09:0983(138)NG - NTEU and Treasury, Customs Service -- 1982 FLRAdec NG
[ v09 p983 ]
09:0983(138)NG
The decision of the Authority follows:
9 FLRA No. 138
NATIONAL TREASURY
EMPLOYEES UNION
Union
and
DEPARTMENT OF THE
TREASURY, U.S. CUSTOMS
SERVICE
Agency
Case No. O-NG-323
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
AND RAISES ISSUES CONCERNING THE NEGOTIABILITY OF NINE PROVISIONS (SET
FORTH IN THE APPENDIX) OF A LOCAL AGREEMENT WHICH WERE DISAPPROVED BY
THE AGENCY HEAD PURSUANT TO SECTION 7114(C) OF THE STATUTE. /1/ UPON
CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
THE FIRST ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
THOSE PORTIONS OF ARTICLE 2 SECTION 1A AND B, ARTICLE 32 SECTION 10A AND
ARTICLE 40 SECTION 3 WHICH ESTABLISH THAT WHENEVER PROVISIONS CONTAINED
IN THE NEGOTIATED AGREEMENT CONFLICT WITH GOVERNMENT-WIDE OR AGENCY-WIDE
RULES OR REGULATIONS ISSUED AFTER THE DATE THE AGREEMENT BECAME
EFFECTIVE, THE AGREEMENT PROVISIONS WILL PREVAIL. THE AUTHORITY, IN
AGREEMENT WITH THE UNION, CONCLUDES THAT THESE PROVISIONS ARE CONSISTENT
WITH THE LANGUAGE OF THE STATUTE AND ITS LEGISLATIVE HISTORY. IN THIS
REGARD, SECTION 7116(A) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
. . . .
(7) TO ENFORCE ANY RULE OR REGULATION (OTHER THAN A RULE OR
REGULATION IMPLEMENTING SECTION
2302 OF THIS TITLE) WHICH IS IN CONFLICT WITH ANY APPLICABLE
COLLECTIVE BARGAINING AGREEMENT
IF THE AGREEMENT WAS IN EFFECT BEFORE THE DATE THE RULE OR REGULATION
WAS PRESCRIBED . . . .
THE CONFERENCE COMMITTEE REPORT CONCERNING THIS SECTION STATED AS
FOLLOWS: /2/
THE CONFERENCE REPORT AUTHORIZES, AS IN THE SENATE BILL, THE ISSUANCE
OF GOVERNMENT-WIDE
RULES OR REGULATIONS WHICH MAY RESTRICT THE SCOPE OF COLLECTIVE
BARGAINING WHICH MIGHT
OTHERWISE BE PERMISSIBLE UNDER THE PROVISIONS OF THIS TITLE. AS IN
THE HOUSE, HOWEVER, THE
ACT GENERALLY PROHIBITS SUCH GOVERNMENT-WIDE RULE OR REGULATION FROM
NULLIFYING THE EFFECT OF
AN EXISTING COLLECTIVE BARGAINING AGREEMENT. THE EXCEPTION TO THIS
IS THE ISSUANCE OF RULES
RULES OR REGULATIONS IMPLEMENTING SECTION 2302. RULES
OR REGULATIONS ISSUED UNDER SECTION 2302 MAY HAVE THE EFFECT OF
REQUIRING NEGOTIATION OF A
REVISION OF THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT TO THE
EXTENT THAT THE NEW RULE OR
REGULATION INCREASES THE PROTECTION OF THE RIGHTS OF EMPLOYEES.
CONSEQUENTLY, WHILE THE DUTY TO BARGAIN UNDER SECTION 7117 OF THE
STATUTE /3/ DOES NOT EXTEND TO MATTERS WHICH ARE INCONSISTENT WITH
EXISTING GOVERNMENT-WIDE RULES OR REGULATIONS OR AGENCY-WIDE RULES OR
REGULATIONS FOR WHICH A COMPELLING NEED IS FOUND TO EXIST, ONCE A
COLLECTIVE BARGAINING AGREEMENT BECOMES EFFECTIVE, SUBSEQUENTLY ISSUED
RULES OR REGULATIONS, WITH THE EXCEPTION OF GOVERNMENT-WIDE RULES OR
REGULATIONS ISSUED UNDER 5 U.S.C. 2302 (RELATING TO PROHIBITED PERSONNEL
PRACTICES), CANNOT NULLIFY THE TERMS OF SUCH A COLLECTIVE BARGAINING
AGREEMENT. THUS, THE PROVISIONS HERE IN DISPUTE ARE WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE.
THE SECOND ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
ARTICLE 3 SECTIONS 12, 13 AND 14. SECTION 12 CONCERNS THE MANNER IN
WHICH EMPLOYEES ARE TO BE NOTIFIED OF CERTAIN PROCEDURES, PRIVILEGES AND
OBLIGATIONS IN RELATION TO AGENCY CONDUCTED INTERROGATIONS OF EMPLOYEES.
SECTION 12 REQUIRES THE AGENCY TO NOTIFY EMPLOYEES OF WRITTEN
NON-CRIMINAL COMPLAINTS LODGED AGAINST THEM AS SOON AS PRACTICABLE AND
TO FURNISH, UPON THE EMPLOYEE'S REQUEST, COPIES OF THE COMPLAINT AND THE
AGENCY'S RESPONSE THERETO. SECTION 14 PROVIDES THAT EMPLOYEES WILL BE
ALLOWED TO BE PRESENT DURING A NON-CRIMINAL SEARCH OF THE EMPLOYEE'S
POSSESSIONS AT THE WORKSITE IF THE EMPLOYEE IS OTHERWISE PRESENT AT THE
WORKSITE.
CONTRARY TO THE AGENCY'S ASSERTIONS, SECTIONS 12, 13 AND 14 DO NOT
INTERFERE WITH THE AGENCY'S RIGHT UNDER SECTION 7106(A)(1) OF THE
STATUTE TO DETERMINE ITS INTERNAL SECURITY PRACTICES BUT, RATHER,
CONCERN PROCEDURES NEGOTIABLE UNDER SECTION 7106(B)(2) OF THE STATUTE.
