." Response at 53. The Union claims that the Agency characterizes the provision too broadly. According to the Union, the proposal only applies when an employee's pre-existing financial interest is compelling or significant.

      For reasons previously stated, the Union contends that DO-99-014 should not be given deference and that OGE's regulations are not Government-wide. Nevertheless, the Union contends that if the Authority resolves those issues differently, the provision would not be inconsistent with OGE regulations because it is "not a restriction on what happens after conflict of interest has been created," rather it "attempts to prevent the creation of such a conflict[.]" Id. at 56. Specifically, the Union states that the provision "is in fact a restriction upon management's assignment of work, not on management's right to determine remedial action after a conflict of interest has been created." Id.

      The Union notes that the Authority found that a substantially similar proposal was held to constitute an appropriate arrangement in POPA II. The Union characterizes the impact of the provision on management's rights as "trivial." Id. at 57. According to the Union, the situation addressed by the provision occurs "relatively rarely" and when it does, "there are several [other employees] to whom the Agency can assign the work instead." Id. In this regard, the Union points out that the Agency has provided no evidence of a situation wherein work needed to be transferred and could not be done by more than one employee. As to balancing the burden on management against the benefit afforded employees by the provision, the Union asserts that "it should be obvious that a requirement to divest financial interests that represent a substantial percentage of the employee's annual income will have a much greater impact on the employee than on the Agency." Id.

3.      OGE

      OGE maintains that the provision is inconsistent with 5 C.F.R. §§ 2634.605 and 2635.403(b) because it restricts the Agency's sole and exclusive discretion to determine appropriate remedies. [ v59 p353 ]

B.     Analysis and Conclusions

1.      The Meaning of the Provision

      Provision 6 establishes a process and criteria to be applied when management changes an employee's work assignment resulting in conflicts of interest of specified degrees of seriousness. The provision governs the Agency's decision as to how and when it will address those conflicts of interest.

2.      Provision 6 is Inconsistent with 5 C.F.R. §§ 2634.605(b) and 2635.403(b)

      Where the DAEO or his or her delegatee determines, based on an employee's confidential financial disclosure form, that the employee is not in compliance with applicable conflict of interest laws and regulations, that official will determine the remedial action that must be taken in order to bring the employee into compliance. 5 C.F.R. § 2634.605(b)(1), (4), and (5). In this regard, under 5 C.F.R. § 2634.605(b)(5), employees who are determined to have such a conflict of interest may be required, among other possible actions, to divest themselves of the conflicting interest, establish a blind trust for that interest, recuse themselves, or volunteer for transfer or reassignment. Further, as to divestiture, under 5 C.F.R. § 2635.403(b), an agency may prohibit employees from acquiring or holding financial interests that would disqualify them from performing the duties of their positions or adversely affect the accomplishment of the agency's mission because another employee cannot be reassigned to perform the work. In short, under OGE regulations, agencies have a range of options for dealing with employees' conflicts of interest.

      Provision 6 prescribes a process and criteria governing the Agency's determination of the action it will take to address an employee's conflict of interest resulting from reassignment of the employee. As such, it concerns management's choice from among the options specified in 5 C.F.R. §§ 2634.605(b) and 2635.403(b). It has been determined, however, see Section V.B.3. of this decision, supra, that the Agency has sole and exclusive discretion to make the decisions provided for under OGE regulations, including 5 C.F.R. §§ 2634.605(b) and 2635.403(b). It has also been determined that any provision resulting from bargaining over the exercise of an agency's sole and exclusive discretion under those regulations is inconsistent with applicable Government-wide regulation. See Section VII.B.2. of this decision, supra. Because Provision 6 relates to the Agency's sole and exclusive discretion under 5 C.F.R. §§ 2634.605(b) and 2635.403(b) to determine the actions it will take to address an employee's conflict of interest, it is inconsistent with those regulations. [n26]  Consistent with this analysis, the Authority's decision as to Proposal 8, POPA II, 53 FLRA at 638-43, should no longer be followed.

      Accordingly, we find that the provision is inconsistent with applicable Government-wide regulation under § 7117(a)(1) and was properly disapproved by the Agency as not in accordance with regulation under § 7114(c) of the Statute.

IX.      Provision 7

      Section F.2.

(i) In the event that an application is assigned to an examiner that is not typical of those found in the assigned technological area, recusal or waiver, at the sole discretion of management, will be the remedy for any possible conflicts of interest based on the examiner's pre-existing financial interests.
(ii) In the event temporary transfers of work create a conflict of interest based on an examiner's pre-existing financial interests, recusal or waiver, at the sole discretion of management, will be the remedy for any possible conflicts of interest based on the examiner's pre-existing financial interests.
(iii) In all other situations, the Office will normally require the examiner to divest the financial interest causing the conflict.

A.     Positions of the Parties

1.     Agency

      The Agency contends that, by precluding the Agency from requiring an employee to divest a financial interest, Provision 7 is inconsistent with 5 C.F.R. §§ 2634.605 and 2635.403(b) because it restricts the DAEO "to the specific remedies of recusal or waiver when an employee is assigned an application not typically found in his or her assigned technological area or [ v59 p354 ] other work is transferred that creates a conflict." Statement of Position at 38-39.

      The Agency notes that the Authority will not address whether a provision is an appropriate arrangement if the provision is inconsistent with a Government-wide regulation. The Agency argues in the alternative, however, that the proposal excessively interferes with management's right to assign work under § 7106(a)(2)(B) and is not within the duty to bargain under § 7106(b)(3). In this regard, the Agency states that a conflict of interest waiver is not necessarily within the discretion of the Agency (citing 18 U.S.C. § 208(b)(1)). Moreover, the Agency claims that the provision restricts its ability "to quickly reassign work when necessary." Id. at 40. Further, the Agency argues that the Union has provided no evidence that management has used minimal work reassignments to harass or retaliate against employees.

2.     Union

      According to the Union, Provision 7 is designed to address situations in which an employee is assigned "a few cases representing a temporary overload from another area or for other legitimate reasons." Response at 58.

      The Union states that Provision 7 is "substantially identical to Proposal 9" in POPA II which the Authority found to be negotiable. Id. at 59. For reasons previously stated, the Union contends that DO-99-014 should not be given deference and that OGE's regulations are not Government-wide. In any event, however, the Union contends that the provision is an appropriate arrangement. Noting supervisory testimony in a factfinding hearing in this case, the Union claims that, as a practical matter, "in situations where the assignment of a case would create a conflict of interest, management will choose instead to assign the case to another examiner for whom such an assignment would not create a conflict." Id. at 60. The Union states that both the Factfinder and the Federal Service Impasses Panel (Panel) reviewed this provision and approved its balancing of the parties' interests and argues that the Authority should not disturb the Panel's decision unless it is arbitrary or capricious or otherwise violative of the Administrative Procedure Act, 5 U.S.C. § 706.

