[ v57 p373 ]

57 FLRA No. 70

FRATERNAL ORDER OF POLICE
LODGE #1F
(Union)

and

UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS, MEDICAL CENTER
PROVIDENCE, RHODE ISLAND
(Agency)

0-NG-2465

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

July 2, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of 14 proposals. [n2] For the reasons which follow, we find the following proposals negotiable: Proposals 7, 13(a) and (13)b. We find the following proposals negotiable at the election of the Agency: Proposals 1(c) and 4(1). Finally, we find the following proposals outside the duty to bargain: Proposals 1(a), 1(b), 2, 3, 4(2), 8, 10(a), 10(b) and 13(c). [n3]  [ v57 p374 ]

II.     Proposal 1(a)

A.     Proposal 1(a)

(a) Nothing in this agreement shall affect the authority of any management official

          (A) to hire, assign, direct, layoff and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees; [The italicized word would be deleted by Union proposal 1(a).]

B.     Positions of the Parties

1.     Union

      The Union contends that this proposal is meant to curtail the Agency's ability to assign bargaining unit employees without taking seniority or promotional standards into consideration. Petition for Review at 2, Response at 3. The Union argues that E.O. 12871 makes it mandatory for agencies to negotiate subjects set forth in § 7106(b)(1) and that the Agency has made such an election. Response at 4. The Union maintains that this is a § 7106(b)(1) proposal because it refers to the assignment of employees to different subdivisions, work projects, tours of duty, shifts, etc. Id. At a minimum, it asserts this proposal is negotiable at the election of the Agency. Id. at 4-5. Finally, the Union contends that the proposal does not abrogate the Agency's right to determine the qualifications of employees to be assigned, rather it merely makes such qualifications higher. Id. at 5.

2.     Agency

      The Agency contends that this proposal conflicts with § 7106(a)(2)(A) because it would eliminate the Agency's ability to assign or determine qualifications. SOP at 4. The Agency asserts that proposals which require management to assign employees on the basis of seniority abrogate the Agency's right to determine qualifications and thus contravene the right to assign. Id. (citing NAGE, Local R1-109, 35 FLRA 513 (1990) (Local R1-109)). Moreover, the Agency claims that a similar proposal raised by the Union in 1988 was deemed nonnegotiable by the Authority in Fraternal Order of Police, Lodge 1F, R.I., 32 FLRA 944, 953 (1988) (Providence). Accordingly, the Agency also alleges the negotiability of the proposal is res judicata. SOP at 5. Finally, the Agency states that the proposal is not an appropriate arrangement under § 7106(b)(3) because no adverse impact on employees is involved. Id. at 5.

C.     Analysis and Conclusions

1.     Meaning of the Proposal  [n4] 

      Proposal 1(a) and § 7106(a)(2)(A) of the Statute are identically worded, except that the term assign has been removed from the list of management rights in the proposal. The Union contends that Proposal 1(a) is meant to curtail the Agency's ability to assign bargaining unit employees without regard to the seniority of those employees. However, Proposal 1(a), by its plain wording, does more than limit the Agency's ability to assign based on considerations other than seniority. Rather, by its plain wording, the proposal would eliminate the Agency's right to assign employees using language which is identical to § 7106(a)(2)(A).

2.     Proposal 1(a) Affects Management's Right to Assign Employees Under § 7106(a)(2)(A) of the Statute.  [n5] 

      Where an agency claims that a proposal affects a management right under § 7106(a), and a union both disputes that and claims that the proposal is electively [ v57 p375 ] negotiable under § 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain, and then, if necessary, address those claims that would determine if a proposal is electively negotiable. AFGE, Council of GSA Locals, Council 236, 55 FLRA 449, 451 (1999) (GSA) (citing AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171 (1998)) (Local 2910).

      Following this sequence, we first address the Agency's claim under § 7106(a)(2)(A). We conclude that this proposal would affect management's right to assign employees under § 7106(a)(2)(A). By incorporating the language of § 7106(a)(2)(A) of the Statute and omitting the word assign, the proposal would deprive the Agency of its right to assign employees as set forth in § 7106(a)(2)(A). As such, despite the Union's contentions to the contrary, the proposal would affect management's right to assign employees.

3.     Proposal 1(a) is Not Electively Negotiable Under § 7106(b)(1)

      The Union claims that, pursuant to E.O. 12871, the Agency must negotiate the assignment of employees because it is a matter covered by § 7106(b)(1) of the Statute. In this respect, the Union argues that the right to assign addressed by this proposal means the right to assign included in § 7106(b)(1), i.e., to any organizational subdivision, work project, or tour of duty. We have previously held that § 7106(b)(1) is an exception to management's section § 7106(a) rights. AFGE, Council of Prison Locals, Local 171, 52 FLRA 1484, 1494 (1997) (Prison Locals).

      The Authority has found that the phrase numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty in § 7106(b)(1) applies to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. NAGE, Local R5-184, 52 FLRA 1024, 1030 (1997); see also NFFE, Local 2148, 53 FLRA 427, 432 (1997). Under the plain meaning of this proposal, it is clear that it would actually eliminate the Agency's right to assign employees as opposed to relating to the allocation of staff under § 7106(b)(1). Accordingly, this proposal does not fall under § 7106(b)(1) as alleged by the Union and is outside the duty to bargain.

III.     Proposal 1(c)  [n6] 

A.     Proposal 1(c)

     (B) Nothing in this agreement shall preclude any agency and any labor organization from negotiating - -

(1) at the election of the agency, on the numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods and means of performing work; [Under Proposal 1(c), the italicized language would be removed.]

B.     Positions of the Parties

1.     Union

      The Union argues that this proposal is intended to implement E.O. 12871. According to the Union, the Agency has stated that pursuant to the Executive Order [12871], the Secretary of Veterans Affairs has directed that the Agency will negotiate issues under 5 U.S.C. § 7106(b)(1), except where these issues are contrary to rights under 5 U.S.C. § 7106(a). [n7] Response at 17. The Union claims that the Agency did not argue that the proposal violates § 7106(a). Accordingly, the Union argues that the proposal is a mandatory subject of bargaining.

