18:0789(97)NG - NFFE Local 1300 and GSA -- 1985 FLRAdec NG
[ v18 p789 ]
18:0789(97)NG
The decision of the Authority follows:
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
LOCAL 1300
Union
and
GENERAL SERVICES ADMINISTRATION
Agency
Case No. 0-NG-870
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7106(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and presents issues
relating to the negotiability of six sections of the following Union
proposal. /1/
Union Proposal
Inspector General Investigations
a) The Parties recognize the Employer's right to conduct
investigations into charges against Employees, as well as the
Employees' rights to fair and equitable treatment during and after
such investigation. Prior to questioning an Employee, he/she will
be advised of his/her rights, including the right to union
representation as outlined in Article 8, both verbally and in
writing.
b) Employees will be informed of any investigations concerning
themselves, unless the Employer reasonably believes such knowledge
would hinder the investigation. If the Employee is informed of
the investigation, he/she will be furnished with a projected
completion date, not to exceed 60 days from the initiation of the
investigation. Upon request, by the Employee or Union
representative, regular progress reports (on a weekly basis) will
be arranged, as well as meetings to discuss the reports. In the
event the targeted completion date cannot be met, the Employee,
and Union representative if desired, will be informed of the new
target date and reasons for the extension.
* * * *
d) The Employer will be free to contact anyone who could
reasonable be expected to have useful information directly related
to the investigation. Prior to contacting the Employee's family
members or personal friends and acquaintances, the Employer will
obtain the written consent of the Employee. This requirement may
be waived, if the Employer reasonably believes that such
notification would alter the validity of the information obtained.
e) Polygraphic testing will not be conducted without the
consent of the Employee and presence of a Union representative, if
desired. The Employee will have the right to have present any or
all of the following: a family doctor, a clergyman, a
psychologist, an attorney, and a Union representative. Any of
these individuals who are Federal employees will participate on
official time. Costs incurred in providing any of these people
will be reimbursed pursuant to subsection (i) below. The Employee
will have the right to request that his/her accuser(s) undergo a
similar polygraph examination. If the accuser(s) refuses, the
refusal will become part of the investigation report.
f) The Employee will be permitted to respond to various
elements of the complaint. The Employee will not be required to
make sworn statements on information not relevant to the care or
about which he/she does not have knowledge.
g) A formal finding will be issued within ten days of
completion of the investigation. If an investigation is
dismissed, or the Employee exonerated, all parties to the
investigation will be notified in writing. If the formal findings
differ from the division director's report, a copy of the division
director's report will be furnished to the Employee.
h) The Employer will furnish to the Union, on a quarterly
basis, sanitized statistics concerning investigations conducted
during the previous quarter involving Employees. The statistics
will include number of cases opened, number carried over from
previous quarter, number of cases resolved, summary of issues in
each case, agency, work areas involved, findings in cases
resolved, as well as action based on those findings.
i) If an Employee is proven innocent, or the case is dropped,
the Employee shall be reimbursed for expenses incurred in
defending him/herself.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
First of all, the Agency argues generally that it has no duty to
bargain over any of the Union's proposals pertaining to investigations
by the Office of the Inspector General (OIG) which involve unit
employees because the OIG, an independent entity within the Agency, is
not a party to the bargaining relationship at the level of exclusive
recognition. The Union contends in this regard, citing the Authority's
decision in American Federation of Government Employees, AFL-CIO, Local
3525 and United States Department of Justice, Board of Immigration
Appeals, 10 FLRA 61, 63-4 (1982), that the fact that authority as to
otherwise negotiable matters /2/ resides at a level of the Agency apart
from the level of exclusive recognition does not provide a basis for
finding the disputed proposals outside the duty to bargain. Rather, the
Union argues, under Board of Immigration Appeals, the Agency is
obligated, pursuant to section 7114(b)(2) of the Statute, to provide
representatives at the negotiations who are authorized to bargain on all
matters within the scope of negotiations. /3/
However, the circumstances of this case are distinguishable from
Board of Immigration Appeals. In that case, authority regarding the
subject matter of the proposal, i.e., purchase of a motor vehicle, had
been delegated from a higher level in the agency to an organizational
entity within the agency other than that which existed at the level of
exclusive recognition, although it was within the discretion of the
agency to delegate such authority to the level of exclusive recognition.
