[ v55 p1081 ]

55 FLRA No. 176

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-203
(Union)

and

U.S. DEPARTMENT OF THE INTERIOR
U.S. FISH AND WILDLIFE SERVICE
HADLEY, MASSACHUSETTS
(Agency)

0-NG-2244

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

November 29, 1999

_____

Before the Auhority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of 9 proposals. [n2]  The Agency filed a statement of position and the Union filed a response. Because the Agency's statement of position was unclear as to its assertions that 5 of the proposals were inconsistent with law, the Authority ordered the Agency to supplement the record by fully stating its position in support of its allegations as to those proposals. The Agency then filed a supplemental submission and the Union filed a response to that submission. [n3]

      For the reasons that follow, we find that Proposals 3, 4, 5, and 6 are outside the duty to bargain, and we dismiss the petition for review as to those proposals. We find that Proposals 1, 2, 7, 8 and 9 are within the duty to bargain and order the Agency to bargain as to those proposals. [n4]

II.     Proposal 1  [n5]

7.04.00     Incentive Awards Program

. . . . .

7.04.02     Management agrees to allow each bargaining unit emplyee to select the form of award (cash, step increase, time off) when the employee is notified that he/she shall receive an award. A written request from the employee for the form of award is the only valid designation of the form of the award.

A.     Positions of the Parties

1.     Agency

      According to the Agency, Proposal 1 would require it to establish a "generic entity," the "award," which would "serve as the menu from which the employee would select the type of award s/he desires" and which the Agency would be required to "effect." Statement of Position at 51. The Agency claims that the proposal is inconsistent with the "award approval requirements" established in 5 C.F.R. Parts 430, 451, and 531 (Subpart E). Id. In particular, the Agency asserts that the proposal "is inconsistent with the criteria for [quality step increases (QSIs)]" under Subpart E. Id.

      The Agency also contends that the proposal directly and excessively interferes with management's [ v55 p1082 ] rights, under section 7106(a)(2)(A) and (B), to determine the standards that "employees must meet in order to be rewarded for superior performance[.]" Id. The Agency cites National Association of Government Employees, Local R4-17 and Veterans Administration Medical Center, Hampton, Virginia, 16 FLRA 992 (1984) (VAMC Hampton).

2.     Union

      According to the Union, under Proposal 1, if an employee is to receive an award, the employee will be allowed to select the form of that award, whether "money, time off, or QSI if appropriate." Union Response at 10. The proposal does not dictate which employees will receive awards or the amount to be awarded. The Union contends that the proposal does not establish what standards employees must meet in order to receive an award. In support of its position, the Union cites National Treasury Employees Union and Internal Revenue Service, 27 FLRA 132 (1987) (IRS) and National Treasury Employees Union, Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C., 14 FLRA 598 (1984), rev'd and remanded sub nom. NTEU v. FLRA, 813 F.2d 472 (D.C. Cir. 1987) (FDIC).

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      By its terms, Proposal 1 would allow employees to choose the form of award they will receive, once the Agency has determined that they will be given an award. The proposal specifies three forms of award: cash, step increase, and time off. The proposal does not define the phrase "step increase." However, the Union explains that the forms of award referenced in the proposal include a QSI. Where a proposal is silent as to a particular matter, a union's statement clarifying the matter will be adopted if it comports with the wording of the proposal. See, e.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996) (Laurel Bay). The Union's interpretation comports with the wording of the proposal. See, e.g., National Education Association, Overseas Education Association, Fort Rucker Education Association and U.S. Department of Defense, Domestic Dependent Elementary and Secondary Schools, Fort Rucker Dependents Schools, Fort Rucker, Alabama, 53 FLRA 941, 950 (1997) (Fort Rucker).

      The proposal is also silent as to other aspects of the Agency's decision to grant an award. In particular, the proposal does not prescribe the bases on which the Agency can grant an award and the Union does not address that aspect of the proposal. There is therefore no reason to interpret the proposal as allowing the Agency to grant an award on any basis other than those prescribed by law and regulation. However, the Union does explain that the proposal is not concerned with the Agency's decision as to which employees will receive an award, the amount of the award, or the criteria that would govern the decision to give an award. The Union's explanation comports with the wording of the proposal.

      The Union explains that, under the proposal, an employee can select cash, time off, or a QSI if appropriate. Given the Union's overall intent to preserve the Agency's discretion with respect to the granting of an award, it is reasonable to construe the phrase "if appropriate" as modifying the employee's right to select among any particular form of the award. Under this interpretation, the proposal would permit the employee to choose cash, time off, or a QSI only if the Agency has determined more than one of these awards are appropriate for the employee. Construed in this manner, the proposal would not permit the choice of a particular form of award if that award form would be inconsistent with law and regulation. Such a construction comports with the wording of the proposal.

      Consequently, we interpret Proposal 1 as allowing employees to choose among a specified group of award forms which the Agency has decided are appropriate for the employee. [n6]

2.     The Proposal is Not Inconsistent with Government-wide Regulation

      The Agency's reliance on 5 C.F.R. Part 430 (Part 430) is misplaced. Part 430 concerns the establishment of agency performance appraisal systems. It is related to awards only insofar as, under 5 C.F.R. Part 451 (Part 451) and 5 C.F.R. Part 531 (Part 531), an agency may grant employees an award based upon evaluation of their performance under Part 430. See, e.g., National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA 1265, 1295 (1997) (PTO). [ v55 p1083 ]

      5 C.F.R. § 531.504 provides that an agency may not be required to grant a QSI. [n7]  However, the proposal would require the Agency to grant an employee who is otherwise qualified for such an award a QSI only if the Agency has determined to make a QSI available as a choice to the employee. Therefore, the proposal does not require the Agency to grant a QSI where it has not decided it would do so, and as such, it is not inconsistent with 5 C.F.R. § 531.504. See PTO, 52 FLRA at 1295 (provision allowing employee who had been granted a QSI choice of a cash award instead was not inconsistent with 5 C.F.R. § 531.504 because it did not require the agency to grant a QSI). The Agency does not contend that the portions of the proposal providing that an employee can select cash or time off as the form of the award is inconsistent with 5 C.F.R. § 531.504 or any other Government-wide regulation. Consequently, we find that the proposal is not inconsistent with 5 C.F.R. § 531.504. [n8]

3.     The Proposal Does Not Affect Management's Rights to Direct Employees and Assign Work Under Section 7106(a)(2)(A) and (B) of the Statute

      The Agency misconstrues the effect of the proposal. The proposal would not determine either the standards that the Agency would apply to appraise employee performance or the criteria that would be applied to determine whether an employee's performance warrants an award. [n9]  The proposal provides only that when the Agency has determined to give an employee an award, and that more than one form of that award is appropriate, the employee may select from among those appropriate forms of that award. Contrary to the Agency, management's rights to direct employees and assign work do not extend to the decision to grant an award. See National Federation of Federal Employees, Local 1256 and Department of the Air Force, K.I. Sawyer Air Force Base, Michigan, 31 FLRA 1203, 1206-07 (1988) (proposals concerning incentive awards do not affect the right to direct employees and assign work). See also NTEU v. FLRA, 793 F.2d 371, 374 (D.C. Cir. 1986) (determination as to amount of award does not constitute an exercise of the rights to direct employees and assign work). Consequently, we conclude that the proposal does not affect management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and is within the duty to bargain.

III.     Proposal 2  [n10]

7.14.00     Transfer of Function

7.14.01     Management shall bargain with the Union when it proposes a transfer of function of one or more bargaining unit employees. Management agrees to not implement such changes until full written agreement has been reached. Negotiations over transfer of function shall follow the process under section 3.05.00.

A.     Positions of the Parties

1.     Agency

      The Agency interprets the first sentence of Proposal 2 (the proposal) as requiring it to treat a contemplated transfer of function as if it were substantively negotiable. According to the Agency, a transfer of function constitutes an exercise of management's rights, under section 7106(a)(2)(A), to assign and direct employees. The Agency also asserts that a transfer of function constitutes an exercise of management's right to assign work under section 7106(a)(2)(B). The Agency claims, therefore, that a transfer of function is not substantively negotiable.

2.     Union

      The Union claims that the proposal "simply requires that negotiations on the impact of the transfer of function on bargaining unit employees be completed prior to their transfer." Response at 10. According to the Union, the proposal is "nearly identical" to the principle that an agency must meet its bargaining obligation before making changes in conditions of employment to the maximum extent possible, as that principle was articulated in National Federation of Federal Employees, Local 1798 and Veterans Administration Medical Center, Martinsburg, West Virginia, 27 FLRA 239, 264 (1987), rev'd mem. sub nom. Veterans Administration Medical Center, Martinsburg, West Virginia v. FLRA, Case No. 87-1342 (D.C. Cir. 1988) and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466, 468-69 (1985). [ v55 p1084 ]

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      By its terms, Proposal 2 requires the Agency to bargain with the Union when the Agency proposes a transfer of function involving unit employees. The proposal is silent as to whether the obligation to bargain created by the proposal extends to the substance of the transfer of function decision or only to the impact and implementation of that decision. The Union claims that the proposal is intended to require the Agency to bargain on the impact of the Agency's transfer of function decision. As the Union's interpretation comports with the wording of the proposal, we construe the proposal as applying only to bargaining over the impact and implementation of the Agency's transfer of function decision. See, e.g., Laurel Bay, 51 FLRA at 737; Fort Rucker, 53 FLRA at 950.