2.     Agency

      The Agency contends that the Authority has rejected previous arguments that bargaining over § 7106(b)(1) matters is mandatory, as opposed to permissive, under E.O. 12871. SOP at 7 (citing United States Dep't of Commerce, Patent and Trademark Office, 54 FLRA 43 (1998)). Therefore, the Agency argues, E.O. 12871 does not make this proposal a mandatory subject of bargaining. The Agency does, however, concede that the Secretary of Veterans Affairs has directed that the Agency will negotiate issues under § 7106(b)(1) except where these issues are contrary to rights under § 7106(a). Id. at 7. [n8]  [ v57 p376 ]

C.     Analysis and Conclusions

1.     Meaning of the Proposal

      By its express terms, this proposal would eliminate the Agency's discretion to refrain from bargaining over § 7106(b)(1) matters.

2.     Proposal 1(c) Is Negotiable at the Election of the Agency

      The Union contends that E.O. 12871 mandates that the Agency elect to bargain over § 7106(b)(1) subjects. This contention is inaccurate. The Authority determined, in decisions affirmed by the United States courts of appeals, that E.O. 12871 did not constitute an election to bargain. See Soc. Sec. Admin., Santa Rosa District Office, Santa Rosa, Ca., 54 FLRA 444 (1998), petition denied, AFGE v. FLRA, 204 F.3d 1272 (9^th Cir. 2000); United States Dep't of Commerce, 54 FLRA 360 (1998), petition denied, NAGE v. FLRA, 179 F.3d 946 (D.C. Cir. 1999). Rather, E.O. 12871 was found to constitute a direction by the President that agency officials bargain over matters falling within the scope of section 7106(b)(1) of the Statute. Subsequently, E.O. 12871 was revoked by E.O. 13203, which was signed on February 17, 2001. As relevant here, the heads of executive agencies were directed to rescind any orders, rules, regulations, guidelines, or policies implementing or enforcing E.O. 12871. [n9] Of course, the Statute continues to make fully negotiable, at the election of an agency, the matters set forth in § 7106(b)(1).

      Turning to the specific language of this proposal, it would remove the discretionary aspect of § 7106(b)(1), thereby requiring the Agency to bargain over the matters set forth therein. The Authority has previously determined that proposals requiring bargaining over § 7106(b)(1) matters are negotiable at the election of the agency under § 7106(b)(1). SSA, Baltimore, Maryland, 55 FLRA 1063, 1069 (1999). Under the regulations applicable to this case, when the Authority finds that a proposal concerns a matter encompassed by § 7106(b)(1), it dismisses the petition as to that proposal pursuant to § 2424.10 of its regulations. See, e.g., NAGE, Local R5-184, 51 FLRA 386, 394 (1995) (Local R5-184). Accordingly, Proposal 1(c) is negotiable at the election of the Agency and we dismiss this portion of the petition for review.

IV.     Proposal 2

A.     Proposal 2

     - Incorporate a Section 3 creating bidding procedure for all non-promotional positions created within the Department.

     - The Section shall state that all such bids for non-promotional positions shall be determined by the departmental seniority of those officers who properly follow the bidding procedure.

     - Furthermore, the Section shall state that upon the occurrence of a vacancy in a non-promotional position, all positions shall be opened and filled by seniority.

B.     Positions of the Parties

1.     Union

      The Union contends that Proposal 2 is meant to curtail the Agency's ability to assign employees to positions without taking seniority or promotional standards into consideration. Response at 3. The Union argues that E.O. 12871 makes it mandatory for agencies to negotiate concerning the subjects set forth in § 7106(b)(1). Response at 4. The Union maintains that the proposal concerns a § 7106(b)(1) matter because it refers to the assignment of employees to different subdivisions, work projects, tours of duty, shifts, etc. Id.

      Finally, the Union contends that the proposal does not abrogate the Agency's right to determine the qualifications of employees for particular assignments. Instead, it argues that this proposal makes such qualifications higher. According to the Union, the proposal would institute higher standards by mandating that the Agency select the officers with the most experience and seniority and by using a promotional examination procedure that would demand higher educational and other qualifications. Id.

2.     Agency

      The Agency contends that Proposal 2 conflicts with § 7106(a)(2)(A) because it would eliminate the Agency's ability to determine qualifications in filling vacant positions. SOP at 4. The Agency asserts that a proposal which requires management to assign employees [ v57 p377 ] on the basis of seniority or promotional standards abrogates the Agency's right to determine qualifications which, in turn, contravenes the right to assign, citing Local R1-109, 35 FLRA 513 (1990). Moreover, the Agency claims that a similar proposal raised by the Union was determined to be nonnegotiable by the Authority in Providence, 32 FLRA at 953. Accordingly, the Agency asserts that the matter is res judicata. Id. Finally, the Agency notes that the Union does not contend this proposal is an appropriate arrangement under § 7106(b)(3), and maintains in particular that the proposal does not involve an adverse impact on employees. Id. at 5.

C.     Analysis and Conclusions

1.     Meaning of the Proposal

      By its terms, Proposal 2 would require the Agency to fill non-promotional positions based on seniority. The Union also asserts, in its response to the Agency's Statement of Position, that Proposal 2 includes a promotional examination procedure which demands higher educational and other qualifications. Response at 5.

      To the extent the Union's interpretation of this proposal would mandate management's assignment of qualified employees based only on seniority, the Union's interpretation comports with the plain wording of Proposal 2. However, it is unclear what promotional examination procedure is being proposed and what role it would play in the assignment process, including whether the Agency would be bound by the results of the procedure.

