27:0467(68)NG - AFGE National INS Council and INS -- 1987 FLRAdec NG
[ v27 p467 ]
The decision of the Authority follows:
27 FLRA No. 68 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL Union and U.S. IMMIGRATION AND NATURALIZATION SERVICE Agency Case No. 0-NG-1069 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This petition for review comes before 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 seven provisions of an agreement which were disapproved by the Agency head pursuant to section 7114(c) of the Statute. The Union's petition for review included fourteen additional provisions. After the petition for review was filed, the Agency withdrew its disapproval of thirteen of these provisions pursuant to the Union's stated meaning of those provisions. Thus, the petition for review is moot as to the following provisions: Article 13, E(3) and (4); Article 17H; Article 17M; Article 20E; Article 22C; Article 27C; Article 29E and G; Article 32V and D(2); Article 36F; Article 43G; Article 50; Article 56G(3); and Article 56E(3). Further, in its response to the Agency's Statement of Position, the Union withdrew its petition as to disputed language within Article 47D(3). Therefore, the petition is moot as to that issue as well. II. Provision 1 Article 13D: An employee may file a grievance pursuant to this Article within fifteen (15) days following: (1) the date of the alleged discriminatory incident, or (2) the date upon which the aggrieved became aware of the alleged discriminatory incident or situation; or (3) the date of the employee's final interview with the Equal Employment Opportunity Counselor. (Only the underscored portions are in dispute.) A. Positions of the Parties The Agency argues that when an employee chooses to initiate informal counseling with an Equal Employment Opportunity (EEO) counselor, the employee has made the election between the negotiated grievance procedure and a statutory procedure which is required by section 7121(d) of the Statute. /1/ According to the Agency, the disputed language is contrary to the Statute because it would permit an employee to obtain EEO counseling and then file a grievance under the negotiated procedure concerning the same matter. In support of its argument, the Agency asserts that the Equal Opportunity Employment Commission (EEOC) has exclusive regulatory authority in these matters under 42 U.S.C. Section 2000e-16(b) /2/ and that EEOC regulations in 29 C.F.R. Section 1613.214(a)(1)(i) and (ii) /3/ provide that a complainant begins an EEO action when counseling is initiated. The Agency also relies on an EEOC decision which states that "first contact with the counselor, notifying the counselor of the alleged discriminatory matter" initiates an action under EEOC regulations. Healy v. General Services Administration, EEO Appeal No. 01831645 (July 13, 1984). The Union contends that an EEO action is not initiated until an employee files a formal written complaint pursuant to 29 C.F.R. Section 1613.214. Thus, the disputed language is consistent with applicable law, the Union argues, as an employee would be able to choose the grievance process prior to initiating formal EEO procedures. In addition, the Union points out that the EEOC regulations cited by the Agency deal only with timeliness in filing an EEO complaint and do not define what constitutes the timely initiation of an action. B. Analysis The disputed language in Article 13D would permit an employee to file a grievance under the negotiated procedure within 15 days of the employee's final interview with an EEO Counselor. Therefore, under the provision an employee could grieve a matter which the employee had previously brought to the attention of an EEO counselor. However, the Statute provides in section 7121(d) that when an employee affected by a prohibited personnel practice under section 2302(b)(1), /4/ such as an allegation of discrimination, has raised the matter under a statutory procedure, the employee may not file a written grievance in the negotiated procedure concerning the same matter. /5/ Thus, the question raised in this negotiability dispute is whether consultation with an EEO counselor timely initiates the statutory EEO procedure. This issue was resolved by the Authority in U.S. Department of Justice, United States Marshals Service and International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA No. 60 (1986). In that case, which resulted from the filing of an exception to an arbitration award, the agency argued that the grievant had raised the matter he grieved in a prior consultation with an EEO counselor. The agency asserted that the award was barred by, and that it was consequently deficient as contrary to, section 7121(d). Without deciding whether the matter at issue was, in fact, the same, the Authority concluded that "a grievance timely filed in writing in accordance with the negotiated grievance procedure is only precluded or barred by the grievant having earlier raised the same matter by the timely filing of a formal written complaint, in accordance with 29 CFR Section 1613.214." United States Marshals Service, slip op. at 4, (emphasis added). In reaching this conclusion, we found that 29 C.F.R. part 1613 does not specify when an action concerning a matter of discrimination is raised under the EEO procedures. However, we noted that the EEOC has proposed to amend its regulations to provide at 29 C.F.R. Section 1613.219 that an election to proceed under EEO procedures is indicated only by the filing of a formal written complaint and that the use of the precomplaint process of 29 C.F.R. Section 1613.213 does not constitute an election of remedies. 