2.     The Proposal Does Not Affect Management's Rights to Direct and Assign Employees under Section 7106(a)(2)(A) and to Assign Work under Section 7106(a)(2)(B)

      Even assuming that the Agency is correct in stating that a transfer of function constitutes an exercise of rights under section 7106(a)(2)(A) and (B) of the Statute, the Agency's claim that the proposal impermissibly affects those rights is based on a misinterpretation of the proposal. As set forth above, we construe the proposal to require bargaining only over the impact and implementation of the Agency's decision to transfer a function. No other grounds for finding the proposal outside the duty to bargain are argued by the Agency. Consequently, we find that Proposal 2 is within the duty to bargain. See, e.g., American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Typographic, Washington, D.C., 39 FLRA 557, 568-70 (1991).

IV.     Proposal 3  [n11]

8.11.0     Employee Monitoring

8.11.01     In light of recent case law, management shall not monitor employee's [sic] computer time as a method of measuring employee productivity or to record conversations employees have on the telephone.

A.     Positions of the Parties

1.     Agency

      According to the Agency, Proposal 3 would preclude it from measuring employee productivity by monitoring employees' use of the computer. The Agency asserts that the proposal would also preclude it from recording, and, presumably, monitoring or listening to, employees' telephone conversations. The Agency claims that the proposal excessively interferes with management's rights: (1) to determine its internal security practices under section 7106(a)(1); (2) to discipline employees under section 7106(a)(2)(A), because conducting investigations by monitoring telephone conversations constitutes an exercise of that right; and (3) to direct employees and assign work under section 7106(a)(2)(A) and (B), because measuring productivity for purposes of performance evaluation constitutes an exercise of those rights.

2.     Union

      According to the Union, insofar as the proposal pertains to the recording of telephone conversations, it requires the Agency to comply with Massachusetts law, Mass. Gen. Law, Chapter 272, Section 99 (Section 99), which requires that both parties consent to such recording. The Union contends that the Agency may not violate state law. Insofar as the proposal pertains to monitoring employee performance on the computer, the Union claims that the Authority held, in a "recent" case, which it does not cite, that an agency incorrectly instituted a program of monitoring computer key strokes. Union Response at 13. [ v55 p1085 ]

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      By its terms, Proposal 3 precludes the Agency from monitoring employees' computer time as a method of measuring their productivity. Neither party further explains how it interprets this portion of the proposal. Consistent with its plain wording, the proposal would preclude the Agency from gathering information about the amount of time that employees spend using their computers and using that information to evaluate their productivity.

      Proposal 3 also precludes the Agency from recording employee telephone conversations. The Union's brief discussion of this portion of the proposal addresses only the recording of such conversations. The Agency interprets the proposal to preclude it from listening in on or monitoring phone conversations as they occur. As noted above, we base our interpretation of the meaning of a proposal on the wording of the proposal and the union's statement of intent which comports with the wording. In this regard, because the wording, and the Union's explanation, of the proposal concern only making a recording, we reject the Agency's interpretation that the proposal precludes it from listening in on or monitoring phone conversations as they occur.

      In sum, we interpret Proposal 3 as precluding the Agency from: (1) monitoring the amount of time that employees spend using their computers for the purpose of evaluating their productivity; and (2) recording employee phone conversations.

2.     The Proposal Affects Management's Right to Direct Employees and Assign Work under Section 7106(a)(2)(A) and (B) of the Statute

      Proposals that preclude management from using a particular method of monitoring employees' work performance affect management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See, e.g., American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, Chula Vista District, San Diego, California, 38 FLRA 244, 247-48 (1990). In particular, proposals that prohibit management from using information derived from its computer system to monitor employee production have been held to directly interfere with these rights. See, e.g., National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C., 44 FLRA 637, 665-70 (1992) (Hydrographic/Topographic Center). Proposal 3, in part, prohibits the Agency from monitoring the amount of time employees use their computers and using that information for the purpose of evaluating their productivity. Consistent with Hydrographic/Topographic Center, therefore, the portion of the proposal pertaining to computer monitoring affects management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

      Because the Union does not claim that the portion of the proposal pertaining to computer monitoring is within the duty to bargain under section 7106(b), we do not address whether that section applies to the proposal. See, e.g., American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, 53 FLRA 606, 612 (1997) (Army Aviation Center). In addition, the Union does not cite, and we are not aware of, the "recent case law" referenced in the proposal. Therefore, we do not address this issue further.

      Consequently, consistent with Hydrographic/Topographic Center, we conclude that, to the extent Proposal 3 concerns computer monitoring, it is outside the duty to bargain because it affects the exercise of management's rights under section 7106(a)(2)(A) and (B) of the Statute.

3.     The Proposal Affects Management's Right to Discipline Employees under Section 7106(a)(2)(A) of the Statute

      Management's right to discipline employees under section 7106(a)(2)(A) of the Statute includes the right to investigate to determine whether discipline is justified. See, e.g., Portsmouth Federal Employees Metal Trades Council and Portsmouth Naval Shipyard, 34 FLRA 1150, 1156-58 (1990), quoting National Federation of Federal Employees v. FLRA, 801 F.2d 477, 480 (D.C. Cir. 1986). Proposals that limit an agency's use of an appropriate investigative technique to uncover conduct subject to disciplinary actions directly interfere with management's right to discipline. See, e.g., National Association of Government Employees, Local R5-82 and U.S. Department of the Navy, Navy Exchange, Naval Air Station, Jacksonville, Florida, 43 FLRA 25, 30-31 (1991) (Naval Air Station, Jacksonville). In particular, proposals that preclude an agency from using telephone calls as a means of investigating employee conduct directly interfere with management's right to discipline. See, e.g., id.; American Federation of Government Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia, [ v55 p1086 ] 30 FLRA 837, 843-44 (1987) (FCI, Petersburg). Although Naval Air Station, Jacksonville and FCI, Petersburg involved making telephone calls as a way of gathering information, and Proposal 3 involves recording telephone calls for the same purpose, the difference is not significant in terms of whether telephone monitoring is an appropriate investigative technique for uncovering conduct subject to discipline.

      Because the portion of Proposal 3 pertaining to employee telephone conversations precludes the Agency from recording such conversations, that portion of the proposal affects management's right to determine the investigative techniques it will use to uncover employee conduct subject to discipline. Consequently, that portion of the proposal affects management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Because the Union does not claim that the portion of the proposal pertaining to employee telephone conversations is within the duty to bargain under section 7106(b), it is not necessary to address that section. See Army Aviation Center, 53 FLRA at 612.

      The exercise of management's rights under section 7106(a)(2) of the Statute is limited by "applicable laws." See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 388-91 (1991), enforcement denied on other grounds, 966 F.2d 1246 (D.C. Cir. 1993). Proposals that require an agency to exercise its management's rights in accordance with applicable laws are within the duty to bargain. The Union's claim that the proposal requires the Agency to comply with Section 99 is tantamount to a claim that Section 99 constitutes an "applicable law" limiting management's right under section 7106(a)(2)(A) to determine its investigative techniques. The issue presented by the Union's claim is whether a Federal agency's choice of investigative techniques pursuant to its right to discipline employees under section 7106(a)(2)(A) of the Statute may be subjected to state law.

      The relation between Federal and state law is governed by the Supremacy Clause of the United States Constitution, Article VI, clause 2, which provides that the laws of the United States "shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Additionally, "[a] corollary to [the Supremacy Clause] is that the activities of the Federal Government are free from regulation by any state." Mayo v. United States, 319 U.S. 441, 445 (1943). Further, it is "well settled" that the activities of Federal instrumentalities are "shielded by the Supremacy Clause from direct state regulation unless Congress provides `clear and unambiguous' authorization for such regulation." Goodyear Atomic Corporation v. Miller, 486 U.S. 174, 180 (1988). See also McFalls v. Office of Personnel Management, 72 MSPR 252, 261 (1996) (the Merit Systems Protection Board (MSPB) "is a Federal administrative tribunal established to adjudicate claims arising under applicable Federal statutes and regulations. . . . Therefore, it generally must follow Federal law, rather than state law.")

      The Union cites no Federal statute clearly and unambiguously authorizing state regulation of telephone surveillance conducted by Federal agencies. Under the Supremacy Clause, therefore, section 99 would not apply to the recording of telephone conversations as provided by Proposal 3. For that reason, section 99 is not an "applicable law" that limits management's choice of investigative techniques pursuant to its right to discipline employees under section 7106(a)(2)(A) of the Statute. Because Proposal 3 is not an appropriate limitation under section 7106(a)(2), it affects management's right to discipline under section 7106(a)(2)(A) of the Statute.

      Accordingly, we find that insofar as Proposal 3 pertains to, and completely precludes, recording employee telephone conversations it is outside the duty to bargain. Because this portion of the proposal is outside the duty to bargain under section 7106(a)(2)(A), it is unnecessary to address the Agency's claims regarding management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

V.     Proposal 4

13.01.07     Management shall not contract out its functions, if positions in those functions are to be abolished or downgraded, for one year after the effective date of the RIF.

A.     Positions of the Parties

1.     Agency

      The Agency interprets Proposal 4 as precluding it from contracting out any function in which positions have been abolished or employees downgraded for one year after the effective date of any RIF in that function. According to the Agency, in conducting a RIF, it may eliminate positions so that a contractor can take over a function. The Agency asserts that by delaying the implementation of the RIF, the proposal requires the Agency either to cease operation of that function for a year, even though it had decided to contract out the function, or to staff the function with temporary employees for a year. [ v55 p1087 ]

      The Agency claims that, by imposing substantive criteria on management's decision to conduct a RIF, the proposal directly and excessively interferes with management's rights, under section 7106(a)(2)(B), to assign work, to determine the personnel by which work will be performed, and to make determinations with respect to contracting out. According to the Agency, each of these rights includes the right to determine when the right will be exercised. Further, the Agency contends that the requirement of section 7101(b) that the Statute be interpreted in a manner consistent with an "effective and efficient Government" means that the Agency should be able to give prompt effect to its decision to contract out.