2.     Proposal 2 Affects Management's Right to Assign Employees Under § 7106(a)(2)(A) of the Statute

      The Authority has previously stated, where management has authority to determine that employees are equally qualified for work assignments, a proposal requiring selection based on seniority does not affect management's rights to assign employees and assign work. AFGE, 55 FLRA 1154, 1156 (1999); AFGE, Local 1138, Council 214, 51 FLRA 1725, 1730-31 (1996). However, the right to assign employees includes the authority to determine the particular qualifications and skills needed to perform the work of a position, as well as the authority to determine which employees possess the requisite qualifications and skills. See Patent Office Professional Association, 41 FLRA 795, 834 (1991). The Authority has also previously held that a proposal which sets forth a particular method for determining qualifications, such as a test, affects management's right to assign employees. AFGE, Local 1985, 55 FLRA 1145, 1152-53 (1999).

      This proposal, by its terms and as explained by the Union, requires the Agency to set up a bidding procedure in making determinations as to the assignment of employees and use a promotional examination procedure to increase qualifications. Response at 5. We find that the proposal affects the Agency's right to assign employees under § 7106(a)(2)(A), since it would limit the Agency's ability to determine employee qualifications for non-promotional positions. [n10] 

3.     The Union's Contention That Proposal 2 Falls Under § 7106(b) Is a Bare Assertion

      The Union asserts that the proposal encompasses the right to assign employees/members of the FOP to different subdivisions, work projects, tours of duty, shifts, etc under § 7106(b)(1). Response at 4. However, other than this bare assertion, the Union does not support its contention that this proposal relates to staffing patterns under § 7106(b)(1) and it is not otherwise apparent to us that the proposal concerns such a matter. See, e.g., AFGE, Local 2031, 56 FLRA 32, 34 (2000). Accordingly, we find that Proposal 2 is outside the duty to bargain. [ v57 p378 ]

V.     Proposal 3

A.     Proposal 3

The basic work shift will consist of eight (8) hours and the basic workweek will consist of forty (40) hours. Management will notify and negotiate with the Lodge before changing the starting time and quitting time of shifts. The Lodge has the right to request negotiation on the impact of management's decision. [The italicized wording, which would replace current contract language stating "[m]anagement will notify but not negotiate," is in dispute.]

B.     Positions of the Parties

1.     Union

      The Union maintains that this proposal is negotiable under E.O. 12871, and pursuant to § 7106(b)(1). Response at 18. The Union states, "[c]learly, the determination of which hours and shifts will be worked by what number, type, and grade of employee affects the methods for employees to perform their work. Therefore, Proposal 3 addresses issues which are negotiable pursuant to § 7106(b)(1)." Id.

      The Union also states that it intended for this proposal to address unilateral non-emergency shift changes, rather than emergency shift changes, and that "all reasonable safety concerns which [the Agency] raises during negotiations concerning shift changes, will be addressed adequately by the FOP." Id. at 19.

2.     Agency

      The Agency argues that Proposal 3 violates management's right to determine its internal security practices under § 7106(a)(1), and makes no allowances for the Agency to take unilateral action during emergencies under § 7106(a)(2)(D). To support its contention, the Agency states that the Authority has previously found that the right to determine internal security practices includes the right to set rotating shifts, citing AFGE, Local 2143, 48 FLRA 41, 44-45 (1993). The Agency claims that this proposal would limit its ability to set the times for such shifts to begin, thereby affecting its right to determine internal security. SOP at 8.

      In addition, the Agency claims that Proposal 3 violates a Government-wide regulation, 5 C.F.R. § 610.121, that allows the Agency to determine work schedules without advance notice under two circumstances. The first circumstance is where the Agency has determined that such notice would seriously handicap it in carrying out its functions. The second circumstance is when the Agency determines that its costs would be substantially increased. Id. The Agency argues that Proposal 3 does not allow the Agency to act unilaterally in either situation, as the regulation requires, since the proposal does not include any exceptions.

C.     Analysis and Conclusions

1.     Meaning of the Proposal

      By its terms, Proposal 3 would require the Agency to notify and negotiate with the Union concerning any shift changes before such changes are made. The Union notes that the proposal itself was not intended to address emergency situations, and that it is willing to discuss and ultimately agree upon a clause which would give [the Agency] the necessary authority to take all reasonable and immediate actions to address such emergency situations. Response at 18. We conclude that this proposal, in its current form, would apply to all shift changes made by the Agency.

2.     Proposal 3 is Contrary to 5 C.F.R. § 610.121(a), a Government-Wide Regulation

      Under § 7117(a)(1) of the Statute, the parties cannot bargain over matters inconsistent with a Government-wide regulation. Here, the regulation cited by the Agency, i.e., 5 C.F.R. § 610.121(a), explicitly permits an agency to change employees' work schedules without limitation when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased . . .. [n11] Although the Union states that the proposal is not intended to address emergencies, emergencies are not the same situations described in 5 C.F.R. C.F.R. § 610.121(a). As construed, Proposal 3 would limit the Agency's ability to unilaterally change work schedules pursuant to these regulatory conditions. Therefore, Proposal 3 is inconsistent with 5 C.F.R. § 610.121(a), and is outside the duty to bargain under § 7117(a)(1) of the Statute. Accordingly, there is no need to address the Union's argument that the proposal is negotiable under § 7106(b)(1). See, e.g., NTEU, 55 FLRA 1174, 1181 (1999) (Member Wasserman dissenting on other grounds) (where a provision is contrary to law or Government-wide regulation, there is no need to address the union's § 7106(b) claims). [ v57 p379 ]

VI.     Proposals 4(1)  [n12] 

A.     Proposal 4(1)

     - Create a new Minimum Manning Article as Article VIII (pushing all Article numbers in the Agreement up by one), with the following parameters:

          - Section 1 shall state that there shall be a minimum of two (2) officers on duty at all times on all shifts.

B.     Positions of the Parties

1.     Union

      The Union argues that Proposal 4(1) does not affect the Agency's internal security practices because it increases security by setting a minimum manning level on shifts. Response at 20. The Union contends that the proposal concerns the number[] of employees or positions assigned to any tour of duty under § 7106(b)(1) of the Statute. Id. at 21.