51 Fed. Reg. 29482, 29483, 39488-89 (to be codified at 29 C.F.R. pt. 1613) (proposed Aug. 18, 1986). Additionally, we stated that one of the primary purposes of section 7121 is to preclude litigation of the same matter under the applicable statutory procedure and the negotiated grievance procedure. Since the precomplaint process is a predominantly informal, confidential, and conciliatory process, the avoidance of litigation in two forums is not served by barring grievances from the negotiated grievance procedure because employees have sought counseling under EEO procedures. C. Conclusion Based on the reasoning and analysis in United States Marshals Service, we conclude that the timely initiation of an action under the statutory EEO procedure occurs with the filing of a formal written complaint. Thus, Provision 1 is not inconsistent with the Statute and we hold that it is within the duty to bargain. III. Provisions 2 and 7 Provision 2, Article 13E(9) (Equal Employment Opportunity) and Provision 7, Article 57, G(9) (Sexual Harassment) are identical and state as follows: At any stage in the processing of an EEO complaint, the employee shall have the right to be accompanied, represented, and advised by a representative of his/her choosing. A. Positions of the Parties The Agency contends that these provisions are nonnegotiable because they intrude in an area over which the EEOC has exclusive regulatory authority pursuant to 42 U.S.C. Section 2000e-16(b). Further, the Agency asserts that no statutory right of representation exists at the counseling stage. The Union argues that the provisions are negotiable since they constitute an affirmation of rights already in existence under 29 C.F.R. Section 1613.214(b). B. Analysis and Conclusion The disputed provisions contain nearly the same language as 29 C.F.R. Section 1613.214(b). That section provides, in part, that "(a)tany stage in the presentation of a complaint, including the counseling stage under Section 1613.213, the complainant shall have the right to be accompanied, represented, and advised by a representative of his own choosing." Thus, these provisions are consistent with regulation and affirm existing rights of bargaining unit employees. In this regard, contrary to the Agency's assertion, it is noted that the regulations specifically provide for representation in the counseling stage of an EEO matter. The disputed provisions in this case are similar to those in American Federation of Government Employees, Local 2761 and U.S. Army Adjutant General Publication Center, St. Louis, Missouri, 17 FLRA 899 (1985) (Proposal 3). In that case, the union sought to negotiate two proposals stating that management was committed to the EEO program and would allocate necessary resources to the program, including a staff of trained EEO counselors. The Authority concluded that the proposals implemented and provided generalized support for the agency's EEO program consistent with law. Similarly, in this case, the provisions reinforce the rights of bargaining unit employees to representation in the EEO complaint process. Therefore, based on U.S. Army Adjutant General Publication Center, we find that the provisions are within the duty to bargain. See also Delaware Army and Air National Guard and Association of Civilian Technicians, Delaware Chapter, 16 FLRA 398, 402 (1984) (proposal stating that no position would be filled in any manner that would circumvent the EEO rights of any bargaining unit member held to constitute an affirmation of rights already in existence and to require the employer to act in a manner consistent with law). IV. Provision 3 Article 17K(2): Approved annual leave requests for sixteen (16) hours or more, once approved, will be cancelled only for valid operational reasons which require the employee not to take leave. Valid operational reasons include such matters as illness or death of another employee, directed details by authority outside the Service, special mission requirements which do not lend themselves to normal scheduling, and other events which create an actual necessity for personnel and not reasons which may make cancelling leave merely desirable. (Only the underscored portion is in dispute.) A. Positions of the Parties The Agency claims that Provision 3 interferes with its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work by unduly restricting its determination of when annual leave will be taken. In this regard, the Agency relies on Federal Personnel Manual (FPM) Letter 630-29 (Jan. 28, 1981) which states that agencies may fix the time at which leave is taken. Provision 3, according to the Agency, would require that management persuade an arbitrator that a business necessity existed for an employee's services before leave was cancelled. Since management must schedule and approve annual leave early in the calendar year under the parties' collective bargaining agreement, the Agency asserts the arbitration requirement would prevent it from considering contingencies that might arise after leave was approved. The Union responds that Provision 3 does not conflict with management's unilateral discretion to cancel approved annual leave. In support of its argument, the Union asserts that the standard established in Provision 3 is consistent with FPM Letter 630-29. Furthermore, the Union states that the provision does not require arbitration prior to a leave cancellation. B. Analysis Contrary to the Agency's argument, we find that Provision 3 does not set a precondition on management's right to cancel annual leave. The language of the provision does not require arbitration before management cancels approved annual leave. Moreover, there is no information in the record to support the Agency's