See, for example, 5 U.S.C. 302. Thus, the underlying theory of the
decision is that an agency cannot narrow the statutorily defined scope
of bargaining by withholding authority which it could, under law,
delegate to the level of exclusive recognition. In the instant case, on
the other hand, Sec. 3(a) of the Inspector General Act of 1978, Pub. L.
95-452, 92 Stat. 1101, 5 U.S.C.App. 3, provides that the Inspector
General shall report to and be under the general supervision of the head
of the agency, or the officer next in rank below the head of the agency
to the extent such authority is delegated, but shall not report to or be
subject to supervision by any other official of the agency. /4/ That
is, no authority over the IG can be exercised below the level of the
officer next in rank to the agency head: such authority cannot be
delegated below that level. Thus, unlike Board of Immigration Appeals,
the Agency here is precluded by law from authorizing representatives at
the level of exclusive recognition, i.e., a level below the officer next
in rank to the Agency head, to exercise any authority over the IG. It
must therefore follow that the Agency cannot be obligated under the
Statute to provide representatives authorized to negotiate at the level
of exclusive recognition on procedures governing the conduct of IG
investigations. The proposals in dispute herein are therefore outside
the duty to bargain at the level of recognition insofar as the matters
at issue are not matters concerning which the Agency can, under law,
authorize representatives to negotiate at that level.
The Union next contends that despite the limitations on the Agency's
authority over the IG, under the Authority's decision in American
Federation of State, County and Municipal Employees, AFL-CIO, Local
2477; American Federation of State, County and Municipal Employees,
AFL-CIO, Local 2910; Congressional Research Employees Association; and
Law Library of Congress United Association of Employees and Library of
Congress, Washington, D.C. and American Federation of State, County and
Municipal Employees, AFL-CIO, Local 2910 and Library of Congress,
Washington, D.C., 7 FLRA 578 (1982), affirmed sub nom. Library of
Congress v. FLRA, 688 F.2d 1280 (D.C. Cir. 1983), the Agency is
nevertheless obligated to bargain with the exclusive representative to
the extent it possesses any discretion to affect the operations of the
IG, e.g., to recommend that the IG follow the procedures set forth in
the Union's proposal. Since, as indicated above, any authority of the
Agency head with respect to the IG is not delegable, the most the
Union's proposal could accomplish in the circumstances is local
management's agreement to request the Agency head to make such a
recommendation. However, even if the proposal is construed in this
restricted manner, the object sought thereby, i.e., the Agency head's
recommendation, is inconsistent with the intent of Sec. 3(a) of the
Inspector General Act of 1978. In this regard, the legislative history
indicates that Sec. 3(a) is intended to preserve the independence of IG
operations and to enable that official to conduct investigations without
interference by the managers of the programs which are under scrutiny.
The Senate Committee Report accompanying the bill which was enacted by
Congress and signed into law by the President stated as follows: /5/
Above all, the Inspector and Auditors General created in this
legislation would have the requisite independence to do an
effective job. There is a natural tendency for an agency
administrator to be protective of the programs that he
administers. In some cases, frank recognition of waste,
mismanagement or wrongdoing reflects on him personally. Even if
he is not personally implicated, revelations of wrongdoing or
waste may reflect adversely on his programs and undercut public
and congressional support for them. Under these circumstances, it
is a fact of life that agency managers and supervisors in the
executive branch do not always identify or come forward with
evidence of failings in the programs they administer. For that
reason, the audit and investigative functions should be assigned
to an individual whose independence is clear and whose
responsibility runs directly to the agency head and ultimately to
the Congress.
This legislation accomplishes that, removing the inherent
conflict of interest which exists when audit and investigative
operations are under the authority of an individual whose programs
are being audited. The Inspector and Auditor General would be
under the general supervision of the head of the agency or his
deputy, but not under the supervision of any other official in the
agency. Even the agency head would have no authority to prevent
the Inspector and Auditor General from initiating and completing
audits and investigations he believes necessary.