2.     Agency

      The Agency contends that the Authority has previously held a similar minimum manning proposal to be nonnegotiable on the ground that it interfered with management's right to determine its internal security practices. Providence, 32 FLRA at 956-958; SOP at 10. Moreover, according to the Agency, the proposal in Providence was deemed nonnegotiable by the Authority in part because it involved a § 7106(b)(1) matter the Agency had elected not to negotiate. The Agency contends it has not elected to negotiate Proposal 4(1) because it violates management's rights under § 7106(a)(1). SOP at 10.

C.     Analysis and Conclusions

1.     Meaning of the Proposal

      Proposal 4(1), as worded and interpreted by the Union, is intended to maintain a minimum of two officers on each shift.

2.     Proposal 4(1), Affects a Management Right under § 7106(a).

      In Providence, 32 FLRA at 956-57, the Authority found that a nearly identical proposal interfered with management's right to determine its internal security practices under § 7106(a)(1). The Authority stated, [t]he term `internal security practices' includes those policies and actions which are part of the Agency's plan to secure or safeguard its personnel, physical property, and operations against internal or external risks. Id. at 957. Moreover, the Authority stated that [t]he determination of the practices and policies which are necessary to the accomplishment of the security function of an agency, including the equipment to be used and the assignment of personnel, is directly related to the determination of an agency's internal security practices. Id.

      Where an agency shows a link or reasonable connection between its goal of safeguarding personnel or property and its practice designed to implement that goal, a proposal which directly interferes with the agency's practice conflicts with the agency's right under § 7106(a)(1). AFGE, Council 214, 53 FLRA 131, 135 (1997). As the Agency's allocation of staff is directly related to its expressed security concerns, the Agency has sufficiently shown that the Union proposal affects its right to set internal security practices under § 7106(a)(1). See Providence, 32 FLRA at 956-57.

3.     Proposal 4(1) is Electively Negotiable under § 7106(b)(1).

      The Union alleges that the proposal concerns a matter under § 7106(b)(1) involving the number[] of employees or positions assigned to any tour of duty. Response at 21. As noted above, § 7106(b) is an exception to management rights under § 7106(a). NAGE, Local R14-23, 54 FLRA 1302 (1998). Therefore, if the Union is correct that the proposal concerns a § 7106(b)(1) matter, the Authority will find that the proposal is negotiable at the election of the agency. Id.

      We determined in Providence, 32 FLRA at 957, that a virtually identical proposal concerned management's § 7106(b)(1) right to determine the number of employees assigned to a tour of duty. Moreover, the Agency does not contest that this proposal also affects a § 7106(b)(1) right. As such, since § 7106(b)(1) is an exception to § 7106(a), this proposal is negotiable at the election of the Agency. Prison Locals, 52 FLRA at 1494. Therefore, we dismiss this portion of the petition for review. [ v57 p380 ]

VII.     Proposal 4(2)

A.     Proposal 4(2)

     - Create a new Minimum Manning Article as Article VIII (pushing all Article numbers in the Agreement up by one), with the following parameters:

. . .

     - Section 2 shall incorporate the "Sergeant's Agreement" regarding the numbers of hours and shifts worked by Sergeants. This Section shall state as follows:

"At least one (1) Supervisor (Sergeant) shall be assigned to all off-hour shifts (i.e. 4:00 to 12:00 and 12:00 to 8:00). Notwithstanding, the Chief shall serve as the supervisor on duty during the Monday through Friday day shifts."

B.     Positions of the Parties

1.     Union

      The Union states that this proposal stems from a Sergeant's Agreement the parties entered into after the Union filed a grievance claiming that Sergeants should be on duty at night and would simply incorporate that agreement into the parties' collective bargaining agreement. The Union also contends that the settlement agreement does not benefit the Sergeants, but, rather, benefits bargaining unit employees by providing added security. The Union asserts that Proposal 4(2) concerns the numbers of employees assigned to a particular tour of duty under § 7106(b)(1).

2.     Agency

      The Agency contends that this Sergeant's Agreement is nonnegotiable because: (1) the Sergeants are not bargaining unit members and the Union has no right to negotiate over conditions of employment of non-bargaining unit employees; and (2) the authority to assign supervisors is a management right under § 7106(a). SOP at 10.

C.     Analysis and Conclusions

1.     Meaning of the Proposal

      Proposal 4(2), as worded and explained by the Union, requires the Agency to assign a supervisor (Sergeant) on each off-hour shift, i.e., 4:00 PM to 12:00 AM and 12:00 AM to 8:00 AM. The Chief, however, will be assigned on a Monday through Friday day schedule.

2.     Proposal 4(2) is Outside the Duty to Bargain

      By mandating the minimum number of supervisors on duty during off-hour shifts, the proposal would regulate conditions of employment for supervisors who are excluded from the bargaining unit under § 7112(b)(1). AFGE, Local 32, 51 FLRA 491, 500-01 (1995). The Authority has held that an agency does not have a duty to bargain with a union over proposals that directly implicate the conditions of employment of supervisors. National Air Traffic Controllers Association, Rochester Local, 56 FLRA 288, 291 (2000) (Rochester). [n13] As such, this proposal is outside the duty to bargain. Id. at 292. [n14] 

VIII.     Proposal 7

A.     Proposal 7

The Employer may grant court leave to employees under proper summons or official request to serve as a witness on behalf of a government entity. The Employee shall promptly notify the Employer so that arrangements can be made for his absence from scheduled duty. Upon completion of court leave, the employee shall promptly submit to the Employer satisfactory evidence of his service. The employee shall be paid in accordance with applicable regulations. Any officer granted court leave under this Article shall be placed on a Monday through Friday work week. [The language in italics is in dispute.]