contention that the provision would require it to arbitrate before it cancels an employee's leave. In agreement with the Union, we find that the standard in Provision 3, that approved annual leave for sixteen hours or more may be cancelled "only for valid operational reasons," is consistent with Office of Personnel Management (OPM) guidance in FPM Letter 630-29. That letter states in section 2: Denial of a leave request or cancellation of approved leave normally needs to be based on the necessity for the employee's services. Leave must not be denied or cancelled for arbitrary or capricious reasons. Denial or cancellation of leave is not disciplinary in character and must not be used as a punitive measure. In our view, Provision 3 requires that management make the same determination that is required by the standard in the cited FPM letter. That is, management must consider whether an employee's services are needed for operational reasons before cancelling approved annual leave. Furthermore, the examples of "valid operational reasons" in Provision 3 make it clear that management is able to reconsider annual leave which it previously approved. Changed circumstances, such as an unexpected lack of personnel to perform work, unanticipated assignments, and similar contingencies which were unknown to management when leave was approved would constitute "valid operational reasons" for leave cancellation. After consideration of the above factors, we conclude that the disputed portion of Provision 3 does not restrict management's discretion to determine when leaved will be taken. Compare American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, the U.S. Army Information Systems Command-Redstone Arsenal Commissary, 27 FLRA No. 14 (1987) (provision requiring an agency to approve an annual leave request submitted because of an employee's dire physical, family, or other personal emergency regardless of its need to assign overtime work held nonnegotiable because it excessively interfered with management's right to assign work); American Federation of Government Employees, AFL-CIO, Local 2263 and Department of the Air Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580, 583 (1984) (Proposal 4) (proposal held nonnegotiable because it left management no discretion to deny an employee's leave request if the request was clearly documented). C. Conclusion In these circumstances, we hold that Provision 3 does not interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and is within the duty to bargain. V. Provision 4 Article 24D(1) and (2): (1) The Service will make every effort to accommodate the practice of religious beliefs by individual employees as consistent with the needs of the Service. Employees who are required to be absent for some period of the workday because of religious observance or belief, may elect to work compensatory overtime as a substitute for the time off, or take appropriate leave. (2) The employer shall grant compensatory time off to an employee requesting such time off, and shall in each instance afford the employee the opportunity to work compensatory overtime in order to repay the compensatory time off. A request may be disapproved, however, if the requested change in work schedule would interfere with the ability of an organization to efficiently accomplish its mission. In such circumstances, there is no obligation to approve requests for time off for religious observances. (Only the underscored portions are in dispute.) A. Positions of the Parties The Agency contends that Provision 4 conflicts with its right to assign work under section 7106(a)(2)(B) of the Statute because subsection D(1) mandates that leave be granted for religious reasons at a particular time. Moreover, the standard for review, according to the Agency, is inconsistent with, and presumably stricter, than the "undue hardship" standard set forth in 42 U.S.C. Section 2000e(j), the Civil Rights Act of 1964, as amended. Additionally, the Agency asserts that the provision would subject management's decisions regarding its need for an employee's services to arbitral review. The Union claims that the provision does not mandate that leave be granted to accommodate employees' religious beliefs because subsection D(2) specifically states that requests may be disapproved. Further, the Union argues that the provision's "efficient accomplishment of mission" standard is consistent with the "undue hardship" standard of 42 U.S.C. Section 2000e(j). B. Analysis Considering the disputed subsections together, we conclude that subsection D(1) does not mandate that management grant leave or compensatory time off at a particular time to an employee to accommodate the practice of religious beliefs. Rather, the language "make every effort" in subsection D(1) is limited by the standard set forth in subsection D(2) which states that leave may be disapproved if the requested change would interfere with the ability of the organization to efficiently accomplish its mission. Moreover, the language at D(1) refers to the "needs of the Service." Therefore, in disagreement with the Agency, we find that management retains discretion under Provision 4 to determine whether an employee's request for leave or compensatory time will be approved. Also, contrary to the Agency's assertions, we see no conflict between the standard in the disputed provision and the "undue hardship" test in 42 U.S.C. Section 2000e(j), the Civil Rights Act of 1964. The latter standard requires employers including Federal agencies, to "reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business." In addition, in 1978 Congress required that OPM establish regulations providing for compensatory time