Hence, insofar as the proposal would seek to have the Agency head
utilize his general supervisory authority over the IG to influence the
manner in which that official conducts investigations it impermissibly
infringes upon the independence of the IG to undertake such
investigations. The intent of Congress, as represented by the quote set
forth above, is that agency officials respect the freedom of the IG to
determine what, when, and how to investigate agency operations and that
the IG not be subjected to pressure by any part of the agency. Thus,
the independence of the IG under law precludes negotiation on proposals
purporting to influence the conduct of IG investigations.
In any event, as to the individual sections of the Union's proposal
which are disputed herein, the Agency contends that Section (b) is
outside the duty to bargain under section 7106(a)(1) of the Statute
because it would violate the Agency's right to determine its internal
security practices. /6/ Specifically, the Agency argues that by
providing for regular progress reports on the conduct of an
investigation to be made to an employee who is a subject of the
investigation, and to the employee's Union representative, Section (b)
would require the OIG to reveal privileged and confidential information
to persons who are not authorized to receive it. The Agency cites to
American Federation of Government Employees, AFL-CIO, National
Immigration & Naturalization Service Council and U.S. Department of
Justice, Immigration & Naturalization Service, 8 FLRA 347, 362 (1982),
in which it was contended that the proposal at issue therein would
compromise the confidentiality necessary to insure the integrity of the
investigation, contrary to the agency's right, under section 7106(a)(1),
to prescribe the policies which it determines are essential to achieve
that objective.
In the Immigration & Naturalization Service case, the Authority ruled
that management's right to determine internal security practices extends
to the establishment of rules applicable to internal agency
investigations into the conduct of agency operations, i.e., the type of
investigations the OIG is charged with making. /7/ Moreover, the
Authority has held that rules and policies pertaining to the disclosure
of privileged and confidential information constitute internal security
practices within the discretion of management to determine under section
7106(a)(1). See National Labor Relations Board Union and General
Counsel of the National Labor Relations Board, 5 FLRA 696 (1981)
(proposal permitting employees and union officials access to and
photocopying of files pertaining to investigation of unfair labor
practices held nonnegotiable under section 7106(a)(1)); National
Treasury Employees Union and Internal Revenue Service, 7 FLRA 275 (1981)
(proposal permitting union access to security areas contrary to agency
right under 7106(a)(1) to prohibit such access so as to protect against
unauthorized disclosure of confidential information stored in those
areas); Immigration & Naturalization Service, supra, at 363-64
(proposal permitting union representatives to maintain tapes and
transcripts of investigatory interviews which contain confidential
information held nonnegotiable under section 7106(a)(1)). In
particular, the Authority indicated, in agreement with the agency's
claim in Immigration & Naturalization Service, that the purpose of
preserving the confidentiality of information concerning an on-going
investigation through the adoption of such policies by management is,
among other things, to prevent premature disclosure of information which
might impede the investigation. Thus, for example, should information
concerning an investigation become available to interested parties it
could affect the testimony of subsequent witnesses or otherwise limit
the availability of relevant evidence.
Contrary to the Union's arguments, therefore, as to the negotiability
of a proposal providing for access to information regarding internal
investigations, it is irrelevant whether the proposal concerns
disclosure only to an employee who is a subject of the investigation, or
only to the employee and his representative, or to the Union.
Similarly, it is irrelevant what information concerning the
investigation management is required to disclose. As discussed above,
the right to determine the nature and extent of the information
concerning an investigation which it will disclose, and to whom it will
disclose that information, is reserved to management under the Statute.
Consequently, as Section (b) of the Union's proposal would prescribe the
conditions under which such information must be disclosed, it directly
interferes with management's right to determine the Agency's internal
security practice and is outside the duty to bargain under section
7106(a)(1) of the Statute.
Section (d) of the Union's proposal concerns the conditions under
which the OIG may contact friends and relatives of an employee su0ject
to an investigation in order to gather information from them relating to
that investigation. In particular, the OIG would be required to notify
the employee of such proposed contacts, and procure his consent thereto,
unless it reasonably believes that to do so would compromise the
validity of the information it seeks. Because the OIG retains this
discretion as to whether to notify the employee, the Union argues,
Section (d) does not interfere with the Agency's right to determine its
internal security practices, i.e., to conduct any given interview.