B.     Positions of the Parties

1.     Union

      The Union argues that the proposal is meant to assure that the Agency will not temporarily transfer employees to weekend duty when the employees would normally work weekdays during a week in which they are on court leave. Response at 24. The Union states that Proposal 7 is an appropriate arrangement in that it would protect an employee's right to paid court leave by limiting the Agency's ability to assign an employee to a shift other than Monday through Friday when the [ v57 p381 ] employee is granted court leave. The Union further argues that the proposal is narrowly tailored and is intended to provide a remedy for employees adversely affected by the exercise of management's right to assign, citing AFGE, Local 3354, 54 FLRA 807 (1998) (Local 3354).

      The Union also asserts that Proposal 7 is negotiable pursuant to E.O. 12871 because it deals with the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or the technology, methods, and means of performing work. Id. (emphasis in original).

2.     Agency

      The Agency argues that this proposal affects its ability to assign its employees to shifts pursuant to its right to determine internal security practices under § 7106(a)(1). SOP at 12. The Agency maintains that changing the shift of an officer on jury duty would necessarily require re-scheduling another officer to fill the vacancy created. Id.

      Furthermore, the Agency contends that internal security policy requires rotating shifts. By rotating the shifts, the Agency claims that all officers are trained to work under varying conditions. Id. at 13 (citing FOP, Lodge 1-F, 51 FLRA 143 (1995) (Lodge 1-F)).

      Finally, the Agency argues that the Union failed to raise a claim that the proposal was an appropriate arrangement under § 7106(b)(3) in its Petition for Review. SOP at 13. [n15] It further claims that, even if the Union had argued that the proposal was an appropriate arrangement, the proposal would not be found to be negotiable under § 7106(b)(3) because it violate[s] the right to determine security. Id. (citing AFGE, Council 214, 53 FLRA 130, 134-136 (1998)).

C.     Analysis and Conclusions

1.     Meaning of Proposal

      According to the Union, Proposal 7 would preserve employees' entitlement to paid court leave by limiting the Agency's ability to reschedule employees who must be in court during their regular Monday through Friday shifts from those shifts to weekend shifts. The Union also contends that the proposal only requires the Agency to keep the [employee] in his/her normal shift/tour of duty. Response at 24. However, the plain wording of this proposal indicates that any employee granted court leave shall be rescheduled to work a Monday through Friday shift, regardless of the employee's normal shift. Therefore, by its terms, the proposal would require the Agency to place bargaining unit members on a Monday through Friday rotation while on court leave, regardless of their normal weekly schedule.

2.     Proposal 7 is an Appropriate Arrangement  [n16] 

      The Union does not dispute the Agency's contention that Proposal 7 affects management's right to determine its internal security practices under § 7106(a)(1). Therefore, we find that the proposal affects this right. GSA, 55 FLRA at 452. We next determine whether the proposal is negotiable as an appropriate arrangement under § 7106(b)(3), and then, if necessary, whether it is negotiable at the election of the Agency under § 7106(b)(1). Id. at 451.

      In determining whether a proposal is an appropriate arrangement, the Authority uses the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). The Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. See United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992); AFGE, Local 1900, 51 FLRA 133, 141 (1995) (Local 1900). The adverse effect, however, need not flow from the management right that a given proposal affects. See, e.g., NTEU, Chapter 243, 49 FLRA 176, 185 (1994) (Member Aremdariz concurring in part and dissenting in part) (Chapter 243). The claimed arrangement must also be sufficiently tailored to compensate employees suffering adverse effects attributable to the exercise of management's rights. See id. at 184.

      If a proposal is determined to be an arrangement, then the Authority determines whether it is an appropriate arrangement by assessing whether it excessively interferes with the relevant management right. The Authority makes this determination by weighing the [ v57 p382 ] competing practical needs of the employees and managers. KANG, 21 FLRA at 31-32.

      The Agency does not dispute that the proposal is an arrangement for employees adversely affected by the exercise of a management right but argues that it is not appropriate.

      As noted above, Proposal 7 requires the Agency to place employees on a Monday through Friday schedule while on court leave approved by the Agency. [n17] The benefit afforded employees by the proposal is that it would allow them to be paid for court leave without having to work on the weekend in order to make up lost time. According to the Union, transferring employees to weekend shifts has allowed the Agency in the past to circumvent the requirement to pay employees for court leave.

      The Agency argues that the proposal would interfere with its ability to set rotating schedules and, as a result, affects its ability to establish its internal security practices. However, the proposal mandates that employees promptly notify the employer so that arrangements for their absence can be made. This notification thus serves to minimize the adverse impact on the exercise of management's rights under § 7106(a)(1).

      Consequently, on balance, we conclude that the benefit conferred upon the employee to be paid such court leave instead of being scheduled to a weekend shift outweighs the minor burden placed on management's right to determine its internal security practices by temporarily rescheduling an employee's shift. Therefore, we find Proposal 7 to be an appropriate arrangement and within the duty to bargain. In light of this, we will not address the Union's contention that the proposal is negotiable at the election of the Agency under § 7106(b)(1).

IX.     Proposal 8

A.     Proposal 8

The salaries of all employees covered by this Agreement shall be paid at level G.S. 7 in accordance with applicable laws.

B.     Positions of the Parties

1.     Union

      The Union contends that, pursuant to E.O. 12871, Proposal 8 concerns the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or the technology, methods, and means of performing work. Response at 26 (emphasis added in the original). Accordingly, the Union claims the proposal is negotiable.

2.     Agency

      The Agency asserts that a proposal must concern a condition of employment to be negotiable. In this regard, the Agency notes that, under § 7103(a)(14)(B) of the Statute, matters relating to the classification of employees are excluded from the definition of conditions of employment. SOP at 14; NAGE, Local R5-168, 53 FLRA 1622, 1624-25 (1998). Accordingly, the Agency contends that the proposal is nonnegotiable.

C.     Analysis and Conclusions

1.     Meaning of Proposal

      As worded, Proposal 8 requires all employees covered by the agreement to be paid at the GS-7 level. According to the Union, the proposal is intended to negotiate the G.S. level of bargaining unit member's salaries, with the [Union] proposing to move the level from G.S. 6 to G.S. 7. Response at 26. The Union's interpretation comports with the plain language of the proposal. Therefore, we find that Proposal 8 would mandate reclassifying employees from a GS-6 to a GS-7 pay level.