/4/ SPECIFICALLY, SECTION 12 DOES NOT INTERFERE WITH THE AGENCY'S
DETERMINATION WHETHER TO INTERVIEW A PARTICULAR EMPLOYEE; NOR DOES IT
CONCERN INVESTIGATIONS OR INTERVIEWS CONDUCTED BY OTHER AGENCIES.
RATHER, ONCE THE AGENCY HAS DETERMINED TO INTERVIEW AN EMPLOYEE, SECTION
12 WOULD REQUIRE THAT SUCH EMPLOYEE BE APPRISED OF CERTAIN RIGHTS, I.E.,
THE RIGHT TO REPRESENTATION AND THE RIGHT TO REMAIN SILENT WHEN BEING
INTERVIEWED REGARDING POSSIBLE CRIMINAL MISCONDUCT; THE RIGHT TO BE
APPRISED THAT THE FAILURE OR REFUSAL TO ANSWER QUESTIONS IN CRIMINAL
INVESTIGATIONS WHERE PROSECUTION HAS BEEN DECLINED OR IN NON-CRIMINAL
INVESTIGATIONS MAY RESULT IN DISCIPLINARY ACTION; AND THE RIGHT TO BE
APPRISED THAT A FALSE ANSWER MAY RESULT IN CRIMINAL PROSECUTION. IN
THIS RESPECT, SECTION 12 MERELY INCORPORATES INTO THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT AN EMPLOYEE'S LEGAL RIGHT TO
REPRESENTATION DURING SUCH INTERVIEWS, SEE SECTION 7114(A)(2)(B) OF THE
STATUTE; INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND INTERNAL
REVENUE SERVICE, HARTFORD DISTRICT OFFICE AND NATIONAL TREASURY
EMPLOYEES UNION, 4 FLRA NO. 37(1980), ENFORCED SUB NOM. INTERNAL
REVENUE SERVICE, WASHINGTON D.C. V. FEDERAL LABOR RELATIONS AUTHORITY,
671 F.2D 560(D.C. CIR. 1982), AND, IN ADDITION, AN EMPLOYEE'S LEGAL
RIGHT TO REMAIN SILENT WHEN BEING INVESTIGATED FOR POSSIBLE CRIMINAL
MISCONDUCT UNLESS CRIMINAL PROSECUTION IS DECLINED. SEE E.G. KALKINES
V. UNITED STATES, 473 F.2D 1391(CT. CL. 1973).
FURTHER, WHILE THE AGENCY ASSERTS THAT AN ATTORNEY GENERAL'S
MEMORANDUM, DATED JUNE 4, 1980, CONCERNING PROCEDURES TO BE FOLLOWED IN
ADMINISTRATIVE INVESTIGATIONS OF EMPLOYEE MISCONDUCT IS A BAR TO
NEGOTIATION, THE AGENCY MAKES NO SHOWING OF ANY INCONSISTENCY BETWEEN
SECTION 12 AND THAT MEMORANDUM. IN THE ABSENCE OF ANY SHOWING THAT THE
DISPUTED SECTION 12 IS INCONSISTENT WITH THE MEMORANDUM, IT IS
UNNECESSARY TO RULE ON WHETHER THAT MEMORANDUM CONSTITUTES A
GOVERNMENT-WIDE RULE OR REGULATION, AS CLAIMED BY THE AGENCY BECAUSE IN
SUCH CIRCUMSTANCES, THE MEMORANDUM WOULD NOT BAR THE NEGOTIATION OF THIS
PORTION OF THE PROVISION. SEE SECTION 7117(A)(1) OF THE STATUTE; LONG
BEACH NAVAL SHIPYARD, LONG BEACH CALIFORNIA AND INTERNATIONAL FEDERATION
OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL 174, AFL-CIO, 7 FLRA NO.
53(1981) AT 6.
TURNING TO SECTION 13, CONTRARY TO THE AGENCY'S CONTENTION, NOTHING
IN THIS PORTION OF THE PROVISION CONCERNS MANAGEMENT'S DISCRETION AND
JUDGMENT ON HOW TO PERFORM ITS INVESTIGATIVE FUNCTIONS. THAT IS,
SECTION 13 ONLY WOULD REQUIRE THAT AN EMPLOYEE BE NOTIFIED OF A WRITTEN
COMPLAINT RECEIVED BY MANAGEMENT CONCERNING THAT EMPLOYEE AS SOON AS
PRACTICABLE AFTER RECEIPT OF THE COMPLAINT. IN THIS RESPECT THE AGENCY
HAS NOT DEMONSTRATED HOW NOTIFYING AN EMPLOYEE OF A WRITTEN COMPLAINT
INVOLVING THAT EMPLOYEE AS SOON AS PRACTICABLE AFTER RECEIPT OF THE
COMPLAINT WOULD INTERFERE WITH THE AGENCY'S DISCRETION AND JUDGMENT ON
HOW TO MEET ITS INVESTIGATIVE RESPONSIBILITIES. FURTHER, NOTHING IN
SECTION 13 WOULD REQUIRE THE RELEASE OF INFORMATION IN VIOLATION OF THE
PRIVACY ACT (5 U.S.C. 552A(1976)). UNDER THIS PORTION OF THE PROVISION
THE AGENCY WOULD RETAIN THE DISCRETION TO TAKE WHATEVER ACTION IS
NECESSARY TO "SANITIZE" THE COMPLAINT SO AS TO PROTECT "CONFIDENTIAL
SOURCES" OR OTHER EMPLOYEES INVOLVED IN THE COMPLAINT. THUS, THE AGENCY
HAS NOT ESTABLISHED THAT SECTION 13 VIOLATES LAW OR INTERFERES WITH THE
AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES.