As indicated above, however, section 7106(a)(1) reserves to
management the right to establish the rules whereby it will conduct its
internal investigations. As such, it protects management's right to
determine the conditions under which those investigations, including
investigatory interviews, will take place. In the circumstances of the
case, that right extends to the determination of the conditions under
which an employee who is the subject of an investigation will receive
advance notice of an attempt to contact possible witnesses. That is,
contrary to the Union's argument, rather than preserving the discretion
of the OIG to conduct such interviews, Section (d) would prescribe a
policy or rule which would govern the conduct of the investigation. In
thus mandating a particular internal security practice, Section (d)
directly interferes with management's right under Section 7106(a)(1) to
determine those practices and is outside the duty to bargain.
As to Section (e) of the proposal, the Agency alleges that by
permitting an employee who is a subject of an investigation to refuse a
polygraphic test, Section (e) is contrary to its right to determine its
internal security practices under section 7106(a)(1) of the Statute. In
thus limiting management's use of the polygraph, Section (e) has the
same effect as Union Proposal 1 in American Federation of Government
Employees, Local 32 and Office of Personnel Management, 16 FLRA No. 10
(1984), which prohibited the use of polygraphs. In that case, the
Authority relying on its decision in American Federation of Government
Employees, AFL-CIO, Local 1898 and Department of the Army, U.S. Army
Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982), held
that by preventing management from utilizing the investigative
techniques which it had adopted the proposal at issue violated
management's right to determine its internal security practices under
section 7106(a)(1) of the Statute. Similarly, Section (e) at issue
herein, by conditioning use of a polygraph on the consent of the
employee, would effectively preclude the OIG from using that device to
conduct its investigation. /8/ Cf. National Treasury Employees Union
and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA
255, 257-60 (1979) (proposal providing for program regarding nameplates
to be voluntary was found to be nonnegotiable because it would prevent
implementation of the program). Thus, for the reasons set forth in the
Office of Personnel Management and Redstone Arsenal decisions, the
Authority finds that Section (e) of the Union's proposal directly
interferes with management's right under section 7106(a)(1), to
determine its internal security practices and is outside the duty to
bargain. /9/
Section (f) would preclude the OIG from requiring sworn statements
from employees on matters which are not relevant or about which the
employee has no knowledge. In thus limiting the use of sworn statements
Section (f) has the same effect as Union Proposal 8 in Immigration &
Naturalization Service, supra, at 361-62, which provided that no
employee would be required to give a statement under oath except as
required by law. The Authority held in that case that "the Agency's
decision to require oaths to ensure its obtaining truthful and reliable
information in conducting investigations . . . is an internal security
practice under section 7106(a)(1)" and that by preventing management
from administering oaths, except as required by law, the proposal
violated management's right to determine such practices. Similarly,
Section (f) herein, by prescribing the conditions under which the OIG
may require sworn statements, would directly interfere with the Agency's
right to determine its internal security practices under section
7106(a)(1) of the Statute. Thus, for the reasons set forth in the
Immigration & Naturalization Service decision, Section (f) is outside
the duty to bargain.
The Agency alleges that Section (g) is outside the duty to bargain
because it does not concern the conditions of employment of unit
employees within the meaning of section 7103(a)(14) of the Statute.
/10/ In particular, the Agency argues that by requiring the OIG to
notify all "parties" to an investigation that an employee has been
exonerated, or that an investigation has been dismissed, Section (g)
would concern management action with respect to persons outside the
bargaining unit and not the "conditions of employment" of unit
employees. /11/ In this regard, Section (g) has the same effect as
Union Proposal VI in National Treasury Employees Union and Internal
Revenue Service, 6 FLRA 522, 528-29 (1981). The proposal at issue in
that case provided that agency management, when monitoring employee
conversations with taxpayers, must notify the taxpayer that the call is
subject to monitoring. The Authority determined that the proposal
pertained to management action concerning the taxpayer and did not have
any direct effect on the employee. Consequently, the Authority
determined that the proposal was outside the duty to bargain because it
did not directly relate to the conditions of employment of unit
employees. Similarly, by requiring the OIG to notify all "parties" to
an investigation, Section (g) at issue herein concerns management action
with respect to those parties, i.e., providing them with information,
rather than the conditions of employment of unit employees. Therefore,
for the reasons set forth in the Internal Revenue Service decision,
Section (g) herein does not directly relate to the conditions of
employment of unit employees and is outside the duty to bargain under
the Statute.