2.     Proposal 8 is Excluded From the Definition of Conditions of Employment by § 7103(a)(14)(B) of the Statute

      Section 7103(a)(14)(B) excludes policies, practices, and matters relating to the classification of any position from the definition of conditions of employment and, by extension, the duty to bargain. The Authority has held that a proposal that assigns a specific grade level to some specific existing position concerns a classification matter under § 7103(a)(14)(B). AFGE, Local 948, 55 FLRA 582, 584 (1999). [ v57 p383 ]

      Here, the proposal would have the effect of reclassifying the grade level of bargaining unit members' positions from GS-6 to GS-7. As such, the proposal involves a classification matter under § 7103(a)(14)(B).

      Moreover, to the extent the Union does not seek the re-classification of employees, but merely wishes the employees to be paid a GS-7 wage, this proposal is inconsistent with law. Again, under § 7103(a)(14)(C), policies, practices and matters that are specifically provided for by statute are not conditions of employment. The wage rates of General Schedule employees are established pursuant to 5 U.S.C. §§ 5331-5338. Consequently, requiring employees to be paid at the GS-7 level concerns a matter specifically provided for by statute. As such, it is excluded from the definition of conditions of employment. See AFSCME, Local 3097, 42 FLRA 412, 491 (1991); NAGE, Local R1-109, 36 FLRA 175, 179 (1990); NAGE, Local R4-26, 40 FLRA 118, 141-42 (1991).

      Under either interpretation, Proposal 8 is outside the duty to bargain. In view of this conclusion, it is unnecessary to further address the Union's contention that this proposal is negotiable under § 7106(b)(1). See NAGE, Local R5-168, 53 FLRA at 1625.

X.     Proposal 10(a)

A.     Proposal 10(a)

     Create a section 4 regarding In-Service Training that states:

     (a) All officers attending in-service training shall be paid at the overtime rate of pay;

B.     Positions of the Parties

1.     Union

      The Union argues that Proposal 10(a) is an attempt to secure employees' rights to obtain overtime when they are required to attend training over and above their normal working hours. Response at 28. According to the Union, the proposal, along with Proposal 10(b), discussed below, is intended to address the possibility that the Agency will temporarily transfer employees from regularly scheduled shifts on which the training is not offered to a shift where the training is offered.

      Furthermore, the Union states that it withdraws its original interpretation that overtime payments are required for all in-service training. [n18] Id. at 27. Instead, the Union explains that Proposal 10(a) only requires overtime payments to employees receiving training during time that does not fall within their normal shifts.

2.     Agency

      The Agency argues that Proposal 10(a) is contrary to 5 C.F.R. § 550.111 because it directs the Agency to pay overtime to employees where overtime is not authorized.

C.     Analysis and Conclusions

1.     Meaning of the Proposal

      As worded, Proposal 10(a) would mandate overtime payment for all in-service training. Although the Union explains that this proposal only requires the payment of overtime to officers receiving training during hours that are over and above their normal tour of duty the explanation does not comport with the plain wording of the proposal and we do not adopt it. See IFPTE, Local 3, 51 FLRA at 459.

2.     Proposal 10(a) is Contrary to 5 C.F.R. §§ 550.111 and 551.501  [n19] 

      Proposal 10(a), as worded, would require the Agency to compensate employees at an overtime rate for any in-service training they attend. Under 5 C.F.R. §§ 550.111 and 551.501 et seq., with certain exceptions, overtime payment is warranted only when an employee works in excess of 8 hours a day or 40 hours a week. Proposal 10(a) provides that an employee only needs to attend in-service training in order to be paid overtime, regardless of whether the employee, by attending that training, works in excess of 8 hours in a day or 40 hours in a week. There is no contention that any of the exceptions to 5 C.F.R. §§ 550.111 and 551.501 apply. Therefore, Proposal 10(a) is inconsistent with 5 C.F.R. §§ 550.111 and 551.501, which are Government-wide regulations. [n20] As such, under § 7117(a)(1) of the Statute, the proposal is outside the duty to bargain. [ v57 p384 ]

XI.     Proposal 10(b)

A.     Proposal 10(b)

     Create a section 4 regarding In-Service Training that states:

. . .

     (b) No officer may be moved from his/her work hours in order to attend in-service training.

B.     Positions of the Parties

1.     Union

      According to the Union, the proposal is intended to address the possibility that the Agency will temporarily transfer employees from regularly scheduled shifts on which the training is not offered to a shift where the training is offered.

      The Union further asserts that the proposal is an appropriate arrangement because it is aimed at protecting employees who are adversely affected by the exercise of management's shift assignment authority under § 7106(a)(1). Response at 28.

      The Union also asserts that the proposal is negotiable pursuant to E.O. 12871 because it concerns the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or the technology, methods, and means of performing work. Id. at 30.

2.     Agency

      The Agency argues that the proposal violates its rights to assign employees and assign work, under § 7106(a)(2)(A) and (B) of the Statute, because those rights include the right to train employees. SOP at 15. The Agency also asserts that the right to assign includes the right to determine when work, including training, will be done. Id.

      The Agency also contends that the proposal interferes with management's right to determine its internal security practices. The Agency argues that its ability to train its police officers is essential in order to provide internal security. SOP at 16. The Agency states that officers who do not receive mandatory training for the requisite 40 hours are not allowed to exercise statutory law enforcement and arrest powers. Id. at 15-16. According to the Agency, the mandatory training is conducted offsite. The Agency claims in this regard that there is a link between the scheduling of employees and the internal security policy of training these employees.

C.     Analysis and Conclusions

1.     Meaning of the Proposal

      As worded, Proposal 10(b) would preclude the Agency from reassigning employees from their regular shift to another shift in order to attend training.