3.     OGE

      OGE maintains that the provision is inconsistent with §§ 2634.605 and 2635.403(b) because it restricts the Agency's sole and exclusive discretion to determine appropriate remedies.

B.     Analysis and Conclusions

1.      Meaning of the Provision

      Provision 7, by its terms, prescribes the actions that management will take when a conflict of interest results from certain specific work assignment situations. In those situations, management will either accept an employee's recusal or grant a waiver of the disqualification. In other circumstances, the employees may be required to divest themselves of the conflicting financial interest.

2.     Provision 7 is Inconsistent with 5 C.F.R. §§ 2634.605(b) and 2635.403(b)

      Under 5 C.F.R. §§ 2634.605(b) and 2635.403(b), an agency has sole and exclusive discretion as to the actions that it will take to address employees' conflicts of interest. Because Provision 7 prescribes the actions that the agency will take in specific conflict of interest situations, it concerns how the agency will exercise its sole and exclusive discretion under those regulations. Consequently, the provision is inconsistent with the regulations. [n27]  See Section VIII.B.2. of this decision, supra. Consistent with this analysis, the Authority's decision as to Proposal 9, POPA II, 53 FLRA at 667-74, will no longer be followed.

      Accordingly, we find that the provision is inconsistent with applicable Government-wide regulation under § 7117(a)(1) and was properly disapproved by the Agency as not in accordance with regulation under § 7114(c) of the Statute.

X.     Provision 8

      Section F.3.

For an intractable conflict of interest, such as a vested interest in a company-sponsored retirement plan, recusal or waiver, at the sole discretion [ v59 p355 ] of management, will normally be the remedy. An intractable conflict of interest is one wherein the employee cannot divest or has no control over divesting the asset. Marriage and divorce are not considered to be within one's control for the purpose of this proposal.

A.     Positions of the Parties

1.     Agency

      The Agency agrees with the Union that Provision 8 would preclude it from removing an employee in the circumstances described, but maintains that although the use of the word "normally" would allow it to transfer the employee, management's use of such a remedy would be limited. Statement of Position at 40-41. The Agency contends that the provision is inconsistent with 5 C.F.R. § 2634.605 and 2635.403(b) because it "clearly prevents the DAEO from considering all remedies available when a conflict of interest arises and from determining what remedial action should be taken." Id. at 41.

      Because the provision is inconsistent with Government-wide regulations, the Agency contends that it cannot be an appropriate arrangement. Nevertheless, the Agency argues that the effect of the provision on management's right to remove employees, under § 7106(a)(2)(A), and to assign work, under § 7106(a)(2)(B), is "disproportionate" to the benefit afforded employees. The Agency claims that the limits imposed on its ability to consider all appropriate remedies, including removal, severely limits its ability to avoid the appearance of a conflict of interest.

2.     Union

      The Union defines the phrase "intractable conflict of interest" as an interest wherein "the employee cannot divest the conflicting financial interest or has no control over the conflicting financial interest." Response at 62. The Union also notes that Provision 8 is similar to Proposal 12 in POPA II, but has been modified to take into account the Authority's decision finding the proposal nonnegotiable in that case. The Union contends that the provision is consistent with OGE regulations for the reasons stated with respect to Provision 6.

      As to whether Provision 8 is an appropriate arrangement, in assessing the impact of provision, the Union asserts that compared to the severity of an employee's losing their job, the burden on management of transferring an employee to another docket or refraining from assigning certain cases to that employee is minimal. The Union points out that management has presented no evidence that would demonstrate its inability to transfer an employee to another docket. Finally, the Union argues that the Panel's decision requiring the adoption of the provision should not be set aside.

3.     OGE

      OGE maintains that Provision 8 is inconsistent with §§ 2634.605 and 2635.403(b) because it restricts the Agency's sole and exclusive discretion to determine appropriate remedies.

B.     Analysis and Conclusions

1.      Meaning of the Provision

      By its terms, Provision 8 provides that when an employee is determined to have an "intractable conflict of interest," as defined by the provision, the Agency "normally" will allow the employee to recuse himself or herself or will waive the ethics requirements pertaining to conflict.

2.      Provision 8 is Inconsistent with 5 C.F.R. §§ 2634.605(b) and 2635.403(b)

      Under 5 C.F.R. §§ 2634.605(b) and 2635.403(b), an agency has sole and exclusive discretion as to the actions that it will take to address employees' conflicts of interest. Because Provision 8 limits the actions that the agency will be able to take in addressing "intractable" conflict of interest situations, it concerns how the agency will exercise its sole and exclusive discretion under those regulations. Consequently, the provision is inconsistent with the regulations. [n28]  See Section VIII.B.2. of this decision, supra. Consistent with this analysis, the Authority's decision as to Proposal 12, POPA II, 53 FLRA at 667-74, will no longer be followed.

      Accordingly, we find that the provision is inconsistent with applicable Government-wide regulation under § 7117(a)(1) and was properly disapproved by the Agency as not in accordance with regulation under § 7114(c) of the Statute. [ v59 p356 ]

XI.      Provision 9

      Section F.4.

In the event that a conflict of interest arises due to the current employment of a bargaining unit employee's spouse or dependent child, recusal, waiver, or transfer, at the sole discretion of management, will normally be the remedy.

A.     Positions of the Parties

1.     Agency

      The Agency notes that Provision 9 would preclude the removal of an employee "where the [conflict of interest] is the result of the employment of the employee's family members." Statement of Position at 42. The Agency contends that the provision is inconsistent with 5 C.F.R. §§ 2634.605 and 2635.403(b) "because it clearly prevents the DAEO from considering all remedies available when a conflict of interest arises and from determining what remedial action should be taken." Id. at 43.

      Because the provision is inconsistent with Government-wide regulations, the Agency contends that it cannot be an appropriate arrangement. The Agency also asserts that the provision excessively interferes with its right to remove employees under § 7106(a)(2)(A) of the Statute. In particular, the Agency contends that the effect of the provision on management's rights is disproportionate to the benefits afforded employees "because it increases the likelihood that when a conflict exists or appears to exist, the conflict or appearance of a conflict will, to the detriment of the Agency, continue for lack of an appropriate remedy." Id.