FINALLY, AS TO SECTION 14, THERE IS NOTHING IN THAT PORTION OF THE
PROVISION CONCERNING THE AGENCY'S DETERMINATION WHETHER TO SEARCH AN
EMPLOYEE'S POSSESSIONS AT THE WORKSITE. RATHER, SECTION 14 ONLY WOULD
REQUIRE THAT, IF THE EMPLOYEE IS PRESENT AT THE WORKSITE, THE EMPLOYEE
WILL BE PERMITTED TO BE PRESENT DURING THE SEARCH AND TO BE REPRESENTED
BY THE UNION. IN THIS CONNECTION, THE AGENCY HAS NOT DEMONSTRATED HOW
THE EMPLOYEE'S PRESENCE DURING A SEARCH OF HIS POSSESSIONS WOULD PREVENT
MANAGEMENT FROM PROTECTING ITS PROPERTY FROM LOSS, DESTRUCTION OR
DISCLOSURE. THUS, IT HAS NOT ESTABLISHED THAT SECTION 14 WOULD
INTERFERE WITH THE AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY
PRACTICES. SEE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 61
AND DEPARTMENT OF THE TREASURY, 7 FLRA NO. 47(1981).
ACCORDINGLY, SECTIONS 12, 13 AND 14 OF ARTICLE 3 ARE NOT INCONSISTENT
WITH LAW OR GOVERNMENT-WIDE REGULATIONS AND DO NOT INTERFERE WITH THE
AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES BUT ARE
WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE.
THE THIRD ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
THE LAST SENTENCE OF ARTICLE 10 SECTION 9 WHICH WOULD REQUIRE MANAGEMENT
TO PROVIDE EMPLOYEES WITH THE OPPORTUNITY TO UNDERTAKE THOSE WORK
ASSIGNMENTS WHICH WILL ENABLE MANAGEMENT TO EVALUATE THE EMPLOYEES'
ABILITY TO PERFORM HIGHER GRADED WORK. THE RIGHT "TO ASSIGN WORK"
PURSUANT TO SECTION 7106(A)(2)(B) OF THE STATUTE INCLUDES THE RIGHT TO
DETERMINE THE PARTICULAR DUTIES TO BE ASSIGNED AND THE PARTICULAR
EMPLOYEE TO WHOM OR POSITIONS TO WHICH THE DUTIES WILL BE ASSIGNED.
NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU
OF THE PUBLIC DEBT, 3 FLRA 769, 775(1980). IN AGREEMENT WITH THE
AGENCY, THE AUTHORITY FINDS THE DISPUTED SENTENCE WOULD INTERFERE WITH
THIS MANAGEMENT RIGHT. THAT IS, MANAGEMENT WOULD BE OBLIGATED TO ASSIGN
SUCH DUTIES AS WOULD ENABLE MANAGEMENT TO EVALUATE AN EMPLOYEE'S ABILITY
TO PERFORM HIGHER GRADED DUTIES. IN ADDITION, MANAGEMENT'S DECISION TO
ASSIGN PARTICULAR DUTIES TO PARTICULAR EMPLOYEES WOULD BE SUBJECT TO
CHALLENGE ON THE BASIS THAT THE DUTIES ASSIGNED DID NOT ENABLE
MANAGEMENT TO EVALUATE AN EMPLOYEE'S ABILITY TO PERFORM HIGHER GRADED
WORK AND THEREFORE TO THE POSSIBILITY OF AN ARBITRATOR SUBSTITUTING HIS
JUDGMENT FOR THAT OF THE AGENCY WITH RESPECT TO THE ASSIGNMENT OF
DUTIES. THUS, THE LAST SENTENCE OF ARTICLE 10 SECTION 9 DIRECTLY
INTERFERES WITH THE AGENCY'S SECTION 7106(A)(2)(B) RIGHT "TO ASSIGN
WORK" AND IS OUTSIDE THE DUTY TO BARGAIN. SEE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1968 AND DEPARTMENT OF
TRANSPORTATION, SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION, MASSENA,
NEW YORK, 5 FLRA NO. 14(1981), APPEAL DOCKETED SUB NOM. AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1968 V. FEDERAL LABOR
RELATIONS AUTHORITY, NO. 81-1274 (D.C. CIR. MAR. 11, 1981).
THE FOURTH ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
ARTICLE 12 SECTIONS 12A AND B WHICH PROVIDE THAT EMPLOYEES RELEASED FROM
THEIR COMPETITIVE LEVELS BECAUSE OF A REDUCTION-IN-FORCE WILL BE PLACED
IN VACANT POSITIONS (TO BE FILLED WITHIN THREE MONTHS OF THE RIF) FOR
WHICH THEY QUALIFY OR FOR WHICH THEY HAVE THE CAPACITY, ADAPTABILITY OR
SPECIAL SKILLS REQUIRED BY THE POSITION. THE PROVISION HERE IN DISPUTE
BEARS NO MATERIAL DIFFERENCE FROM THE PROPOSAL WHICH WAS HELD
NONNEGOTIABLE IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2782 AND DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON,
D.C., 7 FLRA NO. 13(1981), APPEAL DOCKETED SUB NOM. AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 2782 V. FEDERAL LABOR RELATIONS
AUTHORITY, NO. 81-2386 (D.C. CIR. DEC. 29, 1981). IN THAT DECISION THE
AUTHORITY HELD THAT A PROPOSAL REQUIRING EMPLOYEES DEMOTED THROUGH NO
FAULT OF THEIR OWN TO BE SELECTED FOR AVAILABLE VACANCIES FOR WHICH THEY
WERE QUALIFIED VIOLATED THE AGENCY'S RIGHT TO CHOOSE AMONG CANDIDATES
FROM "ANY APPROPRIATE SOURCE" PURSUANT TO SECTION 7106(A)(2)(C)(II) OF
THE STATUTE. THEREFORE, FOR THE REASONS FULLY SET FORTH IN BUREAU OF
THE CENSUS, THE PROVISION HERE IN DISPUTE MUST ALSO BE HELD TO BE
OUTSIDE THE DUTY TO BARGAIN.