2.     Union

      According to the Union, the proposal does not prevent the Agency from contracting out a function and preserves the Agency's discretion to take whatever action is necessary during the one-year period prescribed. Based on American Federation of Government Employees, Local No. 12 and U.S. Department of Labor, 25 FLRA 987, 999-1000 (1987) (DOL) (Chairman Calhoun dissenting), the Union contends that the proposal is "tantamount to a stay in management's right to contract out its functions[,]" which does not prevent the Agency from "'acting at all.'" Union Response at 15. Contrary to the Agency, the Union claims that such a stay does not constitute a substantive criterion that interferes with management's rights.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      Proposal 4 precludes the Agency from contracting out any of its functions for one year after a RIF, if the positions in those functions are to be abolished or downgraded. As the Union interprets the proposal, it would establish a one year stay of the Agency's decision to contract out a function which had been subject to a RIF, but would not prevent the Agency from ultimately contracting out that function. This interpretation comports with the wording to the proposal. The Union also interprets the proposal as preserving the Agency's discretion to take necessary actions during the period of the stay. This interpretation is inconsistent with the wording of the proposal prohibiting contracting out during that period. The Authority does not adopt a union's explanation of a proposal that is inconsistent with the wording of the proposal. See, e.g., International Federation of Professional and Technical Engineers, Local 3 and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 51 FLRA 451, 459 (1995) (Philadelphia Naval Shipyard).

      Consequently, we interpret Proposal 4 as establishing a stay that would prevent the Agency from contracting out any of its functions that had been subject to a RIF during a one-year period after the effective date of the RIF, where positions in those functions are to be abolished or downgraded, but would not prevent contracting out after the termination of the stay.

2.     The Proposal Affects Management's Right to Make Determinations with Respect to Contracting Out under Section 7106(a)(2)(B) of the Statute

      The Authority has previously ruled on contract language substantially identical to Proposal 4. See, e.g., National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia, 49 FLRA 874, 890 (1994) (National Guard Bureau), citing American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 48 FLRA 168, 174 (1993) (Fort Carson). In Fort Carson, the Authority found that, because the provision prescribed when a management right could be exercised, it directly interfered with management's right under section 7106(a)(2)(B) to make determinations with respect to contracting out and was outside the duty to bargain. In DOL, on which the Union relies, the Authority found the proposal to be within the duty to bargain because it delayed, but did not prevent, the exercise of management's right to contract out. For the following reasons, we adhere to the precedent established in Fort Carson and relied on in National Guard Bureau. To the extent that DOL is inconsistent with that precedent, it will no longer be followed.

      Specifically, in Fort Carson, the Authority adopted the view of the Court of Appeals for the District of Columbia Circuit that a proposal prescribing when a management right may be exercised affects the exercise of that right. Fort Carson, 48 FLRA at 174, citing Department of the Treasury, Internal Revenue Service v. FLRA, 862 F.2d 880, 882 (D.C. Cir. 1988), reversed and remanded as to other matters, 494 U.S. 922 (1990); United States Customs Service, Washington, D.C. v. FLRA, 854 F.2d 1414, 1419 (D.C. Cir. 1988). The Authority stated that "proposals precluding an agency from exercising a management right unless or until other events [occur] directly interfere with the exercise of that right." Id. Under the principles adopted in Fort Carson, therefore, the Authority's earlier decision in DOL, relied on by the Union, will no longer be followed to the extent it holds that delay of the exercise of a man- [ v55 p1088 ] agement right does not affect that right within the meaning of section 7106(a). [n12]

      Consistent with the foregoing Authority precedent, because Proposal 4 determines when management may exercise its right to contract out, we find that it affects that management right. The Union does not claim that Proposal 4 is a procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3) and thus, we do not address those issues. [n13]  Accordingly, we find that Proposal 4 is outside the duty to bargain because it affects management's right to contract out under section 7106(a)(2)(B) of the Statute.

VI.     Proposal 5

13.01.08     Management shall negotiate with the Union to determine whether a hiring freeze is needed to protect reemployment rights of employees and to establish a freeze board to determine when [a] freeze is to end.

A.     Positions of the Parties

1.     Agency

      In its allegation of nonnegotiability, the Agency claims that Proposal 5 excessively interferes with management's right to hire, under section 7106(a)(2)(A), and its right, with respect to filling positions, to make selections, under section 7106(a)(2)(C).

      In its supplemental submission, the Agency argues that the proposal is not sufficiently specific to permit the Authority to render a negotiability determination. In the alternative, the Agency claims that, by requiring negotiations on whether to impose a hiring freeze, the proposal interjects the Union into the Agency's decision-making process whereby the Agency exercises its right to hire, under section 7106(a)(2)(A), and its right to make selections in filling positions, under section 7106(a)(2)(C).

2.     Union

      In its Petition for Review, the Union contends, based on National Federation of Federal Employees (NFFE), Local 1332 and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, Virginia, 3 FLRA 611 (1980), that the proposal does not interfere with management's rights.

      In its response to the Agency's supplemental submission, the Union claims that the proposal is sufficiently specific for purposes of Authority review. As to the proposal's effect on management's rights, according to the Union, "[a]t best, the proposal would delay the filling of any positions from sources outside the [A]gency for a period of time to be determined by the freeze board in order to protect the reemployment rights of bargaining unit employees." Response to Supplemental Submission at 2. In this regard, the Union argues that the proposal is an appropriate arrangement for employees adversely affected by the exercise of management's rights. The Union also argues that the proposal is a matter pertaining to the numbers, types, and grades of employees assigned to any organizational subdivision, work project or tour of duty and, thus, is mandatorily negotiable under Executive Order 12,871.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      In agreement with the Union, we find that the proposal is sufficiently specific for us to render a negotiability determination. By its terms, Proposal 5 requires the Agency to bargain on whether to impose a hiring freeze to protect employees' reemployment rights and on the establishment of a board to determine when such a freeze would end. Although the Union does not explain the phrase "hiring freeze," the Authority has construed that phrase in other cases as precluding an agency from hiring persons from outside the agency to fill unit positions. See, e.g., Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters, 120th Fighter Interceptor Group (ADTAC), 20 FLRA 717, 729 (1985) (120th Fighter Interceptor Group (ADTAC)), petition for review denied mem., 809 F.2d 930 (D.C. Cir. 1987). The terms of the proposal indicate that such a hiring freeze would be designed to preserve unit vacancies to be filled from the Agency's reemployment list. Therefore, the proposal would subject to bargaining the Agency's decision whether to forgo filling vacant unit positions by hiring from outside the Agency in order to preserve those vacancies to be filled from the reemployment list. [ v55 p1089 ]

      In addition, the proposal provides that if a hiring freeze is negotiated, it would last until a "freeze board" determines that it should be terminated.

2.     The Proposal Affects Management's Rights to Hire under Section 7106(a)(2)(A) and Select under Section 7106(a)(2)(C) of the Statute

      A proposal that prevents an agency from hiring persons from outside the agency, as in a hiring freeze, affects the exercise of management's right to hire under section 7106(a)(2)(A) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 3186 and Department of Health and Human Services, Office of Social Security Field Operations, Philadelphia Region, 23 FLRA 230, 234 (1986). Consequently, by requiring the Agency to bargain over its decision whether or not to hire persons from outside the Agency, Proposal 5 affects management's right to hire.

      Moreover, Authority precedent establishes that proposals that preclude an agency from exercising a management right, unless or until other events occur, affect the exercise of that right. See, e.g., Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 625, 634 (1997) (Department of Commerce). See also Fort Carson and National Guard Bureau discussed in connection with Proposal 4, supra. Proposal 5 provides that, once negotiated, a hiring freeze would last until a freeze board determines that it should be terminated. By conditioning the length of the hiring freeze, and thereby the Agency's ability to hire from outside the Agency, on the determination of the freeze board, Proposal 5 affects management's right to hire in this manner as well.

      An agency's rights under section 7106(a), however, are subject to the union's right to bargain over procedures, under section 7106(b)(2), and appropriate arrangements, under section 7106(b)(3) of the Statute. See, e.g., Patent Office Professional Association v. FLRA, 47 F.3d 1217, 1220 (D.C. Cir. 1995); Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1151-52 (D.C. Cir. 1994). Moreover, if an agency elects to do so, a union may bargain concerning a matter covered by section 7106(b)(1) of the Statute notwithstanding the fact that the matter would also constitute the exercise of a management right under section 7106(a). See National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995).

      The Union makes no claim that Proposal 5 constitutes a procedure under section 7106(b)(2). The Union makes only a bare, unsupported claim that the proposal constitutes an appropriate arrangement under section 7106(b)(3) and we will not consider such assertions. See, e.g., National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 54 FLRA 521, 527 (1998). Because the Union also provides no support for its claim that the proposal concerns a matter within the subjects set forth in section 7106(b)(1), we reject the Union's section 7106(b)(1) argument. Id. Consequently, we find that Proposal 5 is outside the duty to bargain. [n14]

VII.     Proposal 6

13.01.11          Non-bargaining unit employees shall not compete with bargaining unit employees for Bargaining Unit positions.

A.     Positions of the Parties

1.     Agency

      The Agency interprets Proposal 6 as requiring the establishment of a competitive area comprising only bargaining unit employees.

      The Agency claims that the bargaining unit consists solely of employees working within the Regional Office and that no Regional Office sub-element consists solely of bargaining unit employees. Because 5 C.F.R. § 351.402(b) requires competitive areas to include all employees within a geographical area or organizational element, the Agency maintains that the proposal results in a competitive area that is smaller than that required by regulation. [n15]  The Agency rejects the Union's argument that the proposal is negotiable because it "vitally affects" unit employees' conditions of employment. According to the Agency, such an argument cannot overcome the fact that the proposal is inconsistent with a Government-wide regulation.