off for religious observances. See 5 U.S.C. Section 5550a. The standard in subsection D(2) is essentially the same as that established by OPM in 5 C.F.R. Section 550.1002(b) which states as follows: To the extent that such modifications in work schedules do not interfere with the efficient accomplishment of an agency's mission, the agency shall in each instance afford the employee the opportunity to work compensatory overtime and shall in each instance grant compensatory time off to an employee requesting such time off for religious observances when the employee's personal religious beliefs require that the employee abstain from work during certain periods of the workday or workweek. (Emphasis added.) In our view, the Government-wide regulation concerning work schedule changes to accommodate employees' personal religious beliefs applies the broader religious accommodation provision of the Civil Rights Act. Inasmuch as Provision 4 incorporates the standard found in a Government-wide regulation, the Agency's argument that the standard is inappropriate cannot be sustained. It is noted that the Authority has consistently held nonnegotiable proposals which establish a standard different from that found in 5 C.F.R. Section 550.1002(b). Federal Union of Scientists and Engineers, Local R1-144 and Department of the Navy, Naval Underwater Systems Center, 26 FLRA No. 67 (1987) (proposal requiring an agency to grant compensatory time off unless it "would seriously interfere with the accomplishment of the activity's mission"). See also American Federation of Government Employees, AFL-CIO, Local 1923 and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 17 FLRA 543, 544 (1985); American Federation of Government Employees, AFL-CIO, Local 2263 and Department of the Air Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580, 584 (1984) (Proposal 5). Additionally, the Agency argues that the provision is nonnegotiable because it would subject management decisions regarding accommodation for religious observances to the grievance procedure and permit the substitution of an arbitrator's judgment for that of management. We reject this argument based on section 7103(a)(9)(C)(ii) of the Statute which defines a grievance to include "any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment." As discussed above, provision for a change in work schedules for religious observances and a standard to evaluate management's decisions on employees' requests is part of a Government-wide regulation. Therefore, regardless of whether the disputed language becomes part of the contract, a management decision concerning leave or a change in work schedule is a grievable matter under section 7103. See National Treasury Employees Union and Internal Revenue Service, 3 FLRA 693 (1980) (laws affecting conditions of employment are encompassed within the definition of "grievance" under section 7103(a)(9) and thus are within the scope of a negotiated procedure under section 7121). C. Conclusion We conclude that the disputed language in Provision 4 does not conflict with the Agency's right to assign work at a particular time under section 7106(a)(2)(B) of the Statute. In these circumstances, we find that the disputed portions in Provision 4 are within the duty to bargain. V. Provision 5 Article 38D: The Service will attempt to minimize actions that adversely affect employees which often follow reduction-in-force by using, to the extent feasible, attrition to accomplish reductions. All reductions-in-force will comply with applicable laws and regulations. Article 38J: The Service will attempt to minimize actions that adversely affect employees which often follow a reduction-in-force by using, to the extent possible, attrition to accomplish reductions. In the event career or career-conditional employees are separated by reduction-in-force, the Service will refer these names to the Department of Justice for inclusion on the appropriate reemployment priority list in accordance with governing regulations. Employees will be given preference for reemployment consistent with governing regulation. (Only the underscored portions are in dispute.) A. Positions of the Parties The Agency contends that the disputed language violates management's rights to determine its organization under section 7106(a)(1) of the Statute; to hire, layoff, and retain employees pursuant to section 7106(a)(2)(A); to determine the personnel by which agency operations shall be conducted under section 7106(a)(2)(B); and, to fill positions from any appropriate source under section 7106(a)(2)(C) of the Statute. Further, the Agency maintains that the provision is nonnegotiable under section 7117(a)(1) of the Statute because it conflicts with FPM chapter 335, Subchapter 1-4, Requirement 4, by preventing management from using any appropriate source for selections. The Union argues that the disputed language constitutes a procedure and an appropriate arrangement within the meaning of sections 7106(b)(2) and (3) respectively and does not prevent the Agency from "acting at all." Further, the Union asserts that FPM chapter 335 permits an agency to reassign employees following a reassignment which is the result of a reduction in force (RIF). B. Analysis The disputed portions of Provision 5 would require that the Agency use attrition, to the extent feasible, to accomplish reductions in staffing prior to conducting a RIF. In this regard, the provision is to the same effect as Proposals 1 and 2 in Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA No. 21 (1987). In that case, the Authority found that the language "to the extent that it is practicable" and "whenever possible" mandated that the agency exhaust