2.     Union

      The Union acknowledges that, under law, the financial interests of a spouse or dependent child are imputed to an employee, but contends that such interests may change over time and thereby create a potential conflict of interest. The Union states that Provision 9 is designed to address such circumstances. The Union contends, for the reasons previously stated, that the provision is not inconsistent with Government-wide regulations.

      The Union contends that the provision is an appropriate arrangement. The Union argues that the burden on management under the provision is slight since the provision preserves management's remedies of recusal, waiver, or transfer. Finally, the Union argues that the Panel's decision requiring the adoption of the provision should not be set aside.

3.     OGE

      OGE maintains that Provision 9 is inconsistent with §§ 2634.605 and 2635.403(b) because it restricts the Agency's sole and exclusive discretion to determine appropriate remedies.

B.     Analysis and Conclusions

1.      Meaning of the Provision

      By its terms, Provision 9 provides that when an employee has a conflict of interest that results from the current employment of the employee's spouse or minor child, the Agency "normally" will allow the employee to recuse himself or herself or will waive the ethics requirements pertaining to the conflict.

2.     Provision 9 is Inconsistent with 5 C.F.R. §§ 2634.605(b) and 2635.403(b)

      Under 5 C.F.R. §§ 2634.605(b) and 2635.403(b), an agency has sole and exclusive discretion as to the actions that it will take to address employees' conflicts of interest. Because Provision 9 limits the actions that the agency will be able to take in addressing conflicts of interest that result from the employment of an employee's spouse or minor child, it concerns how the agency will exercise its sole and exclusive discretion under those regulations. Consequently, the provision is inconsistent with the regulations. [n29]  See Section VIII.B.2. of this decision, supra.

      Accordingly, we find that the provision is inconsistent with applicable Government-wide regulation under § 7117(a)(1) and was properly disapproved by the Agency as not in accordance with regulation under § 7114(c) of the Statute.

XII.      Provision 10

      Section G.1.

Before issuing any suggestion or directive to divest, the office of the DAEO must contact the [ v59 p357 ] employee and verify the employee's technological area of primary responsibility. Any directive to divest will include the description of the employee's technological area of primary responsibility.

A.     Positions of the Parties

1.     Agency

      The Agency contends that Provision 10 is inconsistent with 5 C.F.R. § 2634.605 and, when read together with Provisions 11 and 12, with 5 C.F.R. §§ 2635.403(d) and 2634.1001 et seq. According to the Agency, the cited regulations "provide procedures and policies by which OGE and the Agency will notify the employee of the need for remedial action, such as divestiture[,] and procedures for the issuance of Certificates of Divestiture (CoDs)." Statement of Position at 44. The Agency maintains that, under those regulations, the DAEO has sole and exclusive discretion to determine whether additional information is needed before determining whether there is a conflict of interest. The Agency asserts that "any absolute requirement to contact the employee before communicating the DAEO's determination that divestiture is the remedy is inconsistent with the regulations." Id. at 45-46.

      The Agency also contends that, under the provision, employees might not timely divest themselves of financial interests ordered by the DAEO because of the delay involved in the DAEO contacting the employee. According to the Agency, such delay could result in an employee taking more than the maximum 90 days from the date divestiture is first ordered to divest the interest.

      Finally, the Agency argues that, because the provision is inconsistent with a Government-wide regulation, it is not necessary to address any Union claim that the provision is within the duty to bargain as a procedure under § 7106(b)(2) of the Statute.

2.     Union

      According to the Union, Provision 10 is intended to ensure that no employee is required to divest a financial interest unnecessarily and that ethics officials become knowledgeable about an employee's technological area. The Union states that employees usually learn that an ethics official has concluded that they have a conflict of interest when they receive an order to divest and that subsequent information most often results in the order being rescinded. In order to prevent the turmoil that results from such orders, the Union explains that the provision requires that "the first contact be in the nature of an investigatory inquiry rather than an order to divest." Response at 71.

      The Union notes that the Agency does not contend that the provision affects a management right. Moreover, for reasons previously stated, the Union contends that DO-99-014 should not be given deference and that OGE's regulations are not Government-wide.

      As to the Agency's reliance on 5 C.F.R. § 2634.605, the Union argues that the provision is "fully consistent" with the regulation. Id. at 72. Specifically, the Union points out that § 2634.605(b)(4) requires that if an ethics official reviewing an employee's confidential financial report determines that the report may reveal a violation of law or regulation, the official must notify the employee of that conclusion and provide an opportunity for an oral or verbal response. Further, the Union disputes the Agency's claim that the regulations preclude contact with an employee prior to rendering a decision on the remedial action required, arguing that, under § 2634.605(b)(4)(iii)(C), a decision as to remedy is to be made only after considering an employee's response. The Union maintains that § 2634.605(b)(4) "in and of itself" requires that "the employee be given an opportunity to be heard before a decision is made that there is an actual conflict of interest that needs remediation and before a decision is made as to what remedial action needs to be taken." Id. at 72.

      Finally, the Union disputes the Agency's claim that the provision, when read in conjunction with Provisions 11 and 12, is inconsistent with OGE regulations because it will lead to confusion as to the date that divestiture is first directed. The Union claims that the direction to divest is a final decision made after employees have had an opportunity to explain their circumstances as provided in § 2634.605(b)(4).

3.      OGE

      OGE contends that the definition of "technological area" used in the disputed provisions in this case is related to the determination of conflicts of interest. OGE maintains that any attempt to restrict a class of financial interests must be done by means of supplemental regulations which are subject to the approval of OGE. OGE maintains that "any attempt to have an effect on the determination of conflicts of interest through an agreement between an agency and its labor [ v59 p358 ] organization(s) is inconsistent with" OGE's regulations. Amicus Brief at 43.

      OGE also contends that, under 5 C.F.R. §§ 2634.605 and 2635.403, the Agency has sole and exclusive discretion as to the information it will consider in making its determinations and as to the determinations themselves. Moreover, because Provision 10 requires "verification first," OGE asserts that it will "delay the [A]gency's correction of any existing conflicts" and "[s]uch a delay is inconsistent with the regulatory deadlines." Id. at 44. In sum, OGE maintains that "[t]o the extent that [the provision] seeks to establish a system other than the one already provided in the regulations, it is inconsistent with the regulations." Id. at 44-45.