2.     Union

      The Union claims that the proposal is consistent with Government-wide regulations. The Union contends, based on Local 32, American Federation of Government Employees v. FLRA, 774 F.2d 498 (D.C. Cir. [ v55 p1090 ] 1985) and related cases, that the proposal vitally affects the conditions of employment of unit employees and is negotiable without regard to its effect on nonunit employees.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      It is undisputed that Proposal 6 concerns the establishment of a competitive area for purposes of a RIF. A "competitive area" defines the organizational and/or geographical boundaries within which employees who are subject to a RIF compete for retention. See, e.g., U.S. Merit Systems Protection Board v. FLRA, 913 F.2d 976, 977 (D.C. Cir. 1990). By its terms, Proposal 6 would preclude unspecified nonunit employees from competing with unit employees for retention in unit positions. It prescribes, thereby, a competitive area that is limited to bargaining unit employees.

2.     The Proposal Is Inconsistent with a Government-wide Regulation

      Under 5 C.F.R. § 351.402(b), a competitive area must be defined solely in terms of an agency's organizational unit(s) and geographical location, and must include all employees within the competitive area so defined. See, e.g. American Federation of Government Employees, Local 1770 and U.S. Department of Defense, Defense Commissary Agency, Central Region, Virginia Beach, Virginia, 52 FLRA 904, 906 (1997). Even assuming that the bargaining unit described by Proposal 6 is defined in terms of an organizational unit or geographical location, it is undisputed that there are nonunit employees within that organizational unit or at that location. Because Proposal 6 establishes a competitive area limited to bargaining unit employees, thus excluding all nonunit employees in the organizational unit or at the location, it is inconsistent with 5 C.F.R. § 351.402(b). 5 C.F.R. § 351.402(b) is a Government-wide regulation. Accordingly, we find that Proposal 6 is outside the duty to bargain under section 7117(a)(1) of the Statute. In view of the fact that the proposal is inconsistent with a Government-wide regulation, the "vitally affects" test does not apply.

VIII.          Proposal 7

13.01.12     Management shall select retrainable candidates from reemployment lists for Bargaining Unit positions.

A.     Positions of the Parties

1.     Agency

      According to the Agency, Proposal 7 would require it to select former bargaining unit employees for reemployment in unit positions, even if they do not possess the qualifications for those positions, as long as they are "retrainable."

      The Agency argues that the proposal is inconsistent with 5 C.F.R. § 330.208 because it does not provide for individuals with reemployment priority to meet minimum educational requirements, or for management to determine whether those individuals possess the capacity, adaptability, and special skills needed to satisfactorily perform the duties of the position for which selected. According to the Agency, under the regulation, such individuals must be more than retrainable; they must be able to perform the duties of the position on appointment.

      The Agency argues that the proposal directly interferes with management's rights under section 7106(a)(2)(A) and (C) to hire and select employees, and section 7106(a)(2)(B) to assign work. According to the Agency, those rights include the right to determine whether a candidate is qualified. The Agency claims that by requiring the Agency to select individuals from the reemployment list who are retrainable, and thus less than fully qualified, the proposal precludes management from determining whether those individuals are qualified.

      The Agency also contends that by requiring management to select retrainable individuals with reemployment priority, the proposal requires the Agency to delay assigning work to such individuals until they are able to perform the work. According to the Agency, management rights include the right to determine that the right must be exercised at a particular time. Therefore, the Agency asserts, because the proposal delays management's ability to assign work, it is not compatible with an effective and efficient Government. Additionally, the Agency claims that the proposal interferes with management's right to assign work because it requires management to assign training to employees on the reemployment priority list (RPL). [ v55 p1091 ]

      The Agency argues that 120th Fighter Interceptor Group (ADTAC), 20 FLRA at 718-21, relied on by the Union, was wrongly decided. In that case, the Authority held that proposals which require management to place certain individuals, who are subject to a RIF or who have reemployment priority, in vacant positions constituted appropriate arrangements under section 7106(b)(3). The Agency also argues that the proposal is not within the duty to bargain under section 7106(b)(3) because it lacks the tailoring necessary to constitute an arrangement for employees adversely affected by the exercise of a management right. According to the Agency, the record is insufficient to make a determination under section 7106(b)(3).

2.     Union

      The Union contends, based on 120th Fighter Interceptor Group, that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3). According to the Union, the proposal allows management to determine how readily an employee can be retrained and whether to fill vacant positions with qualified employees. The Union also explains that the proposal only applies when management decides to fill a vacant position and does not obligate management to waive mandatory minimum qualification requirements. [n16]  As to the Agency's contention that the proposal prevents it from "taking action when it wants to," the Union argues that the Agency has not cited to any cases holding that a proposal is nonnegotiable because it prevents management from "'acting when it wants to' . . . ." Union Response at 16. The Union asserts that the proposal "allows the Agency to determine the type of training and the period during which the training would occur." Supplemental Statement at 3. The Union claims that the proposal would benefit employees on the reemployment list who have been subject to a RIF by ensuring continued employment for those employees by the Agency.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      Proposal 7, which is part of a proposed contract section pertaining to RIFs, requires the Agency to select retrainable candidates from the RPL for bargaining unit positions. The Union cites Proposal 6 in 120th Fighter Interceptor Group to explain the effect of the proposal. Proposal 6 in that case required the agency to select a former employee, released as a result of a RIF, when filling a vacant position. For these reasons, it is clear that the Union interprets Proposal 7 as applying to the reemployment of previous employees who have been separated in a RIF.

      Because the proposal concerns only the Agency's decision to select a candidate for a position, it preserves the Agency's discretion to decide whether to fill vacant positions. The proposal would mandate selection of retrainable candidates from the RPL before other candidates.

      The proposal does not define what is meant by the phrase "retrainable candidates." The Union states that the proposal allows the Agency to determine whether a candidate is retrainable and qualified for the position. In particular, the Union explains that the proposal does not require the Agency to waive minimum OPM requirements. The Union's interpretation comports with the wording of the proposal. Therefore, we construe the proposal as allowing the Agency to determine whether a candidate on the RPL possesses minimum qualifications as established by OPM and whether the candidate is otherwise retrainable.

      The proposal is silent as to the training to be provided employees. The Union states that the proposal permits the Agency to determine the type of training and when the training would occur. The Union's statement contemplates that, if the Agency determines that an employee is retrainable, the Agency will provide the employee with the necessary training. Because this statement comports with the wording of the proposal, we also interpret the proposal as preserving the Agency's discretion as to the timing and type of training that it will provide. See, e.g., American Federation of Government Employees, AFL-CIO, Local 2635 and Naval Communications Unit, Cutler, East Machias, Maine, 30 FLRA 41, 45 (1987) (Naval Communications Unit).

      Consequently, we interpret Proposal 7 as requiring the Agency to select, for bargaining unit positions the Agency decides to fill, candidates from the RPL who are [ v55 p1092 ] minimally qualified as established by OPM standards, and retrainable, as determined by the Agency.

2.     The Proposal Is Not Inconsistent with a Government-Wide Regulation

      Subpart B of 5 C.F.R. Part 330 governs the use of RPLs. As relevant here, an RPL is the "mechanism agencies use to give reemployment consideration to former competitive service employees separated by" a RIF. 5 C.F.R. § 330.201(a). [n17] "When a qualified employee is available on an agency's [RPL] for a position in the applicable commuting area, an agency must . . . select an employee on the list for the vacancy rather than filling it by a new appointment or a transfer." Federal Employee Metal Trades Council of Charleston and Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 29 FLRA 1422, 1432 (1987). Subpart B specifies the acceptable methods by which an agency may select qualified candidates from the RPL. 5 C.F.R. § 330.207. Subpart B also defines who is a qualified candidate for purposes of applying those methods of selection. 5 C.F.R. § 330.208. [n18]

      Specifically, an employee on an RPL is qualified for selection to a position if he or she: (1) meets qualification standards and requirements for the position established or approved by OPM, "including any minimum educational requirements, and any selection placement factors established by the agency;" (2) "[i]s physically qualified . . . to perform the duties of the position;" (3) "[m]eets any special qualifying condition that OPM has approved for the position[;]" and (4) "[m]eets any other applicable requirement for appointment to the competitive service." 5 C.F.R. § 330.208(a)(1)-(4). An agency may, however, establish an alternative standard for determining whether a candidate is qualified for selection, as long as that standard: (1) "is applied consistently and equitably in filling a position;" (2) requires that the candidate meet "any minimum educational requirement for the position;" and (3) allows the agency to determine that the candidate "has the capacity, adaptability, and special skills needed to satisfactorily perform the duties and responsibilities of the position." 5 C.F.R. § 330.208(b)(1)-(3).

      Even assuming that a retrainable candidate under the proposal would not possess the requisite "selection placement factors" and would not be qualified for selection from the RPL under 5 C.F.R. § 330.208(a), under an alternative standard that meets the requirements of 5 C.F.R. § 330.208(b)(1)-(3), a candidate who needs some training to perform the duties of a position would still be qualified for selection. The terms "capacity," "ability," and "special skills" in 5 C.F.R. § 330.208(b)(3) suggest a candidate who does not have the knowledge or experience needed for a position, but who can, with training, learn to do what is required. [n19]  Moreover, 5 C.F.R. § 330.208(b)(3) establishes a standard less stringent than that provided by the proposal.

      Because the Agency has discretion under Proposal 7 to determine whether a candidate is qualified and trainable, the Agency has discretion to determine whether that candidate possesses the minimum educational requirements for the position to be filled and the capacity, ability, and special skills needed to satisfactorily perform the duties and responsibilities of that position. Consequently, Proposal 7 establishes a standard that is consistent with 5 C.F.R. § 330.208(b).