Section (i) of the Union's proposal would require the Agency to
reimburse employees for expenses incurred in defending themselves in
connection with an OIG investigation, if those employees are shown to be
innocent or charges against them are dropped. In this regard, the Union
states that Section (i) is intended to provide for, among other things,
reimbursement of attorney fees and legal costs. /12/ The Agency
contends that, in the absence of express statutory authority, it is
prevented from making such expenditures and, thus, that Section (i) is
outside the duty to bargain under section 7117(a)(1) of the Statute
because it is inconsistent with law. /13/
In agreement with the Agency, the Authority finds that the
expenditure of funds by a Federal Government agency to reimburse
litigation costs of a party prevailing against the Government must be
pursuant to a statutory authorization. See Alyeska Pipeline Service Co.
v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141
(1975); Howatt v. United States, 657 F.2d 1204, 1209 (Ct. Cl. 1981);
Nibali v. United States, 634 F.2d 494, 496 (Ct. Cl. 1980). However, the
Union has not indicated, and the Authority has not discovered, any
statutory authority permitting an agency to reimburse attorney fees and
legal costs incurred by an employee in connection with an internal
agency investigation involving that employee. /14/ Such expenses are
the personal responsibility of the employee. Thus, by requiring the
Agency to expend funds in the absence of statutory authority, Section
(i) is inconsistent with law and outside the duty to bargain under
section 7117(a)(1) of the Statute. Accord Matter of Julian C.
Patterson, 61 Comp.Gen. 412 (1982); Matter of Manzano and Marston, 55
Comp.Gen. 1418 (1976); 52 Comp.Gen. 859 (1973); Comptroller General
Decision No. B-186763 (March 28, 1977).
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as to
Sections (a), (b), (e), (f), (g), (h) and (i) of the Union's proposal
be, and it hereby is, dismissed. /15/
Issued, Washington, D.C., June 28, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Based on the record in this case, it does not appear the Agency
has alleged or otherwise disputed the negotiability of Section (c).
/2/ The Union claims that its proposals are negotiable under section
7106(b)(2) of the Statute as procedures governing the conduct of
Inspector General (IG) investigations.
/3/ Section 7114(b)(2) provides:
Sec. 7114. Representation rights and duties
* * * *
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
* * * *
(2) to be represented at the negotiations by duly authorized
representatives prepared to discuss and negotiate on any condition
of employment(.)
/4/ Sec. 3(a) of the Inspector General Act of 1978 provides as
follows:
Sec. 3. Appointment of Inspector General; supervision;
removal; political activities; appointment of Assistant
Inspector General for Auditing and Assistant Inspector General for
Investigations
(a) There shall be at the head of each Office an Inspector
General who shall be appointed by the President, by and with the
advice and consent of the Senate, without regard to political
affiliation and solely on the basis of integrity and demonstrated
ability in accounting, auditing, financial analysis, law,
management analysis, public administration, or investigations.
Each Inspector General shall report to and be under the general
supervision of the head of the establishment involved or, to the
extent such authority is delegated, the officer next in rank below
such head, but shall not report to, or be subject to supervision
by, any other officer of such establishment. Neither the head of
the establishment nor the officer next in rank below such head
shall prevent or prohibit the Inspector General from initiating,
carrying out, or completing any audit or investigation, or from
issuing any subpoena during the course of any audit or
investigation.
/5/ S. REP. NO. 95-1071, 95th Cong., 2nd Sess. 7 (1978). See also at
2 of the Report the following statement.