2.     Proposal 10(b) Affects a Management Right Under § 7106(a)

      The Union does not dispute the Agency's contention that Proposal 10(b) affects the exercise of management's rights and, accordingly, we find such an effect. GSA, 55 FLRA at 452. Consequently, consistent with Local 2910, we will first determine whether the proposal is negotiable as an appropriate arrangement under § 7106(b)(3), and then, if necessary, whether it is negotiable at the election of the Agency under § 7106(b)(1). Id. at 451.

3.     Proposal 10(b) is Not an Appropriate Arrangement

      As previously discussed, to determine whether a proposal is an appropriate arrangement, the Authority uses the analysis set forth in KANG. In this case, the Agency asserts that Proposal 10(b) interferes with management's right to determine its internal security practices, by limiting its ability to train officers, and its rights to assign employees and assign work. The Agency does not, however, dispute that the proposal is an arrangement for employees adversely affected by the exercise of those management rights. Therefore, in the absence of any dispute in this regard, it is necessary only to resolve whether it is an appropriate arrangement. NTEU, 55 FLRA at 1174, 1175 (1999).

      In determining whether a proposal is appropriate, or inappropriate because it excessively interferes with a management right, the Authority balances the competing practical needs of management against the needs of employees. KANG, 21 FLRA at 31-32.

      We conclude Proposal 10(b) is not an appropriate arrangement. In particular, although the proposal benefits employees by preserving the stability of their shift assignments, we find that this benefit does not outweigh the burden on management's ability to provide scheduled training necessary to ensure the capabilities of its internal security personnel. [ v57 p385 ]

      In this regard, the Union does not dispute the Agency's claim that the security personnel covered by the proposal must complete mandatory training in order to obtain certain specific authority necessary to their function. The Union also does not dispute the Agency's claim that the required training is conducted offsite (specifically in Little Rock, Arkansas) during a specific 40 hour period. [n21] Proposal 10(b) would prevent the Agency from assigning employees on shifts falling outside the period when the course is scheduled to that training. Consequently, the proposal would preclude the Agency from assigning such employees on those shifts to the training required for them to perform as security personnel. [n22] In this regard, we note the greater burden placed upon the Agency here as opposed to its burden under Proposal 7. The proposal would entirely prevent the Agency from assigning some employees to training that is off-site and mandatory for them to be able to perform their primary duties. Moreover, unlike Proposal 7, the proposal does not include any mechanism that would minimize its effect on management's ability to exercise its rights, as the notice requirement does with respect to Proposal 7. Accordingly, we conclude that Proposal 10(b) excessively interferes with management's rights to assign work and determine its internal security practices and does not constitute an appropriate arrangement within the meaning of § 7106(b)(3) of the Statute.

4.     Proposal 10(b) is Not Electively Negotiable under § 7106(b)(1)

      The Union also alleges that the proposal concerns a matter under § 7106(b)(1) involving the number . . . of employees or positions assigned to any . . . tour of duty. Response at 30. As noted above, § 7106(b) is an exception to management rights under § 7106(a). NAGE, Local R14-23, 54 FLRA 1302. Therefore, if the Union is correct that the proposal concerns a § 7106(b)(1) matter, the Authority will find that the proposal is negotiable at the election of the agency. Id.

      The Union states only that Proposal 10(b) concerns the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project or tour of duty. The Union provides no support for this contention and, on its face, the proposal does not concern a § 7106(b)(1) matter. Consequently, the contention amounts to nothing more than a bare assertion. Therefore, consistent with Authority precedent, in the absence of support in the record, we decline to find that the proposal concerns a § 7106(b)(1) matter and we dismiss the petition for review as to this proposal. AFGE, Local 2031, 56 FLRA at 34.

XII.     Proposal 13(a)

A.     Proposal 13(a)

     An F.O.P. representative shall be available at all times to any employee subject to disciplinary action. Any interview or questioning of the employee shall be reasonably delayed in order to make said F.O.P. representative available.

B.     Positions of the Parties

1.     Union

      The Union contends that Proposal 13(a) is merely intended to codify [Weingarten] rights and does not violate management's rights under § 7106(a)(2)(A). [n23] Response at 14. According to the Union, the proposal would allow an employee to obtain a Union representative either before or during an interrogation in a manner consistent with the Supreme Court's decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). [n24] The Union argues that Proposal 13(a) is a negotiable procedure pursuant to § 7106(b)(2) and is an appropriate arrangement. Response at 10-11, citing AFGE Local 3354, 54 FLRA 807 (1998).

2.     Agency

      The Agency argues that Proposal 13(a) violates § 7114(a)(2)(B) by requiring that a Union representative be present at an employee's disciplinary examination, rather than merely providing the opportunity for a union representative to be present. SOP at 18. Moreover, the Agency contends that, under the proposal, the Union could prevent any disciplinary action by simply not appearing. Id. [ v57 p386 ]

C.     Analysis and Conclusions

1.     Meaning of Proposal

      By its terms, Proposal 13(a) would require that a Union representative be available at all times to any employee subject to disciplinary action. Moreover, any interview or questioning of the employee would have to be reasonably delayed in order to make such representative available.

      The Agency interprets this proposal as requiring the presence of a Union representative during an employee's disciplinary examination, thus enabling the Union to prevent any disciplinary questioning by simply not appearing. SOP at 18. This interpretation, however, is not supported by the plain wording of the proposal. Rather, the proposal requires a Union representative to be available to assist an employee during a disciplinary examination. Moreover, the proposal limits an employee's right to delay an examination in order to obtain a Union representative to a reasonable amount of time. [n25] 

2.     Proposal 13(a) is Not Contrary to § 7114.

      In § 7114(a)(2)(B) of the Statute, Congress has codified what are commonly known as Weingarten rights. SSA, 55 FLRA 978, 986 n.2 (1999) (Member Cabaniss dissenting on other grounds). For these rights to be triggered, the following criteria must be met: (1) the meeting must be an examination of an employee by a representative of the agency; (2) in connection with an investigation; (3) the employee must reasonably believe that the examination may result in disciplinary action against the employee and (4) the employee must request representation. AFGE, Local 1941 v. FLRA, 837 F.2d 495, 498 (D.C. Cir. 1988).