3.     The Proposal Affects Management's Right to Assign Work under Section 7106(a)(2)(B) of the Statute

      Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the determination of what duties will be assigned, when work assignments will occur, and when work that has been assigned will be performed. See, e.g., National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd 691 F.2d [ v55 p1093 ] 553 (D.C. Cir. 1982). The Agency claims, and the Union does not dispute, that the proposal would require the Agency to delay assigning work to a retrainable candidate selected for a position until that candidate is able to perform the work of the position. Proposal 7 thus affects when the Agency can assign the work of the position and, consequently, affects its right to assign work under section 7106(a)(2)(B). See, e.g., Medical Center, Newington, 53 FLRA at 417. Cf. Department of Commerce, 53 FLRA at 634-35 (1997) (disputed facts as to delay resulted in too speculative a basis on which to conclude that proposal affected management's right to assign work).

      For the reasons discussed in connection with Proposal 4 above, Section V.B.2. of this decision, pertaining to Fort Carson and its progeny, to the extent that the proposal delays the assignment of work until employees are sufficiently trained, it affects management's right to assign work under section 7106(a)(2)(B) of the Statute.

      In addition, because the proposal provides that management will afford employees the training necessary to perform the work of the positions for which they have been selected for assignment from the RPL, the proposal affects management's right to assign work in this respect as well. Proposals that require management to assign training to employees that is related to the duties of their positions directly interfere with management's right to assign work under section 7106(a)(2)(B). See, e.g., Elementary and Secondary Schools, Fort Bragg, 53 FLRA at 909. Consequently, to the extent that the proposal requires the Agency to provide training to employees, it affects management's right to assign work.

4.     The Proposal Affects Management's Right to Hire under Section 7106(a)(2)(A) and Select under Section 7106(a)(2)(C) of the Statute

      The Agency asserts, and the Union does not dispute, that the proposal directly interferes with management's rights to hire, under section 7106(a)(2)(A) of the Statute, and to make selections when filling positions, under section 7106(a)(2)(C). See U.S. Department of Defense, Fort Bragg Dependents Schools, Fort Bragg, North Carolina and Fort Bragg Association of Educators, OEA/NEA, 49 FLRA 333, 351 (1994) (Fort Bragg). We assume, therefore, without deciding, that the proposal affects those management rights. See, e.g., American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 255 (1990) (Portsmouth Naval Shipyard). See also American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 439-40 (1991).

5.     The Proposal Is an Appropriate Arrangement under Section 7106(b)(3) of the Statute

      Under the framework outlined in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG), an arrangement within the meaning of section 7106(b)(3) must seek to mitigate adverse effects "flowing from the exercise of a protected management right." U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992), enforcing in part and vacating and remanding in part as to other matters National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 69-70 (1991). The claimed arrangement must also be "tailored" to compensate or benefit employees suffering adverse effects resulting from the exercise of management's rights. See, e.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in part). That is, section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1319 (1996).

      We conclude that Proposal 7 is an arrangement for Agency employees whose employment has been terminated in a RIF. The Authority has held that a RIF constitutes the exercise of management's right to layoff employees under section 7106(a)(2)(A) of the Statute. See, e.g., Fort Bragg, 49 FLRA at 352. The Authority has also consistently held that individuals who have been terminated from employment as a result of a RIF are adversely affected by the exercise of that management right. Id. Moreover, the proposal, by its terms, provides reemployment benefits only to individuals whose employment has been terminated in a RIF. Consequently, we reject the Agency's unsupported claim to the contrary and find that the proposal is sufficiently tailored. See, e.g., Philadelphia Naval Shipyard, 51 FLRA at 455.

      Under the KANG framework, the next inquiry is whether the arrangement is appropriate. In making this [ v55 p1094 ] determination, the Authority examines whether the arrangement excessively interferes with the relevant management right by weighing the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. KANG, 21 FLRA at 31-33.

      The reemployment benefit afforded by the proposal is obviously significant. See, e.g., Fort Bragg, 49 FLRA at 352. As to the intrusion of the proposal on management's right to assign work, the Agency identifies two ways in which the proposal would impose a burden on the exercise of that right: (1) it would delay the assignment of work; and (2) it would require the assignment of work-related training. However, insofar as the proposal would cause a delay in the assignment of work attendant to the training needed by the reemployment candidate, the extent of that delay is within the control of the Agency. In particular, because the Agency has discretion to determine whether a candidate is retrainable and qualified, the Agency would be able to assess whether the amount of training required to enable the candidate to perform satisfactorily is consistent with its needs as to the position for which the candidate would be selected. Similarly, the Agency retains the discretion under the proposal to determine the type of training, including presumably on-the-job training, and when the training would occur. In each respect, the burden on management's right to assign work imposed by the proposal is minimal and is not sufficient to outweigh the benefit of reemployment afforded employees under the proposal. Consequently, we conclude that the proposal does not excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, e.g., National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 47 FLRA 370, 386 (1993), petition granted, enforcement denied as to other matters, 25 F.3d 229 (4th Cir. 1994).

      As to the burden imposed by the proposal on management's rights to hire and make selections when filling positions, we note at the outset that management retains the right, under the proposal, to decide to fill a position and to make judgments as to employee qualifications. See, e.g., Philadelphia Naval Shipyard, 51 FLRA at 455; Fort Bragg, 49 FLRA at 352-53. Once management decides to fill a position, the proposal limits its selection to an individual on the RPL who needs retraining. Because management retains discretion as to how much retraining it will require and as to the type of training provided, the proposal does not significantly restrict the Agency's ability to select an individual who will be able to perform the duties of the position. Weighing the benefit of reemployment afforded employees under the proposal against the limitation on management's ability to select someone to fill a position imposed by the proposal, we find that Proposal 7 does not excessively interfere with management's rights to hire and make selections when filling positions.

      Consequently, we find that Proposal 7 is within the duty to bargain as an appropriate arrangement under section 7106(b)(3). See, e.g., Portsmouth Naval Shipyard, 37 FLRA at 256-58; American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1035-38 (1998), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, Case No. 88-7408 (9th Cir. Feb. 7, 1989); American Federation of Government Employees, AFL-CIO, Local 2635 and Naval Communications Unit, Cutler, East Machias, Maine, 30 FLRA 41, 43-45 (1987); 120th Fighter Interceptor Group, 20 FLRA at 721.

IX.     Proposal 8

13.01.13     Management shall conduct [a] cost study before any RIF action considering various options involving furloughs of groups of employees at various grade levels.

A.     Positions of the Parties

1.     Agency

      The Agency claims that the petition for review of Proposal 8 should be dismissed because the proposal is sufficiently ambiguous to preclude a negotiability determination. The Agency also claims that Proposal 8 is outside the duty to bargain under section 7117(a) because it is inconsistent with Federal law. The Agency asserts that Proposal 8 would require it, without regard to the cause of the RIF, to conduct a "fruitless" cost study prior to effecting any RIF in order to determine the feasibility of furloughs and other alternatives to separations and down-grades. Supplemental Submission at 10. The Agency cites 5 C.F.R. § 351.201(a), [n20] which specifies the grounds for conducting a RIF, and argues that the proposal is inconsistent with that regulation because not all the grounds set forth therein involve costs.

      According to the Agency, cost is not a factor in every RIF, because some RIFs are caused by lack of [ v55 p1095 ] work or insufficient personnel ceiling. To the extent that the proposal would apply to such RIFs, the Agency contends that the proposal is neither a procedure, under section 7106(b)(2), nor an appropriate arrangement, under section 7106(b)(3).

      Citing Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 308-09 (1987) (Congressional Research Service), the Agency also argues that, considered only in terms of a RIF based on a shortage of funds, the proposal directly interferes with management's right to layoff employees under section 7106(a)(2)(A) "because it would require the Agency to conduct a cost study prior to conducting a RIF." Supplemental Submission at 11. The Agency claims that the proposal is not an appropriate arrangement under section 7106(b)(3) because the Union has not demonstrated that it is sufficiently tailored, the adverse impact on employees of the exercise of a management right, or how the proposal would ameliorate that impact. The Agency maintains that the proposal excessively interferes with management's rights because, as a result of the cost study, management "would not be left with any discretion in determining the actions it should take to avoid a RIF." Id.

2.     Union

      The Union contends that the proposal is an appropriate arrangement for employees adversely affected by a RIF. According to the Union, because the proposal does not prevent management from conducting a RIF, it is not necessary to apply the excessive interference test. The Union relies on American Federation of Government Employees, AFL-CIO and Department of Housing and Urban Development, 21 FLRA 354, 355-57 (1986).

      The Union further states that the proposal is intended to require the Agency to conduct a cost comparison study to consider if furloughs would be more cost effective than a RIF. According to the Union, nothing in 5 C.F.R. § 351.201(a)(2) prohibits the type of cost study required by the proposal. The Union asserts that the Agency "is free to make whatever decision it chooses once it has examined the cost factors associated with the proposed action and has considered the alternative of using furloughs." Response to Supplemental Submission at 5.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      By its terms, Proposal 8 requires the Agency to conduct a cost study, for the purpose of considering the costs of various alternatives involving furloughs, before conducting any RIF. There is no dispute between the parties that the proposal applies without regard to the reason for the RIF. In addition, as explained by the Union, the proposal leaves to the Agency's discretion whether or not it takes any particular action based on the results of the cost study. Consequently, we interpret Proposal 8 as requiring the Agency to conduct a cost study involving alternatives with respect to furloughs before conducting a RIF, but as leaving to the Agency's discretion any action taken as a result of that cost study. [n21]

2.     The Proposal Is Not Inconsistent with 5 C.F.R. § 351.201(a)(2)

      The Agency's argument that the proposal is inconsistent with 5 C.F.R. § 351.201(a)(2) because some RIFs do not result from an attempt to reduce costs does not demonstrate that the proposal is inconsistent with law and regulation. Even though the regulation specifies grounds for a RIF other than reduction of costs, it does not otherwise specify the manner in which a RIF must be conducted. The Agency's argument that the proposal would require a cost study even where the basis of the RIF is not cost reduction is a claim that the proposal would, in some circumstances, require a futile act. Specifically, according to the Agency, where cost considerations are not the reason for a RIF, a cost study would have no relevance to the reasons for the RIF and would be a fruitless act. The argument regarding the futility of the proposal addresses the merits of the proposal, a matter on which the Authority will not rule. See American Federation of Government Employees, National Council of Social Security Payment Center Locals and U.S. Department of Health and Human Services, Social Security Administration, 47 FLRA 439, 443-44 (1993).