THE FIFTH ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
THE SECOND SENTENCE OF ARTICLE 16 SECTION 8 WHICH PROVIDES THAT
PERFORMANCE STANDARDS SHALL BE UNIFORMLY APPLIED FOR LIKE DUTIES IN LIKE
CIRCUMSTANCES. THE PORTION OF THE PROVISION HERE IN DISPUTE BEARS NO
MATERIAL DIFFERENCE FROM PROPOSAL 5 WHICH WAS BEFORE THE AUTHORITY IN
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND
OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA 784 (1980). IN
THAT DECISION THAT AUTHORITY HELD THAT THE PORTION OF PROPOSAL 5
PROVIDING THAT PERFORMANCE STANDARDS WILL BE FAIR AND EQUITABLE AND
CONSISTENT WITH THE CLASSIFICATION STANDARDS FOR THE JOB WAS WITHIN THE
DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE AS AN
APPROPRIATE ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY
MANAGEMENT'S
AUTHORITY UNDER THE STATUTE TO DIRECT EMPLOYEES AND ASSIGN WORK THROUGH
THE ESTABLISHMENT OF PERFORMANCE STANDARDS AND TO DISCIPLINE EMPLOYEES
FOR UNACCEPTABLE PERFORMANCE. THE DISPUTED PORTION OF ARTICLE 16
SECTION 8 SIMILARLY WOULD ESTABLISH A GENERAL, NONQUANTITATIVE STANDARD
BY WHICH THE APPLICATION OF CRITICAL ELEMENTS AND PERFORMANCE STANDARDS
ESTABLISHED BY MANAGEMENT MAY SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE
BY AN EMPLOYEE WHO BELIEVES THAT HE HAS BEEN ADVERSELY AFFECTED BY THE
APPLICATION OF MANAGEMENT'S PERFORMANCE STANDARDS TO HIM. THUS, FOR THE
REASONS FULLY SET FORTH IN OFFICE OF PERSONNEL MANAGEMENT, THE DISPUTED
PORTION OF ARTICLE 16 SECTION 8 MUST BE HELD TO BE WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE.
THE LAST TWO PROVISIONS IN DISPUTE HEREIN, ARTICLE 36 SECTION 5C AND
ARTICLE 37 SECTION 7D, CONTAIN IDENTICAL LANGUAGE PROVIDING THAT
EMPLOYEES WHO ARE ON OFFICIAL TIME REPRESENTING THE UNION IN COLLECTIVE
BARGAINING NEGOTIATIONS WITH THE AGENCY WILL BE ENTITLED TO
REIMBURSEMENT FOR THEIR TRAVEL AND PER DIEM EXPENSES. EACH OF THESE
PROVISIONS, HOWEVER, IS INTENDED TO APPLY IN A DIFFERENT BARGAINING
SITUATION. SPECIFICALLY, ARTICLE 36 SECTION 5C APPLIES WHEN THE PARTIES
ARE NEGOTIATING LOCAL AGREEMENTS TO SUPPLEMENT THE NATIONAL (MASTER)
AGREEMENT AND ARTICLE 37 SECTION 7D APPLIES WHEN THE PARTIES ARE
INVOLVED IN IMPACT BARGAINING.
WITH REGARD TO THE REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES
INCURRED DURING COLLECTIVE BARGAINING NEGOTIATIONS, THE AUTHORITY
DETERMINED IN INTERPRETATION AND GUIDANCE, 2 FLRA 265(1979) THAT WHEN AN
EMPLOYEE IS AUTHORIZED OFFICIAL TIME UNDER SECTION 7131(A) OF THE
STATUTE /5/ TO PARTICIPATE IN SUCH COLLECTIVE BARGAINING NEGOTIATIONS
THAT EMPLOYEE IS DEEMED TO BE ON "OFFICIAL BUSINESS FOR THE GOVERNMENT"
AND, THUS, ENTITLED TO REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES.
FURTHER IN THIS RESPECT, THE AUTHORITY CONCLUDED IN BUREAU OF ALCOHOL,
TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT OF THE TREASURY, SAN
FRANCISCO, CALIFORNIA AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 81,
4 FLRA NO. 40(1980), ENFORCED SUB NOM. BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS V. FEDERAL LABOR RELATIONS AUTHORITY, 672 F.2D 732 (9TH CIR.
1982) THAT EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE DURING
"IMPACT" BARGAINING WITH AN AGENCY ARE AUTHORIZED OFFICIAL TIME UNDER
SECTION 7131(A) AND, AS A CONSEQUENCE, REIMBURSEMENT FOR THEIR TRAVEL
AND PER DIEM EXPENSES. ACCORDINGLY, SINCE ARTICLE 37 SECTION 7D,
PROVIDING FOR REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES FOR
EMPLOYEES ON OFFICIAL TIME DURING "IMPACT" BARGAINING WITH THE AGENCY,
MERELY INCORPORATES INTO THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
THE LEGAL ENTITLEMENT TO SUCH EXPENSES, IT IS CLEARLY WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE.