B.     Analysis and Conclusions

1.      Meaning of the Provision

      Provision 10, as worded, requires the DAEO, or his or her designee, to contact an employee and verify the technological area within which the employee works prior to determining that the employee has a conflict of interest and ordering the employee to divest the conflicting financial interest. Should the DAEO ultimately determine that divestiture is necessary, the provision also requires that the order to divest include a description of the employee's technological area of primary responsibility.

2.      Provision 10 is Inconsistent with 5 C.F.R. § 2634.605(b)(4)

      Under 5 C.F.R. § 2634.605, the reviewing official, who normally is the DAEO, must examine employees' confidential financial reports and determine whether there is any financial interest disclosed that violates, or appears to violate, conflict of interest laws or regulations. If the reviewing official determines that the information provided may reveal a violation of law or regulation, under 5 C.F.R. § 2634.605(b)(4), that official must notify the employee of that conclusion, provide the employee with an opportunity to respond, and, taking the response into account, make a final determination as to compliance and, as appropriate, decide on the necessary remedial action. Thus, while 5 C.F.R. § 2634.605(b)(4) requires the reviewing official to contact an employee about a possible conflict of interest violation, it does not specify the content of that contact. The information provided to and sought from the employee is within management's discretion.

      Provision 10 requires the office of the DAEO, before making any final decision as to divestiture, to contact any employee who may have a conflict of interest and inquire as to the employee's technological area of primary responsibility. [n30]  That is, the provision specifies the type of information that the Agency must obtain from an employee as a part of its contact with the employee under 5 C.F.R. § 2634.605(b)(4). However, that is a matter that is within the sole and exclusive discretion of the Agency under OGE regulations. Because Provision 10 concerns how the Agency will exercise its sole and exclusive discretion under 5 C.F.R. § 2634.605(b)(4), it is inconsistent with that regulation within the meaning of § 7117(a)(1) of the Statute. [n31]  See Section VIII.B.2. of this decision, supra.

      Consequently, we find that the provision is inconsistent with applicable Government-wide regulation under § 7117(a)(1) and was properly disapproved by the Agency as not in accordance with regulation under § 7114(c) of the Statute.

XIII.      Provision 11

      Section G.2.

An employee who is asked to divest shall also be instructed as to how to apply for a certificate of divestiture (providing for non-recognition of gain for income tax purposes in the case of a sale to comply with conflict of interest regulations) pursuant to 5 C.F.R. Part 2634, Subpart J, and shall be given the opportunity to be granted such a certificate prior to any final requirement to divest. The Office shall support the employee's request for a COD unless there is well-established precedent to the contrary and application of the precedent to the facts is clear cut. If the Agency ethics official declines to submit the request, the official shall provide a written justification to the employee. [ v59 p359 ]

A.     Positions of the Parties

1.     Agency

      The Agency maintains that Provision 11 is inconsistent with the OGE regulation that governs the issuance of CoDs, specifically, 5 C.F.R. § 2634.1002(b). The Agency claims that the regulation "simply does not provide for the issuance of a CoD prior to a final requirement to divest." Statement of Position at 47 (emphasis in original). Specifically, the regulations require the DAEO to provide an analysis and opinion concerning whether a CoD is warranted under the rules and, the Agency asserts, "the final requirement to divest must be made before the employee can be given an opportunity to obtain a CoD." Id. at 48. Moreover, the Agency points out, the decision "to require divestiture is independent of the decision to issue a CoD[.]" Id. According to the Agency, the DAEO has sole and exclusive discretion to determine questions of divestiture and OGE decides whether to issue a CoD, but OGE will only issue a CoD if it agrees with the DAEO's determination. The Agency argues that, by providing for a different process, the provision is inconsistent with OGE regulations.

      Finally, the Agency argues that, because the provision is inconsistent with a Government-wide regulation, it is not necessary to address any Union claim that the provision is within the duty to bargain as a procedure under § 7106(b)(2) or an appropriate arrangement within the meaning of § 7106(b)(3) of the Statute. In addition, the Agency does not object to the Union's request for severance.

2.     Union

      The Union states that Provision 11 establishes procedures to be followed when an employee is ordered to divest a financial interest and decides to request a CoD. The Union explains that requiring the DAEO to concur in an employee's request as long as it is consistent with precedent ensures that any new interpretation of applicable regulations does not originate at the Agency level and that the regulations are uniformly applied.

      The Union disputes the Agency's characterization of OGE's role in issuing CoDs and claims that it is "unreasonable and unwarranted to assume that the [OGE] will disregard its own policy and simply not act on requests for [CoDs]." Response at 75. In addition, the Union contends that, in arguing that OGE regulations "do not provide for the issuance of a CoD prior to a final requirement to divest," the Agency is not relying on the correct regulations. Id. Specifically, the Union asserts that, under 5 C.F.R. § 2634.605(b)(4)(iii)(C), there is no time limit governing a reviewing official's final determination concerning divestiture and, since the timing of the determination is within the official's discretion, negotiation on the exercise of that discretion is appropriate. Further, the Union claims that "[t]here is no regulatory impediment to deferring the final decision to divest until after [OGE]" has ruled on the request for a CoD. Id. at 76. In this regard, the Union argues that "the rules contemplate that [an employee requesting a CoD] may have executed an agreement as to the date by which particular assets will be sold or otherwise transferred[,] [but] [t]here is no reason why such agreements cannot be conditional based upon the concurrence of [OGE]." Id.

      For reasons previously stated, the Union contends that DO-99-014 should not be given deference and that OGE's regulations are not Government-wide. Moreover, the Union argues that the Factfinder and the Panel considered the provision to be an appropriate balancing of the parties' interests and their finding should not be disturbed unless the provision is "inherently and invariably" inconsistent with Government-wide regulations.

3.      OGE

      OGE contends that its regulations "do not provide for issuance of a [CoD] as a precondition to divestiture" because the "issuance of a [CoD] is a tax matter entirely distinct from the requirement to divest." Amicus Brief at 45. According to OGE, only OGE or the President can issue a CoD and, notwithstanding OGE's consideration of an application for a CoD, under 5 C.F.R. §§ 2634.605 and 2634.1002(b)(1)(i)(A), "an employee must accomplish the divestiture within ninety calendar days of the agency's order to divest." Id. OGE claims that Provision 11 is inconsistent with its regulations.