other cost-saving methods, including attrition, before conducting a RIF and prevented the agency from exercising its section 7106(a)(2)(A) right to layoff employees without using alternative cost-saving measures first. We also concluded that the cost-saving methods suggested in these proposals interfered with the management right to determine the personnel by which agency operations would be conducted under section 7106(a)(2)(B) of the Statute. However, we found that the requirement that the agency utilize attrition and other cost-saving measures did not excessively interfere with management's exercise of its rights and thus constituted appropriate arrangements under section 7106(b)(3) for employees who would be adversely affected by a RIF. /6/ Therefore, for the reasons set forth more fully in Congressional Research Service and the cases cited in that decision, we conclude that Provision 5 is negotiable as an appropriate arrangement under section 7106(b)(3). The Agency also asserts that the provision is nonnegotiable because it conflicts with a Government-wide regulation -- Requirement 4 of FPM chapter 335, which grants management the right to select from any appropriate source. In this regard, the Agency interprets the provision as requiring management to fill vacancies by reassignment to avoid laying off employees. However, there is nothing in the language of the provision which dictates that management must reassign employees to accomplish reductions. Rather, the provision speaks specifically of utilizing attrition to avoid RIFs. Moreover, the Union states that the provision was not intended to prevent management from hiring from sources other than employees who might be adversely affected by a RIF. Petition for Review at page 2. In these circumstances, we conclude that the provision does not concern management's right to fill vacancies from any appropriate source and reject the Agency's argument that Provision 5 is inconsistent with a Government-wide regulation. C. Conclusion Based on the reasoning and analysis above, we conclude that the disputed portions of Provision 5 are within the duty to bargain as appropriate arrangements to assist employees adversely affected by a RIF. VI. Provision 6 Article 38K If, as a result of a reduction-in-force or a transfer of function, an employee is reassigned to a new position, he will be given a reasonable period of time to attain satisfactory performance. If the employee cannot attain satisfactory performance, reasonable efforts will be made to make a new assignment at the same grade level. (Only the underscored sentence is in dispute.) A. Positions of the Parties The Agency contends that the disputed sentence bars the exercise of management's right to hire, remove, demote, or reassign under section 7106(a)(2)(A) of the Statute. The Agency also maintains that the sentence is inconsistent with 5 U.S.C. Section 4302(b)(6) as it prevents management from taking action for unacceptable performance. Finally, the Agency argues that the disputed sentence violates management's right to make selections under section 7106(a)(2)(C) of the Statute. The Union argues that the disputed sentence is both a procedure and appropriate arrangement within the meaning of sections 7106(b)(2) and (3), respectively. Further, the Union states that an agency may reassign an employee who was reassigned during a RIF consistent with FPM chapter 351 and 5 U.S.C. Section 4303. B. Analysis We find that the disputed sentence in Provision 6 would require the Agency to reassign an employee who is unable to perform acceptably and who is occupying a position as a result of an earlier RIF or transfer of function. While the phrase "reasonable efforts will be made" does not specifically require the Agency to reassign an employee whose performance is unacceptable, management's implementation of the provision would be mandatory rather than discretionary. That is, the practical consequences of the second sentence would be that in nearly all instances where a vacancy existed for which an affected employee qualified, the Agency would be obligated to reassign the employee. See National Federation of Federal Employees, Local 943 and Department of the Air Force, Headquarters Kessler Technical Training Center, Kessler Air Force Base, Mississippi, 19 FLRA 949, 951 (1985) (Proposal 2) (proposal requiring management to "assist" employees in finding assignments compatible with their medical condition held to require the reassignment of employees whenever possible). See also American Federation of Government Employees, AFL-CIO, National Border Patrol Council and Department of Justice, Immigration and Naturalization Service, 16 FLRA 251, 252 (1984) (holding that the phrase "to the maximum extent possible" does not leave an agency discretion to exercise its rights to direct employees and assign work); American Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446, 450-52 (1983) (holding that the phrase "to the extent practicable" places substantive limitation on agency's right to identify critical elements). Since our conclusion is that the Agency's implementation of the disputed sentence in Provision 6 would be mandatory, we find that the sentence is to the same effect as the proposal held to be nonnegotiable in National Labor Relations Board Union and National Labor Relations Board, Office of the General Counsel, 18 FLRA 320 (1985). In that case, the proposal would have required the agency to reassign an employee in every instance prior to removing or reducing the employee in grade. The Authority found that the proposal directly interfered with management's rights under section 7106(a)(2)(A) in situations in which an employee's