IN CONTRAST TO THE STATUTORY AUTHORIZATION FOR OFFICIAL TIME AND,
THEREBY, TRAVEL AND PER DIEM EXPENSE REIMBURSEMENT FOR EMPLOYEES ENGAGED
IN IMPACT BARGAINING, THE AUTHORITY DETERMINED IN INTERPRETATION AND
GUIDANCE, 7 FLRA NO. 105(1982) THAT EMPLOYEES ARE NOT AUTHORIZED
OFFICIAL TIME UNDER SECTION 7131(A) TO PARTICIPATE IN THE NEGOTIATION OF
LOCAL AGREEMENTS TO SUPPLEMENT A NATIONAL OR CONTROLLING (MASTER)
AGREEMENT. HOWEVER, THE AUTHORITY ALSO INDICATED IN THIS DECISION THAT
WHEN THE PARTIES AT THE MASTER AGREEMENT LEVEL AGREE TO AUTHORIZE THE
CREATION OF LOCAL SUPPLEMENTS THEY REMAIN EMPOWERED PURSUANT TO SECTION
7131(D) OF THE STATUTE /6/ TO NEGOTIATE OFFICIAL TIME FOR EMPLOYEES
PARTICIPATING IN SUCH NEGOTIATION IN ANY AMOUNT THEY AGREE IS
"REASONABLE, NECESSARY, AND IN THE PUBLIC INTEREST." FURTHER, INSOFAR AS
THE PARTIES MAY ESTABLISH A CONTRACTUAL ENTITLEMENT TO OFFICIAL TIME FOR
EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF
LOCAL SUPPLEMENTS THE PARTIES ALSO MAY DETERMINE THE EXTENT TO WHICH
TRAVEL IN CONNECTION WITH SUCH NEGOTIATIONS WILL OCCUR DURING OFFICIAL
TIME. OF COURSE, SINCE THE PARTIES ONLY MAY NEGOTIATE OFFICIAL TIME
UNDER SECTION 7131(D) WHICH IS IN "THE PUBLIC INTEREST," TRAVEL WHICH
OCCURRED DURING SUCH OFFICIAL TIME ALSO WOULD BE "IN THE PUBLIC
INTEREST" AND PERFORCE WOULD ENTITLE AN EMPLOYEE TO TRAVEL AND PER DIEM
EXPENSE REIMBURSEMENT. SEE NATIONAL TREASURY EMPLOYEES UNION AND
DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, 9 FLRA NO. 70(1982).
THEREFORE, BASED ON THE AFOREMENTIONED DECISIONS, SINCE THE PARTIES
IN THIS CASE HAVE ALREADY AGREED THAT EMPLOYEES REPRESENTING THE UNION
DURING THE NEGOTIATION OF LOCAL SUPPLEMENTS WILL BE ON OFFICIAL TIME
(WHICH AGREEMENT IS NOT IN DISPUTE), THE REQUIREMENT CONTAINED IN
SECTION 5 OF ARTICLE 36 THAT EMPLOYEES BE REIMBURSED FOR THEIR TRAVEL
AND PER DIEM EXPENSES FOR THAT TRAVEL WHICH OCCURS DURING SUCH OFFICIAL
TIME DOES NOT VIOLATE LAW BUT RATHER IS WITHIN THE DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S
PETITION FOR REVIEW RELATING TO ARTICLE 10 SECTION 9 (LAST SENTENCE) AND
ARTICLE 12 SECTIONS 12A AND B BE, AND IT HEREBY IS DISMISSED. IT IS
FURTHER ORDERED THAT THE AGENCY SHALL RESCIND ITS DISAPPROVAL OF ARTICLE
2, SECTIONS 1A AND B, ARTICLE 32 SECTION 10A, ARTICLE 40 SECTION 3,
ARTICLE 3 SECTIONS 12, 13 AND 14, ARTICLE 16 SECTION 8 (SECOND
SENTENCE), ARTICLE 36 SECTION 5C AND ARTICLE 37 SECTION 7D WHICH WERE
BARGAINED ON AND AGREED TO BY THE PARTIES AT THE LOCAL LEVEL. /7/
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
ARTICLE 2, SECTIONS 1A AND B
A. IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THIS AGREEMENT,
ALL MANAGEMENT OFFICIALS AND EMPLOYEES ARE GOVERNED BY EXISTING OR
FUTURE LAWS; AND GOVERNMENT-WIDE AND TREASURY DEPARTMENT RULES OR
REGULATIONS IN EFFECT UPON THE EFFECTIVE DATE OF THE AGREEMENT.
B. SHOULD ANY CONFLICT ARISE IN THE ADMINISTRATION OF THIS AGREEMENT
BETWEEN THE TERMS OF THIS AGREEMENT AND ANY GOVERNMENT-WIDE OR AGENCY
RULE OR REGULATION SUCH AS THE FEDERAL PERSONNEL MANUAL, OR THE TREASURY
PERSONNEL MANUAL ISSUED AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, THE
TERMS OF THIS AGREEMENT WILL SUPERSEDE AND GOVERN.
ARTICLE 3, SECTIONS 12, 13 AND 14
SECTION 12 OFFICE OF MANAGEMENT INTEGRITY INTERVIEWS
A. WHEN AN EMPLOYEE IS INTERVIEWED BY THE OFFICE OF MANAGEMENT
INTEGRITY, AND THE EMPLOYEE IS THE SUBJECT OF AN INVESTIGATION, THE
EMPLOYEE WILL BE INFORMED OF THE GENERAL NATURE OF THE MATTER (I.E.
CRIMINAL OR ADMINISTRATIVE MISCONDUCT) BEING INVESTIGATED, AND, UPON
REQUEST, BE INFORMED WHETHER OR NOT THE INTERVIEW IS RELATED TO POSSIBLE
CRIMINAL MISCONDUCT BY HIM.
B. WHERE THE SUBJECT OF AN OFFICE OF MANAGEMENT INTEGRITY
INVESTIGATION IS BEING INTERVIEWED REGARDING A MATTER OF CRIMINAL
MISCONDUCT BY HIM, THE EMPLOYEE HAS THE RIGHT TO BE REPRESENTED AT THE
INTERVIEW, AND THE RIGHT TO REMAIN SILENT AND NOT TO ANSWER ANY
QUESTIONS.
C. WHEN AN EMPLOYEE IS THE SUBJECT OF A CUSTODIAL INTERROGATION BY
THE OFFICE OF MANAGEMENT INTEGRITY AS THE SUBJECT OF AN ALLEGATION THAT
THE EMPLOYEE IS GUILTY OF CRIMINAL MISCONDUCT, HE WILL BE ADVISED OF HIS
RIGHT TO COUNSEL AND HIS RIGHT TO REMAIN SILENT.