B.     Analysis and Conclusions

1.      Meaning of the Provision

      By its terms, Provision 11 requires that an employee be provided the opportunity to request a CoD prior to being required to divest a financial interest. [ v59 p360 ]

2.      Provision 11 is inconsistent with 5 C.F.R. § 2634.1002(b)

      Upon application of the DAEO to the Director of OGE, eligible employees who are required to divest a financial interest in order to comply with conflict of interest laws and regulations, may receive a CoD, which qualifies the proceeds of the divestiture for nonrecognition of gains for tax purposes. 5 C.F.R. § 2634.1002(a). See also OGE Advisory Opinion 99 x 9. Only the Director of OGE or the President can issue a CoD, and only if he or she agrees with the opinion of the DAEO that such divestiture is reasonably necessary to comply with conflict of interest laws and regulations. [n32]  5 C.F.R. § 2634.1002(b)(2) (standard of reasonable necessity). The decision of the Director of OGE to issue a CoD can only be made after submission by the DAEO of "full and complete case materials," including, among other things, a written request from the employee who is to divest the financial interest, accompanied by that employee's commitment to complete the divestiture no later than the three month period specified in an ethics agreement between the employee and the DAEO, or between the employee and some other designated official that is approved by the DAEO. 5 C.F.R. § 2634.1002(b)(1) and 5 C.F.R. § 2634.802(a), 803(d).

      Under OGE regulations, as outlined above, where a DAEO has determined that an employee is not in compliance with applicable conflict of interest laws and regulations, the DAEO may, as a remedy for such noncompliance, pursuant to 5 C.F.R. § 2634.605(b)(5)(ii)(A), require the employee to divest the conflicting financial interest. In those circumstances, the employee may request a CoD, through, and with the agreement of, the DAEO. The regulations clearly provide that the order to divest is a condition precedent to the request for a CoD. This is made plain by the fact that, procedurally, the DAEO's request must be accompanied by an ethics agreement that specifies when the divestiture must be completed. Moreover, because the Director's determination as to granting a CoD does not involve review of the requirement to divest, that requirement is final. Thus, the Director's determination cannot, under the regulations, be a condition precedent to the finality of the requirement to divest. This interpretation is consistent with the view expressed by OGE in its Amicus Brief. Amicus Brief at 45.

      Provision 11 allows an employee who is directed to divest a financial interest an opportunity to be granted a CoD prior to any final requirement to divest. Because the provision would establish the employee's request, through the DAEO, for a CoD as a condition precedent to the finality of the requirement to divest, it is inconsistent with an applicable Government-wide regulation, 5 C.F.R. § 2634.1002(b), within the meaning of § 7117(a)(1) of the Statute. Further, to the extent that the provision establishes a condition precedent to the DAEO's sole and exclusive discretion to determine whether an employee should be required to divest, under 5 C.F.R. § 2634.605(b)(5)(ii)(A), it is also inconsistent with a Government-wide regulation under § 7117(a)(1). [n33]  See Section VIII.B.2. of this decision, supra.

      Consequently, we find that the provision is inconsistent with applicable Government-wide regulation under § 7117(a)(1) and was properly disapproved by the Agency as not in accordance with regulation under § 7114(c) of the Statute.

XIV.      Provision 12

      Section G.3.

In the event the Office directs an examiner to divest financial holdings as a result of a conflict created by an Office-initiated action or through an inadvertent mistake on the part of the examiner, the office shall provide such notice in writing and will allow 30 days for divestiture, but not before a requested COD has been granted or denied.

A.     Positions of the Parties

1.     Agency

      The Agency interprets Provision 12 as designed to provide a reasonable period of time for an employee to accomplish divestiture. However, the Agency points out, 5 C.F.R. § 2635.403(d) provides that a reasonable [ v59 p361 ] period is no more than 90 days. Moreover, the Agency argues, citing 5 C.F.R. § 2634.1002(b), "[o]nly OGE can grant or deny a CoD" and, because the regulations do not establish a time limit for granting or denying a CoD, the parties cannot establish a limit through negotiation. Statement of Position at 49. Further, citing 5 C.F.R. §§ 2634.802(b) and 1002(b)(1)(i)(A), the Agency maintains that "an employee must complete divestiture within three months after reaching agreement with the Agency to do so, before he or she may request a CoD." Reply at 31. The Agency claims that the provision would extend the time limit for divestiture beyond the 90 day limit and notes that OGE specifically stated in DO-99-014 that a "proposal seeking to exceed the 90 days set by [§ 2635.403(d)] as a reasonable period to divest a financial interest would be non-negotiable." Id. (quoting DO-99-014 at 3).

      Finally, the Agency argues that, because the provision is inconsistent with a Government-wide regulation, it is not necessary to address any Union claim that the provision is within the duty to bargain as a procedure under § 7106(b)(2) of the Statute.

2.     Union

      As explained by the Union, Provision 12 is designed to ensure that employees have adequate time to comply with an order to divest. In addition, the Union states that, because an employee who divests a financial interest prior to receiving a grant of a CoD loses any benefit under the CoD, the provision provides that, regardless of the time limit established thereby, an employee will not be required to divest until a CoD has been granted or denied.

      The Union argues that there is no requirement under OGE regulations that a final decision to direct divestiture must be made prior to a decision by OGE on issuance of a CoD. Rather, the provision is a "permissible exercise of an agency's discretion as to when it will render its final decision to divest[.]" Response at 79. The Union contends that it should not be expected that OGE will fail to act promptly.

      The Union contends that the Panel ordered the adoption of the provision after consideration of the best interests of the parties and the Government and should be allowed to stand unless it can be shown to be "inherently and invariably" inconsistent with Government-wide regulations. Id. Further, for reasons previously stated, the Union contends that DO-99-014 should not be given deference and that OGE's regulations are not Government-wide.

3.      OGE

      OGE maintains that, because Provision 12 precludes divestiture before a requested CoD is granted or denied, it is inconsistent with the requirement of OGE regulations that divestiture be accomplished within 90 days of an agency's order to divest. According to OGE, the date on which the 90 days begins to run is established in 5 C.F.R. § 2634.1002(b), which provides that the agency must secure an employee's agreement to divest before requesting a CoD. The date of the employee's agreement triggers the running of the 90 days. 5 C.F.R. § 2634.802(b). Under this process, OGE asserts, the time limit begins to run before a request for a CoD is filed with OGE and runs without regard to OGE's consideration of that request. Further, OGE claims that any exception to the 90 day deadline requires OGE concurrence and such concurrence may not be required by a collective bargaining agreement.

B.     Analysis and Conclusions

1.      Meaning of the Provision

      As worded, under Provision 12, where an order to divest has resulted from the specified actions, the Agency is required to afford the employee subject to such an order 30 days to complete the divestiture, but not before the employee's request, through the DAEO, for a CoD has been granted or denied. That is, in the particular circumstances covered by the provision, the date for completion of the required divestiture would be 30 days after the decision on the request for a CoD.