3.     The Proposal Does Not Affect Management's Right to Layoff Under Section 7106(a)(2)(A) of the Statute

      The Agency's management's right argument is based on a misapprehension as to the effect of the proposal. The case relied on by the Agency, Congressional [ v55 p1096 ] Research Service, involved proposals that required management to: (1) "pursue other cost-saving efforts in response to a budgetary shortfall prior to conducting a RIF;" and (2) "eliminate the use of contractors, temporary employees, interns and other non-permanent personnel before releasing any permanent employee." 25 FLRA at 308. The proposals in Congressional Research Service mandated actions that management would take instead of a RIF and the Authority held that they directly interfered with management's right to layoff under section 7106(a)(2)(A). The proposal in this case does not require any particular action based on the cost study. It would not, for example, mandate furloughs instead of a RIF.

      This distinction is consistent with Authority precedent that distinguishes between proposals that prescribe the manner in which an agency will exercise a management right, see, e.g., Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 33 FLRA 454, 468 (1988) (proposal requires results of a study to be used in determining implementation of new work assignments), and proposals that have no such effect, see, e.g., National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 576-79 (1988) (NRC) (cost study prior to RIF). The former directly interfere with the management right involved; the latter do not. Because Proposal 8 does not require the substitution of other actions for a RIF based on the results of the cost study, or otherwise prescribe the manner in which the RIF will be conducted, consistent with Authority precedent, it does not affect management's right to layoff.

      Accordingly, we find that the proposal is within the duty to bargain.

X.     Proposal 9

13.01.15     Furloughed employees shall have the option to choose continuous furloughs instead of sporadic furloughs, so as to qualify for unemployment benefits.

A.     Positions of the Parties

1.     Agency  [n22]

      According to the Agency, Proposal 9 provides that, without regard to whether the furlough is governed by 5 C.F.R. Part 351, employees may choose to be furloughed on a continuous or an intermittent basis.

      The Agency claims that the proposal would apply to furloughs that exceed 30 days and thus would be governed by 5 C.F.R. Part 351. The Agency argues that to the extent the proposal applies to furloughs in excess of 30 days, it is inconsistent with 5 C.F.R. § 351.604(d), which requires an agency to recall employees from furlough based on retention standing, beginning with the employee with the highest retention standing. [n23]  According to the Agency, under the proposal there could be a mix of continuous and discontinuous furloughs. The Agency describes a hypothetical situation in which an employee with higher retention standing chose a continuous furlough and an employee with lower standing chose a discontinuous furlough of 1 day a week. In that situation, the Agency argues, if it became possible to end the furlough after 2 weeks and both employees were recalled, the effect would be that the employee with lower standing would be recalled first, after a furlough of only 2 days, compared to the 2 weeks' furlough of the employee with higher standing.

      The Agency also contends that, if the recall of the employee with lower standing were delayed to comply with 5 C.F.R. § 351.604(d), the Agency would be prevented from assigning work to that employee during that period, in violation of management's right to assign work under section 7106(a)(2)(B).

      The Agency notes the Authority's statement in American Federation of Government Employees, [ v55 p1097 ] Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA 307 (1986) (OPM), affirmed mem. sub nom. OPM v. FLRA, 829 F.2d 191 (D.C. Cir. 1987), that "'[w]hether employees are furloughed on a continuous or discontinuous basis, the amount of worktime lost due to furlough would be the same.'" Supplemental Submission at 13, quoting OPM at 312. The Agency contends that where furloughs could extend beyond 30 days, as under the proposal herein, it is less likely that, given a mix of continuous and discontinuous furloughs, the amount of worktime lost would be the same. In those circumstances, the Agency argues, the Agency is less able to plan its work.

      Based on OPM, the Agency withdrew its allegation of nonnegotiability to the extent that the proposal applies to furloughs of 30 days or less.

2.     Union

      The Union contends, based on OPM, that the proposal is within the duty to bargain. According to the Union, the Agency's argument as to 5 C.F.R. § 351.604(d), based on the difference between continuous and discontinuous furloughs, is misplaced. The Union contends that the proposal is consistent with 5 C.F.R. § 351.604(d).

      As to the Agency's argument with respect to the right to assign work, the Union contends, relying on OPM, that the proposal is an appropriate arrangement for employees who are adversely affected by management's decision to furlough them.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      By its terms, Proposal 9 would provide employees who are being furloughed by the Agency the option of being furloughed on a continuous or a "sporadic" basis. The Union relies on OPM. OPM concerned a proposal that provided an option for continuous or discontinuous furloughs. The terms "sporadic" and "discontinuous" both connote that the furlough days will be taken intermittently, rather than together. [n24]  Given the similar meanings of the terms used in Proposal 9 and the proposal in OPM, and the Union's reliance on OPM, it is reasonable to interpret Proposal 9 as providing an option for continuous and discontinuous furloughs as defined in OPM. Under that option, employees would be permitted to take their furlough on continuous days so as to qualify for unemployment compensation. See OPM, 22 FLRA at 308. A discontinuous or "sporadic" furlough would spread the total number of days of the furlough over a longer period of separate, non-consecutive days. For example, a continuous furlough of 35 days would result in an employee being out of work for 7 straight weeks. A discontinuous furlough of 35 days, taken a day a week, would spread the furlough over approximately 8 months. Because the proposal permits employees to choose whether to take their furloughs on a continuous or discontinuous basis, the proposal allows for a mix of continuous and discontinuous furloughs to occur.

      The proposal is silent as to the length of the furloughs to which the proposal would apply and the Union does not explain this aspect of the proposal. The proposal, therefore, would apply to any furlough without regard to the length thereof. [n25]  Consequently, we interpret Proposal 9 as permitting employees who are to be furloughed the option of taking their furlough on continuous or discontinuous days, regardless of the length of the furlough.

2.     The Proposal is Not Inconsistent with Government-Wide Regulation

      Because Proposal 9 is not limited as to the length of the furloughs to which it would apply, it is subject to 5 C.F.R. Part 351, which applies to furloughs over 30 days. Under Part 351, an agency has the discretion to use either continuous or discontinuous furloughs. However, nothing in Part 351 requires that an agency furlough all employees on either a discontinuous or continuous basis. Consequently, Part 351 permits a mix of employees on continuous and discontinuous furloughs. [ v55 p1098 ]

      Application of the order of recall prescribed by 5 C.F.R. § 351.604(d) to such a mix of furloughs that exceed 30 days could result in an employee with higher retention standing who has been on a continuous furlough having spent more time on furlough than an employee with lower retention standing. The Agency fails to show how that result is inconsistent with the regulation. The regulation does not prescribe the length of furlough depending on retention standing; it prescribes the order of recall from furlough. Application of 5 C.F.R. § 351.604(d) may mean that employees with higher retention standing who choose a continuous furlough spend more days in furlough status, but that is not a reason for finding that the proposal is inconsistent with the regulation.

3.     The Proposal Does Not Affect Management's Right to Assign Work under Section 7106(a)(2)(B) of the Statute

      The Agency's first argument concerning the right to assign work is misplaced. The Agency claims that compliance with 5 C.F.R. § 351.604(d) would delay its right to assign work to an employee of lower retention standing. The Agency's argument is addressed to the effect of the regulation, not to the effect of Proposal 9. Consequently, this Agency argument provides no basis for finding that the proposal affects management's right to assign work under section 7106(a)(2)(B).

      The Agency's second argument concerning the right to assign work misconstrues the effect of the proposal. Nothing in the proposal affords employees the right to determine the date on which they will begin their furloughs or the number of days that they will be furloughed. Thus, the Agency retains control of the amount of worktime lost and the scheduling of the work to be done during the furloughs. Consequently, this Agency argument also provides no basis for finding that the proposal affects management's right to assign work.

XI.     Order

      The petition for review as to Proposals 3, 4, 5, and 6 is dismissed. The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate over Proposals 1, 2, 7, 8, and 9. [n26]

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APPENDIX

1. 5 C.F.R. § 531.504 provides as follows:

§ 531.504 Level of performance required for quality step increase.

A quality step increase shall not be required but may be granted only to--

     (a)     An employee who receives a rating of record at Level 5 ("Outstanding" or equivalent), as defined in Part 430, subpart B of this chapter; or

     (b)     An employee who, when covered by a performance appraisal system that does not use a Level 5 summary--

     (1)     Receives a rating of record at the highest summary level used by the program; and

     (2)     Demonstrates sustained performance of high quality significantly above that expected at the "Fully Successful" level in the type of position concerned, as determined under performance-related criteria established by the agency.

2. 5 C.F.R. § 351.402(b) provides as follows:

§ 351.402 Competitive area.

. . .

     (b)     A competitive area may consist of all or part of an agency. The minimum competitive area in the departmental service is a bureau, major command, directorate, or other equivalent major subdivision of an agency within the local commuting area. In the field, the minimum competitive area is an activity under separate administration within the local commuting area. A competitive area must be defined solely in terms of an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined.

. . .

3. 5 C.F.R. § 330.207 provides, in relevant part, as follows:

§ 330.207     Selection from RPL.