D. IN AN INTERVIEW INVOLVING POSSIBLE CRIMINAL MATTERS, WHERE
PROSECUTION HAS BEEN DECLINED BY APPROPRIATE AUTHORITY, AN EMPLOYEE WILL
BE REQUIRED TO ANSWER QUESTIONS ONLY AFTER THE OFFICE OF MANAGEMENT
INTEGRITY REPRESENTATIVE HAS PROVIDED THE EMPLOYEE WITH THE APPROPRIATE
ASSURANCES. PRIOR TO REQUIRING AN EMPLOYEE TO ANSWER UNDER SUCH
CIRCUMSTANCES, THE OFFICE OF MANAGEMENT INTEGRITY REPRESENTATIVE SHALL
INFORM THE EMPLOYEE THAT HIS STATEMENTS CONCERNING THE ALLEGATIONS
DURING THE INTERVIEW CANNOT AND WILL NOT BE USED AGAINST HIM IN A
SUBSEQUENT CRIMINAL PROCEEDING, EXCEPT FOR POSSIBLE PERJURY CHARGES FOR
ANY FALSE ANSWERS GIVEN DURING THE INTERVIEW.
E. IN ANY INTERVIEW WHERE THE EMPLOYEE IS NOT THE SUBJECT OF A
CRIMINAL INVESTIGATION, OR WHEN AN EMPLOYEE HAS BEEN ADVISED OF HIS
RIGHTS UNDER SUBSECTION D ABOVE, THE OFFICE OF MANAGEMENT INTEGRITY
REPRESENTATIVE HAS THE AUTHORITY TO INFORM THE EMPLOYEE THAT:
1) THE EMPLOYEE MUST DISCLOSE ANY INFORMATION KNOWN TO HIM CONCERNING
THE MATTER BEING
INVESTIGATED;
2) THE EMPLOYEE MUST ANSWER ANY QUESTIONS PUT TO HIM REGARDING ANY
MATTER WHICH HAS A
REASONABLE RELATIONSHIP TO MATTERS OF OFFICIAL INTEREST;
3) THE EMPLOYEE'S FAILURE OR REFUSAL TO ANSWER SUCH QUESTIONS MAY
RESULT IN DISCIPLINARY OR
ADVERSE ACTION; AND
4) A FALSE ANSWER TO ANY SUCH QUESTIONS MAY RESULT IN CRIMINAL
PROSECUTION.
WHEN AN EMPLOYEE REFUSES TO ANSWER A PROPER QUESTION, THE OFFICE OF
MANAGEMENT INTEGRITY REPRESENTATIVE SHALL INFORM HIM OF HIS OBLIGATION
TO ANSWER.
F. WHERE A REPRESENTATIVE OF THE OFFICE OF MANAGEMENT INTEGRITY
TAPE-RECORDS AN EMPLOYEE INTERVIEW, OR CAUSES A STENOGRAPHIC RECORD TO
BE MADE OF SUCH AN INTERVIEW, THE EMPLOYEE SHALL RECEIVE A VERBATIM
TRANSCRIPT OF THE INTERVIEW.
G. WHERE POSSIBLE IN A NON-CRIMINAL INVESTIGATION, THE OFFICE OF
MANAGEMENT INTEGRITY SHALL CONDUCT EMPLOYEE INTERVIEWS DURING THE
EMPLOYEES' DUTY HOURS.
H. WHERE A REPRESENTATIVE OF THE OFFICE OF MANAGEMENT INTEGRITY
DENIES AN EMPLOYEE THE OPPORTUNITY TO BE REPRESENTED BY THE UNION DURING
AN INTERVIEW UNDER SECTION 11 OF THIS ARTICLE, THE EMPLOYEE WILL, UPON
REQUEST, BE PROVIDED WITH THE REASON FOR THE DENIAL IN WRITING.
SECTION 13
A. AN EMPLOYEE WILL BE NOTIFIED OF A WRITTEN COMPLAINT RECEIVED BY
MANAGEMENT. A COMPLAINT FOR THE PURPOSE OF THIS SECTION IS DEFINED AS A
WRITTEN STATEMENT BY AN IDENTIFIED COMPLAINANT INDICATING
DISSATISFACTION WITH AN EMPLOYEE BY REASON OF CONDUCT, APPEARANCE OR
CARELESSNESS OR PROPRIETY OF AN ACTION TAKEN BY THE EMPLOYEE.
B. NOTIFICATION SHALL BE PROVIDED BY MANAGEMENT AS SOON AS
PRACTICABLE FOLLOWING THE RECEIPT OF THE COMPLAINT. UPON REQUEST, THE
EMPLOYEE SHALL BE FURNISHED WITH A COPY OF THE COMPLAINT; OR IF THE
COMPLAINT INVOLVES MORE THAN ONE EMPLOYEE, THAT PORTION OF THE COMPLAINT
RELATED TO THE REQUESTING EMPLOYEE. A COPY OF A WRITTEN RESPONSE BY
MANAGEMENT WILL BE FURNISHED TO THE EMPLOYEE UPON WRITTEN REQUEST BY THE
EMPLOYEE.
C. THIS SECTION DOES NOT APPLY TO COMPLAINTS WHICH CONTAIN
ALLEGATIONS OF CRIMINAL MISCONDUCT.
SECTION 14
WHEN THE EMPLOYER EXERCISES ITS LEGAL RIGHT TO SEARCH AN EMPLOYEE'S
POSSESSIONS AT THE WORKSITE (E.G. DESK, LOCKER, CAR, CLOTHING, ETC.) IN
A NON-CRIMINAL MATTER, THE EMPLOYEE WILL BE ALLOWED TO BE PRESENT DURING
THE SEARCH IF THE EMPLOYEE IS OTHERWISE PRESENT AT THE WORKSITE. THE
EMPLOYEE SHALL, UPON REQUEST, BE GIVEN AN OPPORTUNITY TO BE REPRESENTED
BY THE UNION DURING THE SEARCH, PROVIDED THAT THE SUPPLYING OF SUCH
REPRESENTATION BY THE UNION SHALL NOT UNDULY DELAY THE SEARCH OR IMPEDE
THE PURPOSE FOR WHICH THE SEARCH IS CONDUCTED.