performance was unacceptable and therefore the proposal did not constitute a procedure within the meaning of section 7106(b)(2) of the Statute. In addition, the Authority determined that the proposal would not protect the needs of management to decide whether to fill vacancies or to determine what remedial actions were commensurate with a particular employee's performance deficiencies. The Authority concluded that the proposal interfered with management's rights under section 7106(a)(2)(A) to an excessive degree and therefore was not an appropriate arrangement under section 7106(b)(3). In reaching this conclusion, the Authority stated that the proposal concerned employees who management had determined were unable or unwilling to perform the duties of their positions at an acceptable level. Furthermore, it was noted that under 5 U.S.C. Section 4302(b)(6) an employee has an opportunity to demonstrate acceptable performance before action may be taken against that employee. /7/ National Labor Relations Board at 324. The second sentence in Provision 6 in this case, like the proposal in National Labor Relations Board, directly interferes with management's right to remove or reduce in grade an employee whose performance is unacceptable. Therefore, the second sentence in Provision 6 also does not constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. American Federation of Government Employees, Local 1923 v. FLRA, No. 86-1297, slip op. 7-8 (D.C. Cir. May 19, 1987) aff'g on other grounds American Federation of Government Employees, Local 1923, AFL-CIO and Department of Health and Human Services, Office of the Secretary, Headquarters, Office of the General Counsel, Social Security Division, 21 FLRA No. 28 (1986) (Proposal 6)). We turn now to whether the disputed sentence is an appropriate arrangement. In this regard, the Union states that its intent in Provision 6 is to ameliorate the adverse affects of reassignments which occurred as a result of a RIF or transfer of function. However, we note that under the disputed language the Agency would be unable to decide whether to fill vacancies as well as to determine its course of action if management decided that an employee's performance was unacceptable. Thus, like the proposal in National Labor Relations Board, we find that the second sentence of Provision 6 also excessively interferes with management's rights under section 7106(a)(2)(A). C. Conclusion We hold, based on the reasoning and analysis in National Labor Relations Board, that the disputed sentence in Provision 6 does not constitute a negotiable procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3) and therefore is not within the duty to bargain. VII. Order The Agency must rescind its disapproval of Provisions 1, 2, 3, 4, 5, and 7 which were bargained on and agreed to by the parties at the local level. /8/ The petition for review as to Provision 6 is dismissed. Issued, Washington, D.C., June 23, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Section 7121(d) of the Statute, in part, provides: An employee shall be deemed to have exercised his option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs first. (2) 42 U.S.C. 2000e-16(b) provides: Except as otherwise provided in this subsection, the Equal Opportunity Commission shall have authority to enforce the provisions of subsection (a) of this section through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section, and shall issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section . . . . (3) 29 C.F.R. Section 1613.214 provides as follows: Section 1613.214 Filing and presentation of complaint. (a) Time limits. (1) An agency shall require that a complaint be submitted in writing by the complainant or his representative and be signed by the complainant. The complaint may be delivered in person or submitted by mail. The Agency may accept the complaint for processing in accordance with this subpart only if -- (i) The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter or, if a personnel action, within 30 calendar days of its effective date, and (ii) The complainant or his representative submitted his written complaint to an appropriate official within 15 calendar days of the date of his final interview with the Equal Employment Opportunity Counselor. (4) 5 U.S.C. 2302(b)(1) provides as follows: Prohibited personnel practices (b) An employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority -- (1) discriminate for or against any employee or applicant for employee -- (A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16); (B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a); (C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)); (D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or (E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation. (5) Although in this case, Article 13D does not specifically state that to "file a grievance" means to do so in writing, neither party has asserted that it does not. Also, filing a grievance in labor relations is generally understood to mean the submission of a written complaint. Therefore, we assume that in this dispute to "file a grievance" means to reduce a complaint to writing. (6) The Authority has determined that proposals which concern "arrangements" for employees adversely affected by the exercise of management rights are negotiable unless the arrangement excessively interferes with the exercise of those rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). (7) 5 U.S.C. 4302(b)(6). Provides as follows: reassigning reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. (8) In finding these provisions to be within the duty to bargain, we make no judgment as to their merits.