     (a) Options.     An agency must adopt one of the selection methods in paragraphs (b) and (c) of this section for use in operating a single RPL. The agency may adopt the same method for each RPL it establishes or may vary the method by location, but it must adopt a written policy for each RPL it [ v55 p1099 ] establishes and maintains. After a method is adopted, the agency uses that method in filling all positions. While an agency may not vary the method used by individual vacancy, it may at any time switch selection methods for employees enrolled on the RPL.

     (b)     Retention standing order.     For each vacancy to be filled, the agency shall place qualified individuals in group and subgroup order in accordance with part 351 of this chapter. In making a selection, an agency may not pass over an individual in group I to select from group II and, within a group, may not pass over an individual in a higher subgroup to select from a lower subgroup. Within a subgroup, an agency may select an individual without regard to order of retention standing. A person has no greater priority for the grade and position from which separated than any other person on the list who is qualified for the vacancy. An agency may make an exception to the selection order only in accordance with paragraph (d) of this section.

     (c)(1)     Rating and ranking.     For each vacancy to be filled, the agency rates qualified individuals according to their job experience and education. To do this, an agency shall develop job-related evaluation procedures capable of distinguishing differences in qualifications measured, which shall be applied in a fair and equitable manner. Based on these procedures, the agency shall assign qualified individuals a numerical score of at least 70 on a scale of 100.

. . .

(3)     An agency must make its selection from not more than the highest three candidates available and may pass over a preference eligible to select a nonpreference eligible only as an exception under paragraph (d) of this section.

. . .

     (d)     Exceptions.     An agency may make an exception to this subpart and appoint an individual who is not on the RPL or has lower retention standing than other on the RPL. The exception may be granted only when necessary to obtain an employee for duties that cannot be taken over without undue interruption (as defined in § 351.203 of this chapter) to the agency by an individual who is on the RPL or has higher standing than the one appointed. . . .

4. 5 C.F.R. § 330.208 provides, in relevant part, as follows:

§ 330.208 Qualification requirements.

     (a)     Subject to applicable requirements of law and this chapter, an individual is considered qualified for a position if he or she:

     (1)     Meets OPM-established or approved qualification standards and requirements for the position, including any minimum educational requirements, and any selection placement factors established by the agency;

     (2)     Is physically qualified, with reasonable accommodation where appropriate, to perform the duties of the position; and

     (3)     Meets any special qualifying condition that OPM has approved for the position.

     (4)     Meets any other applicable requirement for appointment to the competitive service.

     (b)     An agency may make an exception to the qualification standard and adopt an alternative standard under the following conditions (this provision does not authorize waiver of the selection order required by § 330.207):

     (1)     The exception is applied consistently and equitably in filling a position;

     (2)     The individual meets any minimum educational requirement for the position; and

     (3)     The agency determines that the individual has the capacity, adaptability, and special skills needed to satisfactorily perform the duties and responsibilities of the position.

5. 5 C.F.R. § 330.201(a) provides as follows:

§ 330.201     Establishment and maintenance of RPL.

     (a)     The reemployment priority list (RPL) is the mechanism agencies use to give reemployment consideration to their former competitive service employees separated by reduction in force (RIF) or fully recovered from a compensable injury after more than 1 year. The RPL is a required component of agency positive placement programs. In filling vacancies, the agency must give RPL registrants priority consideration over certain outside job applicants and, if it chooses, also may consider RPL registrants before considering internal candidates.

6. 5 C.F.R. § 351.702(a) provides as follows:

§ 351.702      Qualifications for assignment.

     (a)     Except as provided in § 351.703, an employee is qualified for assignment under § 351.701 if the employee:

     (1)     Meets the OPM standards and requirements for the position, including any minimum [ v55 p1100 ] educational requirement, and selective placement factors established by the agency;

     (2)     Is physically qualified, with reasonable accommodation where appropriate, to perform the duties of the position;

     (3)     Meets any special qualifying condition which the OPM has approved for the position; and

     (4)     Has the capacity, adaptability, and special skills needed to satisfactorily perform the duties of the position without undue interruption. This determination includes recency of experience, when appropriate.

7. 5 C.F.R. § 351.703 provides as follows:

§ 351.703     Exception to qualifications.

     An agency may assign an employee to a vacant position under § 351.201(b) or § 351.701 of this part without regard to OPM's standards and requirements for the position if:

     (a)     The employee meets any minimum education requirements for the position; and

     (b)     The agency determines that the employee has the capacity, adaptability, and special skills needed to satisfactorily perform the duties and responsibilities of the position.

8. 5 C.F.R. § 351.201(a)(2) provides as follows:

§ 351.201     Use of regulations.

. . .

     (2)     Each agency shall follow this part when it releases a competing employee from his or her competitive level by furlough for more than 30 days, separation, demotion, or reassignment requiring displacement, when the release is required because of lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment rights or restoration rights; or reclassification of an employee's position due to erosion of duties when such action will take effect after an agency has formally announced a reduction in force in the employee's competitive area and when the reduction in force will take effect within 180 days.

9.     5 C.F.R. § 351.604(d) provides as follows:

§ 351.604     Use of furlough.

. . .

     (d)     When an agency recalls employees to duty in the competitive level from which furloughed, it shall recall them in the order of their retention standing, beginning with the highest standing employee.

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Phyllis N. Segal, Chair, Concurring:

      I agree with the majority's conclusion that Proposal 8 is within the duty to bargain. I write separately because I reach this conclusion for a reason different from that discussed in the majority opinion.

      My colleagues find that Proposal 8 does not affect management's right to layoff employees under section 7106(a)(2)(A) of the Statute because the proposal requires that the Agency conduct a cost study prior to implementing a RIF but does not require the Agency to take any particular actions as a result of that study. Majority Opinion at 37. That finding is consistent with Authority decisions holding that proposals and provisions requiring that management take certain types of actions prior to conducting a RIF do not affect management's right to layoff employees. See, e.g., National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 53-54 (1991) (Provision 11), decision and order on request for reconsideration as to other matters, 40 FLRA 849 (1991), enforced in part, vacated in part, and remanded in part as to other matters, 960 F.2d 1068 (D.C. Cir. 1992), decision and order on remand as to other matters, 45 FLRA 1256 (1992) (provision requiring agency to provide union specified information prior to conducting RIF); National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 577-78 (1988) (Proposal 38.1) (NRC), reversed in part and enforced in part as to other matters sub nom. U.S. Nuclear Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir. 1990) (proposal requiring agency to conduct cost study prior to conducting RIF); American Federation of Government Employees, AFL-CIO and Department of Housing and Urban Development, 21 FLRA 354, 355-57 (1986) (Proposal 1) (same).

      However, other Authority decisions hold that proposals and provisions requiring management to take certain actions prior to implementing a RIF do affect management's right to layoff employees. See, e.g., NRC, 31 FLRA at 615-16 (Proposal 38.32) (proposal requiring agency to determine the final shape of its post-RIF organizational structure before implementing the RIF); Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 SEIU, AFL-CIO and U.S. Department of the Navy, Naval Underwater Systems Center, 25 FLRA 964, 966-67 (1987) (Proposal 3) (proposal requiring agency to terminate specified types of employees prior to implementing RIF); Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 308 (1987) [ v55 p1101 ] (CRS) (Proposals 1 and 2) (proposals requiring agency to exhaust other methods of cutting costs prior to conducting RIF whenever it was "practicable" or "possible" to do so).

      The parties dispute which of these different lines of cases should govern the resolution of Proposal 8. The majority's explanation of this precedent is not, in my view, persuasive. Among other things, I believe that the majority does not adequately explain why the proposed requirement to conduct a cost study is distinguishable from the proposals in CRS, which the Authority held to affect the agency's right to layoff because they "would prevent the [a]gency from exercising its right . . . to layoff employees unless it took other cost-saving measures first." 25 FLRA at 308. While it will be necessary in an appropriate case to more fully examine and reconcile the complex Authority precedent that bears on determining whether Proposal 8 affects a management right, I find it unnecessary to resolve this here because, for the reasons explained below, I would find that Proposal 8 constitutes a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Therefore, even if it does affect a management right, Proposal 8 is within the Agency's duty to bargain.

      The test for determining whether a proposal constitutes an appropriate arrangement is set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under this test, the Authority initially determines whether the proposal is intended as an "arrangement" for employees adversely affected by the exercise of a management right. If the proposal constitutes an arrangement, then the Authority determines whether it is "appropriate" because it does not excessively interfere with any applicable management rights. See KANG, 21 FLRA at 31-33. In resolving whether the proposal excessively interferes with a management right, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management rights. See id.

      The Authority has consistently held that individuals who have been terminated from employment as a result of a RIF are adversely affected by management's right to layoff employees. See Majority Opinion at 33 (citing U.S. Department of Defense, Fort Bragg Dependents Schools, Fort Bragg, North Carolina and Fort Bragg Association of Educators, OEA/NEA, 49 FLRA 333, 352 (1994). Proposal 8 is intended to ensure that management considers other options before it exercises its right to layoff employees. See Union Response at 4. As such, the proposal is intended to benefit employees who might otherwise be adversely affected by management's right to conduct a RIF. In addition, the proposal is tailored to benefit only those employees who would suffer the adverse effects of the potential RIF, because the study it requires may lead management to decide to take different measures rather than laying off those employees. Id. at 4-5. Accordingly, I find that Proposal 8 constitutes an arrangement.

      I also find that Proposal 8's potential benefit to employees outweighs the burden it places on management. Specifically, the potential benefit to employees is considerable, in that they may avoid losing their jobs if management determines, as a result of the cost study, to pursue an alternative route to reach its goals. Id. On the other hand, the proposal would merely require management to conduct a cost study, and would not require management to take any particular action (or to ultimately forego a RIF) as a result of that study. The Agency objects to the proposal because it would require management to conduct a cost study even in situations where the reasons for a proposed RIF are not cost-related. However, as argued by the Union, there are significant costs that the Agency will incur if it decides to layoff employees in a RIF, and it is "prudent for the [Agency] to investigate the cost effectiveness of a proposed action and to consider alternatives to that action if any exist." Id. at 4. Accordingly, I find that the benefits provided to employees outweigh the burdens placed on management, and conclude that Proposal 8 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

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Footnote # 1 for 55 FLRA No. 176 -

   Chair Segal's concurring opinion follows this decision.