ARTICLE 10, SECTION 9
IN THE OFFICE OF REGULATIONS AND RULINGS THE FOLLOWING SECTION WILL
CONTINUE TO APPLY.
THE EMPLOYER WILL SEEK TO MAKE AVAILABLE TO BARGAINING UNIT EMPLOYEES
ANY TRAINING COURSE THAT ENHANCES THE EMPLOYEE'S PROFICIENCY IN THE JOB
AND PROMOTIONAL OPPORTUNITIES. IN CASES WHERE SUCH COURSES CANNOT
ACCOMMODATE ALL INTERESTED EMPLOYEES OR THE NEEDS OF THE EMPLOYER
PRECLUDE HIM FROM RECOMMENDING ALL INTERESTED EMPLOYEES, THE EMPLOYER
WILL SEEK TO PROVIDE ALTERNATIVE TRAINING OPPORTUNITIES FOR THOSE
INTERESTED EMPLOYEES. ALL EMPLOYEES THROUGH GS-13 WILL BE PROVIDED WITH
AN OPPORTUNITY TO UNDERTAKE ASSIGNMENTS ON THE BASIS OF WHICH THE
ABILITY TO PERFORM BEYOND PRESENT GRADE LEVEL CAN BE EVALUATED.
ARTICLE 12, SECTIONS 12A AND B
A. WHERE THE EMPLOYER HAS DETERMINED THAT VACANT POSITIONS ARE TO BE
FILLED WITHIN THREE MONTHS FROM THE DATE OF A REDUCTION IN FORCE ACTION,
THE EMPLOYER SHALL PLACE EMPLOYEES RELEASED FROM THEIR COMPETITIVE
LEVELS IN THESE VACANT POSITIONS FOR WHICH THEY ARE QUALIFIED WITHIN
THEIR COMPETITIVE AREAS.
B. AN EMPLOYEE SHALL BE ASSIGNED TO A VACANCY BY WAIVING
QUALIFICATION REQUIREMENTS WHEN THE EMPLOYEE HAS THE CAPACITY,
ADAPTABILITY AND SPECIAL SKILLS REQUIRED BY THE POSITION. POSITIVE
EDUCATION REQUIREMENTS MAY NOT BE WAIVED IN ANY CASE.
ARTICLE 16, SECTION 8
PERFORMANCE EVALUATIONS SHALL BE BASED UPON REASONABLE PERFORMANCE
STANDARDS FOR EACH POSITION. SUCH PERFORMANCE STANDARDS SHALL BE
UNIFORMLY APPLIED FOR LIKE DUTIES IN LIKE CIRCUMSTANCES.
ARTICLE 32, SECTION 10A
A. THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CHANGE, ALTER, MODIFY,
DELETE OR ADD TO THE TERMS AND PROVISIONS OF THIS AGREEMENT AND/OR
APPLICABLE POLICIES AND REGULATIONS. IN THE ISSUANCE OF ANY AWARD UNDER
THIS ARTICLE, THE ARBITRATOR SHALL BE GOVERNED BY:
1. EXISTING AND FUTURE LAWS
2. THE REGULATIONS OF APPROPRIATE AUTHORITIES (I.E., GOVERNMENT-WIDE
RULES OR
REGULATIONS), INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
MANUAL IN EXISTENCE AT THE
TIME THIS AGREEMENT WAS APPROVED;
3. FUTURE REGULATIONS OF APPROPRIATE AUTHORITIES INCLUDING POLICIES
SET FORTH IN THE
FEDERAL PERSONNEL MANUAL, TO THE EXTENT THAT THEY DO NOT CONFLICT
WITH THE PROVISIONS OF THIS
AGREEMENT; AND,
4. THE REGULATIONS OF THE AGENCY AND/OR THE EMPLOYER IN EXISTENCE AT
THE TIME THIS
AGREEMENT WAS APPROVED - AND FUTURE REGULATIONS OF THE AGENCY AND/OR
THE EMPLOYER - TO THE
EXTENT THAT THEY DO NOT CONFLICT WITH THE PROVISIONS OF THIS
AGREEMENT.
ARTICLE 36, SECTION 5C
C. AN EMPLOYEE REPRESENTING THE UNION IN NEGOTIATIONS ON OFFICIAL
TIME UNDER THIS ARTICLE SHALL BE ENTITLED TO REIMBURSEMENT FOR TRAVEL
AND PER DIEM EXPENSES IF OTHERWISE ELIGIBLE UNDER APPLICABLE LAW AND
REGULATIONS.
ARTICLE 37, SECTION 7D
D. AN EMPLOYEE REPRESENTING THE UNION IN NEGOTIATIONS ON OFFICIAL
TIME UNDER THIS ARTICLE SHALL BE ENTITLED TO REIMBURSEMENT FOR TRAVEL
AND PER DIEM EXPENSES IF OTHERWISE ELIGIBLE UNDER APPLICABLE LAW AND
REGULATION.
ARTICLE 40, SECTION 3
A. THE PARTIES ACKNOWLEDGE THAT DURING THE NEGOTIATIONS WHICH
RESULTED IN THIS AGREEMENT, EACH HAD THE UNLIMITED RIGHT AND OPPORTUNITY
TO MAKE DEMANDS AND PROPOSALS WITH RESPECT TO ANY SUBJECT OR MATTER NOT
REMOVED FROM THE AREA OF COLLECTIVE BARGAINING BY APPLICABLE LAWS,
EXISTING AGENCY POLICIES AND REGULATIONS FOR WHICH A COMPELLING NEED
EXISTS, AND THE REGULATIONS OF OTHER APPROPRIATE AUTHORITIES. THE
UNDERSTANDINGS AND AGREEMENTS ARRIVED AT BY THE PARTIES AFTER THE
EXERCISE OF THAT RIGHT AND OPPORTUNITY ARE SET FORTH IN THIS AGREEMENT.