2.      Provision 12 is Inconsistent with 5 C.F.R. §§ 2634.802(b) and 2634.1002(b)(1)(A)

      Under 5 C.F.R. § 2634.605(b)(5)(i), any remedial action required by the DAEO, or his or her designee, must be completed "not later than three months from the date on which" an employee "received notice that the action is required." 5 C.F.R. § 2634.605(b)(5)(i). OGE regulations also provide that any ethics agreement under 5 C.F.R. § 2634.802(b) must include a commitment by the employee subject to the agreement that any required divestiture must be completed by a date not to exceed three months from the date of the agreement. As relevant herein, according to OGE, any required divestiture must be completed not later than the end of the three-month period from the earliest of the date of the order to divest or the date of an ethics agreement to divest the property. See OGE Advisory Opinion 99 x 9, "How to Request a C[o]D", ¶ 2. An extension of the time limit [ v59 p362 ] for divestiture may only be granted by, or with the concurrence of, the Director of OGE. 5 C.F.R. §§ 2634.802(b), 2634.1002(b)(1)(i)(A).

      OGE's regulations make clear that any required divestiture must take place not later than the end of the three month period beginning with the earliest of the date of the order to divest or an ethics agreement providing for divestiture. The regulations do not permit divestiture later than the deadlines specified. Consequently, Provision 12, by allowing divestiture 30 days from the date of the Director of OGE's decision on an employee's request for a CoD, is inconsistent with those regulatory deadlines. Specifically, since the Director's consideration of, and decision on, a request for a CoD occurs subsequent either to the order to divest or the ethics agreement, his or her decision on that request may be issued on a date less than 30 days from the applicable deadline. In those circumstances, the provision would permit divestiture after the deadline has occurred. This interpretation is consistent with the view expressed by OGE in its Amicus Brief.

      Further, it is clear that any extension of those deadlines requires a decision by the Director of OGE. The Authority has consistently held that, where discretion as to an action resides with a third party outside the bargaining relationship, a provision requiring that action is outside the duty to bargain. See AFGE, Local 1978, 56 FLRA 894, 898 (2000) (citing POPA II, 53 FLRA at 682-83)). Thus, to the extent that Provision 12 would require an extension of the deadlines for divestiture provided under 5 C.F.R. § 2634.605(b)(5)(i) or 5 C.F.R. § 2634.802(b), a matter within the discretion of the Director of OGE, it is inconsistent with 5 C.F.R. §§ 2634.802(b) and 2634.1002(b)(1)(A), which are Government-wide regulations within the meaning of § 7117(a)(1) of the Statute. [n34] 

      Accordingly, we find that the provision is inconsistent with applicable Government-wide regulation under § 7117(a)(1) and was properly disapproved by the Agency as not in accordance with regulation under § 7114(c) of the Statute.

XV.     Order

      The petition for review as to Provisions 1-3 and 5-12 is dismissed. The Agency is ordered to rescind its disapproval of Provision 4.


APPENDIX

1.     35 U.S.C. § 1(a) provides as follows:

(a) Establishment--The United States Patent and Trademark Office is established as an agency of the United States, within the Department of Commerce. In carrying out its functions, the United States Patent and Trademark Office shall be subject to the policy direction of the Secretary of Commerce, but otherwise shall retain responsibility for decisions regarding the management and administration of its operations and shall exercise independent control of its budget allocations and expenditures, personnel decisions and processes, procurements, and other administrative and management functions in accordance with this title and applicable provisions of law. Those operations designed to grant and issue patents and those operations which are designed to facilitate the registration of trademarks shall be treated as separate operating units within the Office.

2.     5 C.F.R. § 2424.22(d) provides as follows:

§ 2424.22 Exclusive representative's petition for review; purpose; content; severance; service.
(d) Service. The petition for review, including all attachments, must be served in accord with § 2424.2(g).

3.     5 C.F.R. § 2424.2(g) provides as follows:

      § 2424.2 Definitions

(g) Service means the delivery of copies of documents filed with the Authority to the other party's principal bargaining representative and, in the case of an exclusive representative, also to the head of the agency. Compliance with part 2429 of this subchapter is required.

4.     18 U.S.C. § 208(a) provides as follows:

§ 208. Acts affecting a personal financial interest
(a) Except as permitted by subsection (b) hereof, whoever, being an officer or employee of the executive branch of the United States Government, or of any independent agency of the United States, a Federal Reserve bank director, officer, or employee, or an officer or employee of the District of Columbia, including a special Government employee, participates personally and substantially as a Government officer or [ v59 p363 ] employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, in a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which, to his knowledge, he, his spouse, minor child, general partner, organization in which he is serving as officer, director, trustee, general partner, or employee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest-
Shall be subject to the penalties set forth in section 216 of this title.

5.     28 U.S.C. § 535 provides, in relevant part, as follows:

§ 535. Investigation of crimes involving Government officers and employees; limitations
(a) The Attorney General and the Federal Bureau of Investigation may investigate any violation of Federal criminal law involving Government officers and employees-
(1) notwithstanding any other provision of law; and
(2) without limiting the authority to investigate any matter which is conferred on them or on a department or agency of the Government.
(b) Any information, allegation, matter, or complaint witnessed, discovered, or received in a department or agency of the executive branch of the Government relating to violations of Federal criminal law involving Government officers and employees shall be expeditiously reported to the Attorney General by the head of the department or agency, or the witness, discoverer, or recipient, as appropriate, unless-
(1) the responsibility to perform an investigation with respect thereto is specifically assigned otherwise by another provision of law; or
(2) as to any department or agency of the Government, the Attorney General directs otherwise with respect to a specified class of information, allegation, or complaint.

6.      5 C.F.R. §§ 2638.501 and 2638.603 provide, in relevant part, as follows:

§ 2638.501 In general.
(a) Authority. The Director of the Office of Government Ethics has authority under subsections 402(b)(9) and 402(f)(2) of the Act to order corrective and remedial action with respect to individual employees to bring about compliance with applicable ethics provisions. Nothing in this subpart relieves an agency of its primary responsibility to ensure compliance.

      . . . .