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Footnote # 2 for 55 FLRA No. 176 -

   The Authority's regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.

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Footnote # 3 for 55 FLRA No. 176 -

   The Union's initial appeal in this case included over 230 proposals, more than 60 of which the Agency had not alleged to be nonnegotiable either in whole or in part. In its Statement of Position, the Agency withdrew its allegation of nonnegotiability as to 12 proposals. In a separate motion, the Union subsequently withdrew approximately 130 of its proposals. Approximately 30 proposals remained in dispute. The case was referred to the Federal Labor Relations Authority's Collaboration and Alternative Dispute Resolution Office (CADR). Subsequently, the Union narrowed to 10 the number of proposals as to which it still requested a decision. CADR returned those proposals to the Authority for further processing. Subsequently, in its response to the Agency's supplemental submission, the Union withdrew Proposal 10 (numbered by the Union as 14.04.01).

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Footnote # 4 for 55 FLRA No. 176 -

   We grant the Union's request for severance to the limited extent that we will resolve the negotiability issues as to portions of the proposals that, in our view, can stand independently of the rest of the proposals and have been specifically addressed by the parties. See, e.g., National Education Association, Overseas Education Association, Fort Bragg Association of Educators and U.S. Department of Defense, Department of Defense Domestic Dependents Elementary and Secondary Schools, Fort Bragg, North Carolina, 53 FLRA 898, 898 n.1 (1997) (Elementary and Secondary Schools, Fort Bragg).

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Footnote # 5 for 55 FLRA No. 176 -

   The proposals are numbered consecutively for the convenience of the reader. The parties refer to the proposals by the section numbers assigned by the Union.

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Footnote # 6 for 55 FLRA No. 176 -

   The meaning that the Authority adopts for this proposal, and for the other proposals in this case, unless modified by the parties, would apply in other disputes, such as arbitration proceedings, where the construction of the proposal is at issue. See Laurel Bay, 51 FLRA at 741 n.8.

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Footnote # 7 for 55 FLRA No. 176 -

   The text of 5 C.F.R. § 531.504 is set forth at 1 in the Appendix to this decision.

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Footnote # 8 for 55 FLRA No. 176 -

   Member Cabaniss notes that although the Union's explanation of the proposal adopted above renders the proposal consistent with 5 C.F.R. § 531.504, it makes an employee's selection of a QSI a meaningless choice.

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Footnote # 9 for 55 FLRA No. 176 -

   For this reason, VAMC Hampton, cited by the Agency, is inapposite.

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Footnote # 10 for 55 FLRA No. 176 -

   The Agency has withdrawn its allegation of nonnegotiability as to the second sentence of Proposal 2. Statement of Position at 60.

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Footnote # 11 for 55 FLRA No. 176 -

   The Agency claims that Proposal 3 was revised by the Union and was not submitted to the Agency in the Union's request for an allegation of nonnegotiability. However, the Agency also states that the revision in question--substituting the phrase "conversations employees have on the telephone" for the phrase "any employee's telephone conversations" after the word "record"--does not "affect the [A]gency's allegation and position." Statement of Position at 71-72. Normally, where a proposal has been revised and has not been submitted to the agency, the Authority will dismiss the petition for review as to that proposal. See, e.g., National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 38 FLRA 263, 268- 69 (1990). However, if the revision does not affect the agency's position on the negotiability of the proposal, the Authority will examine and resolve the negotiability appeal regarding that proposal. See, e.g., Planners-Estimators, Progressmen and Schedulers Association, Local 5 and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 41 FLRA 297, 298 (1991). Because the Agency states that the revision in Proposal 3 does not affect its position, we will examine and resolve the negotiability appeal.

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Footnote # 12 for 55 FLRA No. 176 -

   The Authority has consistently held, however, that proposals that would delay the exercise of a management right pending the completion of bargaining, negotiated grievance procedures, or statutory appeals procedures are within the duty to bargain. See, e.g., American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston Regional Office, 48 FLRA 232, 240 and 242 (1993).

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Footnote # 13 for 55 FLRA No. 176 -

   Consequently, we take no position on whether delay would preclude bargaining on procedures under section 7106(b)(2) or appropriate arrangements under section 7106(b)(3) of the Statute.

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Footnote # 14 for 55 FLRA No. 176 -

   Because we find that the proposal is outside the duty to bargain under section 7106(a)(2)(A) of the Statute, we need not address the Agency's section 7106(a)(2)(C) arguments.

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Footnote # 15 for 55 FLRA No. 176 -

   The text of 5 C.F.R. § 351.402(b) is set forth at 2 in the Appendix to this decision.

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Footnote # 16 for 55 FLRA No. 176 -

   Generally speaking, minimum qualifications for positions in the Federal service are established by the Office of Personnel Management (OPM). American Federation of Government Employees, Local 1138, Council 214 and U.S. Department of the Air Force, Air Force Materiel Command, 645 Air Base Wing/CE, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1725, 1728 n.6 (1996). Agencies are also authorized to establish additional qualifications for positions, known as "selective factors." Id. at 1729 n.7. "Selective factors" are defined as knowledge, skills, and abilities "'that are in addition to the minimum qualifications in a qualification standard, but are determined to be essential to perform the duties and responsibilities of a particular position.'" Id., quoting OPM's Operating Manual, Qualification Standards for General Schedule Positions, p. II-3.

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Footnote # 17 for 55 FLRA No. 176 -

   The text of 5 C.F.R. § 330.201(a) is set forth at 5 in the Appendix to this decision.

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Footnote # 18 for 55 FLRA No. 176 -

   The text of 5 C.F.R. §§ 330.207 and 208 are set forth at 3 and 4 of the Appendix, respectively.

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Footnote # 19 for 55 FLRA No. 176 -

   This interpretation of OPM's RPL regulations is consistent with the MSPB's interpretation of similar provisions of OPM's RIF regulations. The relationship between 5 C.F.R. §§ 330.208(a) and 330.208(b) pertaining to the qualifications for reemployment rights is analogous to the relationship between 5 C.F.R. §§ 351.702(a) and 351.703 pertaining to qualifications for assignment in a RIF. The text of 5 C.F.R. §§ 351.702(a) and 351.703 is set forth at 6 and 7 in the Appendix to this decision. 5 C.F.R. § 330.208(b) is worded similarly to 5 C.F.R. § 351.703 and both provisions create an exception to the qualifications requirements of the related sections. In describing 5 C.F.R. § 351.703, the MSPB has stated that the provision contains "more lenient" requirements than the "more stringent qualification standard of section 351.702." Adams v. Postal Service, 77 MSPR 368, 375 (1998). Comparing 5 C.F.R. § 351.702(a) (qualifications for assignment right to encumbered positions) with 5 C.F.R. § 703 (applicable to vacant positions), MSPB indicated that "the former requires a closer match between the employee's education/experience and the particular duties/responsibilities of the target position[s]." Id. at 372. The lack of the requisite education/experience would not necessarily preclude placement of a candidate in a vacant position under 5 C.F.R. § 351.703. Id. Because 5 C.F.R. § 330.208(b) is similar in wording and function to 5 C.F.R. § 351.703, our interpretation is consistent with this MSPB precedent.

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Footnote # 20 for 55 FLRA No. 176 -

   The text of 5 C.F.R. § 351.201(a)(2) is set forth at 8 in the Appendix to this decision.

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Footnote # 21 for 55 FLRA No. 176 -

   Because we find that the meaning of the proposal is sufficiently clear to render a decision, we reject that Agency's claim that the petition for review as to this proposal should be dismissed.

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Footnote # 22 for 55 FLRA No. 176 -

   In its allegation of nonnegotiability with respect to Proposal 9 the Agency claimed that the proposal directly interfered with its right to determine its budget under section 7106(a)(1) of the Statute. In its supplemental submission in response to the Authority's Order requiring it to state in full its position on that claim, the Agency withdrew its allegation as to this ground. Consequently, we do not address that allegation in this decision.

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Footnote # 23 for 55 FLRA No. 176 -

   The text of 5 C.F.R. § 351.604(d) is set forth at 9 in the Appendix to this decision.

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Footnote # 24 for 55 FLRA No. 176 -

   The term "sporadic" is defined as "occurring occasionally . . . apart from other things of the same kind, or in scattered instances," and the term "discontinuous" is defined as "marked by breaks or gaps." Webster's Third New International Dictionary, Unabridged, 1986.

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Footnote # 25 for 55 FLRA No. 176 -

   We reach this conclusion notwithstanding the fact that the Union cites OPM, and OPM is limited to furloughs that are 30 days or less. In its Statement of Position, the Agency withdrew its allegation of nonnegotiability to the extent that the proposal applied to furloughs of 30 days or less, but reasserted its claim that, to the extent the proposal applied to furloughs in excess of 30 days, it was outside the duty to bargain. The Union, in its Response, did not indicate that, because the Agency had withdrawn its nonnegotiability claim insofar as the proposal applied to furloughs of 30 days or less, the proposal was no longer in dispute. Nor did the Union challenge the Agency's claim that the proposal would apply to furloughs in excess of 30 days and that the proposal is subject to 5 C.F.R. Part 351. For these reasons, we conclude that the Union relied on OPM insofar as OPM provided an employee option for continuous or discontinuous furloughs, not because it intended Proposal 9 to be limited to furloughs of 30 days or less.

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Footnote # 26 for 55 FLRA No. 176 -

   In finding these proposals to be within the duty to bargain, we make no judgment as to their merits.