B. THEREFORE, THE EMPLOYER AND THE UNION, FOR THE LIFE OF THIS
AGREEMENT, EACH VOLUNTARILY AND UNQUALIFIEDLY RELINQUISHES THE RIGHT,
AND EACH AGREES THAT THE OTHER SHALL NOT BE OBLIGATED, TO BARGAIN
COLLECTIVELY WITH RESPECT TO ANY SUBJECT OR MATTER NOT SPECIFICALLY
REFERRED TO OR COVERED IN THIS AGREEMENT, EVEN THOUGH SUCH SUBJECTS OR
MATTERS MAY NOT HAVE BEEN WITHIN THE KNOWLEDGE OR CONTEMPLATION OF
EITHER OR BOTH OF THE PARTIES AT THE TIME THAT THEY NEGOTIATED OR SIGNED
THIS AGREEMENT.
IN SO AGREEING, THE PARTIES EXPRESSLY FORFEIT THEIR RESPECTIVE RIGHTS
TO PROPOSE OR INITIATE CHANGES IN THE CONDITIONS OF EMPLOYMENT DURING
THE LIFE OF THIS AGREEMENT WHICH ARE NEGOTIABLE IN SUBSTANCE UNDER THE
CIVIL SERVICE REFORM ACT AND WHICH DO NOT INVOLVE THE EXERCISE OF
MANAGEMENT RIGHTS. THIS SUBSECTION DOES NOT ALTER THE EMPLOYER'S RIGHT
TO EXERCISE ITS MANAGEMENT RIGHTS AS SET FORTH IN ARTICLE 5, OR THE
UNION'S RIGHT TO ENGAGE IN IMPACT BARGAINING AS SET FORTH IN ARTICLE 37.
C. THE PARTIES ALSO VOLUNTARILY AND UNQUALIFIEDLY RELINQUISH THE
RIGHT, AND EACH AGREES THAT THE OTHER SHALL NOT BE OBLIGATED, TO BARGAIN
COLLECTIVELY AND RESPECT TO ANY MODIFICATION OF THE TERMS AND PROVISIONS
CONTAINED IN THIS AGREEMENT, IF SUCH MODIFICATION IS TO BECOME EFFECTIVE
PRIOR TO THE EXPIRATION DATE OF THIS AGREEMENT, EXCEPT AS MAY
SPECIFICALLY BE PROVIDED FOR IN THE REOPENING PROVISIONS CONTAINED IN
THIS AGREEMENT.
D. ANY DISPUTES WHICH ARISE CONCERNING THE APPLICATION OF THIS
SECTION, SHALL BE SUBJECT TO THE GRIEVANCE AND ARBITRATION PROCEDURES
CONTAINED IN THIS AGREEMENT.
--------------- FOOTNOTES$ ---------------
/1/ CONTRARY TO THE UNION'S ASSERTIONS, THE AGREEMENT WAS PROPERLY
DISAPPROVED WITHIN THE MEANING OF SECTION 7114(C) BY "THE HEAD OF THE
AGENCY" OR HIS DESIGNEE, IN THIS CASE, THE DIRECTOR OF PERSONNEL,
DEPARTMENT OF THE TREASURY. SEE 5 U.S.C. 101,105; AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3656 AND FEDERAL TRADE
COMMISSION, BOSTON REGIONAL OFFICE, MASSACHUSETTS, 4 FLRA NO. 92(1980).
/2/ H. REP. NO. 95-1717, 95TH CONG., 2D SESS. 155(1978).
/3/ SECTION 7117 OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
INCONSISTENT WITH FEDERAL
LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
WHICH ARE THE SUBJECT OF ANY
AGENCY RULE OR REGULATION . . . ONLY IF THE AUTHORITY HAS DETERMINED
UNDER SUBSECTION (B) OF
THIS SECTION THAT NO COMPELLING NEED (AS DETERMINED UNDER REGULATIONS
PRESCRIBED BY THE
AUTHORITY) EXISTS FOR THE RULE OR REGULATION.
/4/ SECTION 7106 OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
(1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE
AGENCY(.)
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION(.)
/5/ SECTION 7131(A) PROVIDES, AS FOLLOWS:
SEC. 7131. OFFICIAL TIME
(A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER
SHALL BE AUTHORIZED
OFFICIAL TIME FOR SUCH PURPOSES, INCLUDING ATTENDANCE AT IMPASSE
PROCEEDING, DURING THE TIME
THE EMPLOYEE OTHERWISE WOULD BE IN A DUTY STATUS. THE NUMBER OF
EMPLOYEES FOR WHOM OFFICIAL
TIME IS AUTHORIZED UNDER THIS SUBSECTION SHALL NOT EXCEED THE NUMBER
OF INDIVIDUALS DESIGNATED
AS REPRESENTING THE AGENCY FOR SUCH PURPOSES.
/6/ SECTION 7131(D) OF THE STATUTE PROVIDES:
SEC. 7131. OFFICIAL TIME
. . . .
(D) EXCEPT AS PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS SECTION--
(1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
(2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS (STATUTE),
ANY EMPLOYEE IN AN
APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE, SHALL BE
GRANTED OFFICIAL TIME IN
ANY AMOUNT THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE INVOLVED AGREE
TO BE REASONABLE,
NECESSARY, AND IN THE PUBLIC INTEREST.
/7/ IN FINDING THESE ARTICLES NEGOTIABLE, THE AUTHORITY MAKES NO
JUDGMENT AS TO THEIR MERITS.