(c) Violations of criminal statutes. Nothing contained in this part gives the Director or any agency official authority to make a finding that any criminal statute relating to conflicts of interest is being or has been violated. If facts elicited under these procedures indicate that a criminal violation of any such provision is occurring or has occurred, the suspected violation will be referred for possible prosecution in accordance with 28 U.S.C. 535 and the reporting requirements set forth in § 2638.603 of this chapter shall apply. Subsequent to referral, proceedings under this subpart may be initiated or continued at the discretion of the Director, after consultation with the appropriate investigatory or prosecutorial authorities.

      . . . .

§ 2638.603 Reports of referral for possible prosecution.
(a) In general. Section 535 of title 28 of the United States Code imposes upon every agency a duty to report to the Attorney General any information, allegations or complaints relating to violations of title 18 of the United States Code involving Government officers and employees, including possible violations of 18 U.S.C. 207 by former officers and employees. Guidelines issued by the Attorney General require reporting of such allegations or complaints to the local office of the appropriate investigative agency, the United States Attorney for the district in which the violation occurred or is occurring and the appropriate division of the Department of Justice.


File 1: Authority's Decision in 59 FLRA No. 50
File 2: Opinion of Member Pope


Footnote # 1 for 59 FLRA No. 50 - Authority's Decision

   Member Pope's separate opinion, concurring in part and dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 50 - Authority's Decision

   Pursuant to § 2429.9 of the Authority's Regulations, the Office of Government Ethics (OGE) petitioned to file as an amicus curiae and submitted a brief. Both the Agency and the Union submitted supplemental submissions addressing OGE's brief. We grant OGE's petition and will consider its brief.


Footnote # 3 for 59 FLRA No. 50 - Authority's Decision

   The text of 35 U.S.C. § 1 is set forth in the Appendix to this decision.


Footnote # 4 for 59 FLRA No. 50 - Authority's Decision

   For the text of these sections of the Authority's Regulations see the Appendix to this decision.


Footnote # 5 for 59 FLRA No. 50 - Authority's Decision

   Consistent with the position set forth below, the Department filed the Statement of Position and Reply in this case as the representative of USPTO for ethics-related matters.


Footnote # 6 for 59 FLRA No. 50 - Authority's Decision

   5 C.F.R. § 2634.903(d) provides that the "agency reviewing official may . . . grant . . . a filing extension or several extensions totaling not more than 90 days."


Footnote # 7 for 59 FLRA No. 50 - Authority's Decision

   Because the Union has demonstrated that the different portions of the provision have independent meaning, consistent with § 2424.22(c) of the Authority's Regulations, we grant the Union's request for severance. In this regard, as noted in the Record of Post-Petition Conference, at 3, the Agency stipulated that the disputed portion of Provision 1 is severable from the remainder of the provision. In addition, because the disputed portion of the provision is inconsistent with § 2634.903(d), it is not necessary to address OGE's alternative claim that the Agency has sole and exclusive discretion to grant extensions under that regulation.


Footnote # 8 for 59 FLRA No. 50 - Authority's Decision

   The text of 18 U.S.C. § 208 is set forth in the Appendix to this decision.


Footnote # 9 for 59 FLRA No. 50 - Authority's Decision

   The text of 28 U.S.C. § 535 and 5 C.F.R. § 2638.501 is set forth in the Appendix to this decision.


Footnote # 10 for 59 FLRA No. 50 - Authority's Decision

   See OGE Advisory Opinion 99 x 22 (December 1, 1999) ("[T]he Ethics in Government Act of 1978 expressly prohibits OGE from making "any finding that a provision of title 18, United States Code, or any criminal law of the United States outside of such title, has been or is being violated.").


Footnote # 11 for 59 FLRA No. 50 - Authority's Decision

   See OGE Advisory Opinion 88 x 13 (September 12, 1988) ("In most instances, the Department of Justice prefers that the agency cease its administrative investigation until the Department has completed its criminal investigation; simultaneous investigations must be coordinated with that Department.").


Footnote # 12 for 59 FLRA No. 50 - Authority's Decision

   See In re Bruce R. Lindsey, 158 F.3d 1263, 1274 (D.C. Cir. 1998) ("[A]t the very least `§ 535(b) evinces a strong congressional policy that executive branch employees must report information' relating to violations of Title 18, the federal criminal code.") quoting In re Sealed Case (Secret Service), 148 F.3d 1073, 1078 (D.C. Cir. 1998); OGE Advisory Opinion 85 x 8 (May 20, 1985) ("Any information received by an executive branch Department or agency related to violations of the conflict of interest laws must be reported to the Attorney General unless the responsibility for an investigation is specifically assigned elsewhere by law or the Attorney General directs otherwise in specific instances."). See also United States Dep't of the Air Force, Griffiss AFB, Rome, N.Y. v. FLRA., 949 F.2d 1169, 1174-75 (D.C. Cir. 1991).


Footnote # 13 for 59 FLRA No. 50 - Authority's Decision

   The Agency disputes the Union's characterization of the bargaining unit. Specifically, noting that the unit is a professional unit, the Agency contends that Computer Specialists are in a job series that does not have "positive educational requirements" and thus would be considered non-professionals and not included in the unit. Statement of Position at 16. The Authority will not resolve the issue of which employees are included in the bargaining unit in a negotiability appeal. Any dispute as to whether given employees are in the unit must be resolved through a representation proceeding under § 7112 of the Statute. See Congressional Research Employees Association, 3 FLRA 737 (1980).


Footnote # 14 for 59 FLRA No. 50 - Authority's Decision

   The Union cites OPM v. FLRA, 864 F.2d 165 (D.C. Cir. 1988) (OPM).


Footnote # 15 for 59 FLRA No. 50 - Authority's Decision

   We reject the Union's claim that OGE regulations are not Government-wide within the meaning of § 7117(a)(1). OGE is authorized to regulate ethics matters in the Executive branch of the Federal Government. 5 U.S.C. Appendix 4, § 402. The Authority has consistently held that Executive branch-wide regulations are Government-wide regulations under § 7117(a)(1). See AFGE, AFL-CIO, Local 1931, 32 FLRA 1023, 1056-57 (1988); AFGE, Local 225, AFL-CIO, 17 FLRA 417, 420 (1985). The Union has provided no reasons sufficient to require the Authority to reverse its precedent holding that Executive branch-wide regulations, such as the OGE regulations involved herein, constitute Government-wide regulations within the meaning of § 7117(a)(1) of the Statute.


Footnote # 16 for 59 FLRA No. 50 - Authority's Decision

   See Paralyzed Veterans of American v. D.C. Arena L.P., 117 F.3d 579, 584 (D.C. Cir. 1997), suggesting that, after Chevron, a court's deference to agency interpretations of ambiguous regulations is no different than the deference that is afforded to interpretations of ambiguous statutes.