The Inspector and Auditor General reports to, and is under the
general supervision of the head of the agency. However, the head
of the agency may not prohibit, prevent or limit the Inspector and
Auditor General from undertaking and completing any audits and
investigations which the Inspector and Auditor General deems
necessary, or from issuing any subpoenas deemed necessary in the
course of such audits and investigations.
See generally to the same effect remarks of congressional supporters
of the bill at 124 Cong. Rec. S 15870-1; 124 Cong. Rec. H 2949-50.
/6/ Section 7106(a)(1) provides, in relevant 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(.)
/7/ The Union, citing the decision of the U.S. Court of Appeals for
the District of Columbia Circuit in Department of the Treasury v.
Federal Labor Relations Authority, 707 F.2d 574 (D.C. Cir. 1983),
asserts that there is an inconsistency between the Authority's decision
as to the proposal cited above in the Immigration & Naturalization
Service case and its decision as to a proposal in National Treasury
Employees Union and Department of the Treasury, Internal Revenue
Service, 8 FLRA 136 (1982), remanded sub nom. Department of the
Treasury, supra. In its Department of the Treasury decision, the Court
remanded the proposals at issue therein to the Authority for
reconsideration in light of the Authority's Immigration & Naturalization
Service decision. During the pendency of the decision on remand before
the Authority, the Union withdrew the disputed proposals and the
Authority, as to those proposals, vacated its Decision and Order in the
case. National Treasury Employees Union and Department of the Treasury,
Internal Revenue Service, Order Vacating Decision and Order (August 10,
1983). Consequently, it is not necessary to consider further the effect
of that decision upon matters at issue herein.
/8/ The Union notes that employees have a constitutional right to
remain silent during an investigation which involves possible criminal
action against them. The Authority has acknowledged this right.
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 9 FLRA 983, 986 (1982). However, contrary to the
Union, Section (e) is not limited to criminal investigations.
/9/ Cf. Tidewater Virginia Federal Employees Metal Trades Council and
Navy Public Works Center, Norfolk, Virginia, 15 FLRA No. 73 (1984)
(provision providing for employees to remain silent when they believe a
discussion with management may result in action against them is outside
the duty to bargain under section 7106(a)(2)(A) and (B) because it would
preclude management from requiring employees to account for work
performance and conduct, as well as immunize employees from discipline
for refusing to account for such work performance or conduct).
/10/ "Conditions of employment" is defined in section 7103(a)(14) of
the Statute as follows:
Sec. 7103. Definitions; application
(a) For the purpose of this chapter--
* * * *
(14) "conditions of employment" means personnel policies,
practices, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions, except that such term
does not include policies, practices, and matters--
(A) relating to political activities prohibited under
subchapter III of chapter 73 of this title;
(B) relating to the classification of any position; or
(C) to the extent such matters are specifically provided for by
Federal statute(.)
/11/ The Union acknowledges that Section (g) concerns matters
pertaining to persons outside the bargaining unit: "(T)he effect on
non-bargaining unit employees is de minimus (sic), because they are
simply receiving written notification." Union Brief at 13-14.
/12/ Union Petition for Review at third unnumbered page: "These
(expenses) could include everything from copying costs to lawyers'
fees." The Union's subsequent disclaimer of an intent to cover such
expenses, Union Brief at 14, is not sufficient to alter the result
herein, since the plain language of the section clearly would include
them. In this regard, the Authority has consistently stated that it
will not adopt an interpretation of a proposal which is contrary to the
explicit language of that proposal. See, e.g., American Federation of
State, County and Municipal Employees, AFL-CIO, Local 2027 and ACTION,
Washington, D.C., 12 FLRA 643 (1983) (Union Proposal 2).
/13/ Section 7117(a)(1) of the Statute provides:
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 regulations.
/14/ Cf. 5 U.S.C. 7701(g) (payment of attorney fees for employee who
is prevailing party in case before Merit Systems Protection Board); 5
U.S.C. 504 (award of attorney fees and other expenses to a party
prevailing against United States in "adversary adjudication" before
Federal agency).
/15/ Based upon the result herein, it is unnecessary to consider the
Agency's additional contentions as to the nonnegotiability of the
Union's proposal.