Footnote # 17 for 59 FLRA No. 50 - Authority's Decision

   Congress also required the Director of OGE, in exercising his or her regulatory authority, to consult, as appropriate, with the agencies affected as well as with the Attorney General. 5 U.S.C. App. 4, § 402(c).


Footnote # 18 for 59 FLRA No. 50 - Authority's Decision

   The lack of an enforcement mechanism was among the deficiencies in the executive branch ethics program under Executive Order 11222 that Congress intended to remedy through enactment of the Ethics Act, by establishing OGE and empowering it to monitor agency ethics programs and order corrective action. See S. Rep. No. 95-170 (1977), at 29-31, 46-47, 148. See also H.R. Rep. No. 98-59 (1983), at 14-16; Ethics in Government: Office of Government Ethics, Hearings before the Subcommittee on Investigations of the Committee on Post Office and Civil Service, 99th Cong. 99-121 (1986) (Memoranda of the American Law Division of the Congressional Research Service, "Authority of the Office of Government Ethics to Order Agency or Employee Action," Sept. 26, 1986, and "Congressional Intent Concerning the Authority of the Office of Government Ethics Over Individual Ethics and Conflict of Interest Matters," Aug. 7, 1986).


Footnote # 19 for 59 FLRA No. 50 - Authority's Decision

   More specifically, Congress determined that "[a]n Office of Ethics . . . would centralize executive branch responsibility for enforcement; provide guidance to agencies on standard procedures to ensure the collection, review, and monitoring of financial disclosure statements; issue clear and understandable standards of conduct regulations; provide advisory opinions to agencies; and develop financial disclosure forms tailored to obtain all relevant information necessary to make conflict of interest determinations." S. Rep. No. 95-170 (1977), at 30-31.


Footnote # 20 for 59 FLRA No. 50 - Authority's Decision

   For example, Congress explained OGE's authority to monitor and review agency internal ethics systems by stating that "[d]ue to the decentralized nature of the ethics program in the Executive Branch, frequent comprehensive reviews of agency ethics procedures are crucial." S. Rep. 98-59 (1983), at 15.


Footnote # 21 for 59 FLRA No. 50 - Authority's Decision

   In this respect, the executive branch ethics regulatory structure established for OGE is analogous to the executive branch personnel regulatory structure. See the description of this personnel structure in McIntosh v. Weinberger, 810 F.2d 1411, 1417 (8th Cir. 1987).


Footnote # 22 for 59 FLRA No. 50 - Authority's Decision

   The Union's reliance on a substantially similar provision in another collective bargaining agreement must be rejected. It is well-settled that the fact that an identical provision is contained in another collective bargaining agreement does not render a provision consistent with law. See, e.g., AFGE, Local 1900, 51 FLRA 133, 135 (1995).


Footnote # 23 for 59 FLRA No. 50 - Authority's Decision

   Contrary to the Union's argument, this case is distinguishable from OPM because the provisions of the OGE regulations in dispute in this case do not restate, in regulatory form, the management rights set forth in § 7106 of the Statute.


Footnote # 24 for 59 FLRA No. 50 - Authority's Decision

   The Union requests that the disputed sentence "be considered separate and apart" from the rest of the provision. Petition for Review at 10. The Agency agrees that the sentence is severable. Record of Post-Petition Conference at 3. Accordingly, because we find that the Union has established that the disputed sentence has a meaning independent of the remainder of the provision, consistent with § 2424.22(c) of the Authority's Regulations, we grant the Union's request.


Footnote # 25 for 59 FLRA No. 50 - Authority's Decision

   Because the provision is inconsistent with 5 C.F.R. Part 2635, Subpart D, it is not necessary to address the parties' contentions as to the right to assign work under § 7106(a)(2)(B) and procedures under § 7106(b)(2).


Footnote # 26 for 59 FLRA No. 50 - Authority's Decision

   Because the provision is inconsistent with 5 C.F.R. §§ 2634.605(b) and 2635.403(b), it is not necessary to address the parties' contentions as to the right to assign work under § 7106(a)(2)(B) and appropriate arrangements under § 7106(b)(3).


Footnote # 27 for 59 FLRA No. 50 - Authority's Decision

   Because the provision is inconsistent with 5 C.F.R. §§ 2634.605(b) and 2635.403(b), it is not necessary to address the parties' contentions as to the right to assign work under § 7106(a)(2)(B) and appropriate arrangements under § 7106(b)(3).


Footnote # 28 for 59 FLRA No. 50 - Authority's Decision

   Because the provision is inconsistent with 5 C.F.R. §§ 2634.605(b) and 2635.403(b), it is not necessary to address the parties' contentions as to the right to remove employees and assign work under § 7106(a)(2)(A) and (B) and appropriate arrangements under § 7106(b)(3).


Footnote # 29 for 59 FLRA No. 50 - Authority's Decision

   Because the provision is inconsistent with 5 C.F.R. §§ 2634.605(b) and 2635.403(b), it is not necessary to address the parties' contentions as to the right to remove employees under § 7106(a)(2)(A) and appropriate arrangements under § 7106(b)(3).


Footnote # 30 for 59 FLRA No. 50 - Authority's Decision

   Because Provision 10 applies before a final decision is made as to a conflict of interest and an appropriate remedy, it is distinguishable from Provision 2, which applies after a final determination as to a criminal conflict of interest is made.


Footnote # 31 for 59 FLRA No. 50 - Authority's Decision

   Because the provision is inconsistent with 5 C.F.R. § 2634.605(b)(4), it is not necessary to address the Agency's contentions as to procedures under § 7106(b)(2) of the Statute.


Footnote # 32 for 59 FLRA No. 50 - Authority's Decision

   A determination of reasonable necessity as part of the process of resolving a request for a CoD is made pursuant to 26 U.S.C. § 1043(b)(2)(A) of the Internal Revenue Code. It is not a review of the requirement to divest itself, which is made pursuant to the entirely separate process of resolving possible conflicts of interest. See 5 C.F.R. § 2634.1001.


Footnote # 33 for 59 FLRA No. 50 - Authority's Decision

   Because the provision is inconsistent with 5 C.F.R. § 2634.1002(b), it is not necessary to address the Agency's contentions as to procedures, under § 7106(b)(2) of the Statute, and appropriate arrangements, under § 7106(b)(3).


Footnote # 34 for 59 FLRA No. 50 -