      The Authority has held that proposals which supplement employees' rights to union representation under § 7114(a)(2)(B) of the Statute are negotiable, if they are otherwise consistent with law and regulation. NTEU, 47 FLRA 370, 379 (1993), petition granted, enforcement denied as to other matters, 25 F.3d 229 (4th Cir. 1994). The Agency contends that the proposal is inconsistent with § 7114(a)(2)(B) because it requires the presence of the exclusive representative during employee questioning. However, as construed, the proposal merely requires a reasonable delay to allow an employee to obtain such a representative. As such, the Agency's contention that this proposal is contrary to law is not supported.

3.     Proposal 13(a) does not affect Management's Right to Discipline under § 7106(a)(2)(A)

      The Agency also argues that Proposal 13(a) would abrogate its right to discipline employees because a Union representative could prevent any disciplinary discussions by merely not appearing. The Agency cites AFGE, AFL-CIO, Local 2298, 25 FLRA 517 (1987) (Local 2298), for this proposition.

      However, in Local 2298, the Authority found a proposal nonnegotiable that established a contractual statute of limitations for disciplinary actions. This proposal, by contrast, does not attempt to limit the time frame for an Agency to initiate a disciplinary action. Rather, this proposal would allow an employee to delay taking part in disciplinary questioning only until a Union representative becomes available or a reasonable amount of time for the Union representative to become available has elapsed. As such, the Agency has not shown that this proposal affects its right to discipline under § 7106(a)(2)(A).

      Accordingly, we find Proposal 13(a) within the duty to bargain, and we need not address the Union's arguments that the proposal is negotiable as a procedure or an appropriate arrangement under § 7106(b)(2) or (3) of the Statute.

XIII.      Proposal 13(b)

A.     Proposal 13(b)

     (b) Create a Section 2 incorporating the rights afforded police officers in the United States Supreme Court case Garrity v. New Jersey concerning police officer's rights during departmental interrogations. (This is already federal law).

B.     Positions of the Parties

1.     Union

      The Union argues that Proposal 13(b) would incorporate constitutional due process rights into the parties' collective bargaining agreement. Response at 9. More specifically, with respect to Garrity v. State of New Jersey, 385 U.S. 493 (1967) (Garrity), the Union quotes that decision as follows:

We now hold the protection of the individual under the Fourteenth Amendment against coerced [ v57 p387 ] statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.

Response at 15-16 (emphasis added).

      According to the Union, Garrity means that the employer cannot force an employee to choose between self-incrimination or the loss of his/her jobs. Moreover, the Union states that the Garrity [r]ule has been upheld and further clarified, but does not identify how the decision has been clarified. Response at 16.

      The Union asserts that Proposal 13(b) is negotiable because it is a procedure pursuant to § 7106(b)(2) and is an appropriate arrangement under § 7106(b)(3). Id. (citing Local 3354, 54 FLRA at 807). Furthermore, the Union asserts that the Agency's contention that the proposal violates the excessive interference and acting at all tests is inaccurate because [t]he [Agency] is not prevented from acting on its right to discipline employees and constitutionally its decision is not final until due process has been exhausted. Id. at 11.

      With respect to its contention that Proposal 13(b) is an appropriate arrangement, the Union maintains that the proposal is specifically designed to protect employees who are adversely affected by the Agency's exercise of its disciplinary authority under § 7106(a)(2)(A). The Union cites NFFE, Local 1214, 51 FLRA 1362 (1996).

2.     Agency

      The Agency contends that the second sentence of Proposal 13(b) does not constitute a proposal as it lacks specificity, conditions and criteria. SOP at 19, citing AFGE, National Veterans Administration Council, 42 FLRA 1327, 1331 (1991) (NVAC).

C.     Analysis and Conclusions

1.     Meaning of the Proposal

      By its terms, Proposal 13(b) would incorporate the employee rights outlined in Garrity. As the Union notes, the Supreme Court's holding in Garrity was that, protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office. Garrity, 385 U.S. at 500.

      Accordingly, Proposal 13(b) is interpreted as incorporating the Supreme Court's express conclusion in Garrity, i.e., that protection of the individual against self incrimination prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office. To the extent the Union means to suggest that the proposal would apply to the use of statements in administrative, as well as criminal, proceedings, its explanation does not comport with the plain wording of the proposal, which is limited to the holding in Garrity, and therefore, will not be adopted by the Authority. IFPTE, Local 3, 51 FLRA at 459.

2.     Proposal 13(b) Does Not Lack Specificity.

      According to the Agency, Proposal 13(b) lacks specificity, conditions and criteria. SOP at 19; citing NVAC, 42 FLRA at 1331. In NVAC, the Authority determined that a proposal was not sufficiently specific and delimited because of the uncertainty as to the definition of two terms in that proposal. Moreover, in that case the union offered competing explanations for those terms and the plain wording of the proposal did not sufficiently clarify the terms used. NVAC, 42 FLRA at 1331.

      Here, however, it is possible to determine the meaning of the proposal. As worded, the proposal incorporates the holding in Garrity. The Agency presents no further argument that this proposal is inconsistent with law, rule or regulation. Therefore, in the absence of any additional argument, this proposal is within the duty to bargain. [n26] 

XIV.     Proposal 13(c)

A.     Proposal 13(c)  [n27] 

     A.     An officer subject to disciplinary action may appeal the disciplinary action to a "committee of Hearing Officers" made up of one (1) hearing officer designated by the Employer, one (1) hearing officer designated by the F.O.P., and one (1) neutral chairman designated by mutual agreement between the Employer hearing officer and the F.O.P. hearing officer. Said Committee shall be created within thirty (30) days of the employee's request for a hearing.

     If the Employer hearing officer and the F.O.P. hearing officer are unable to agree on a neutral chairman, the chairman shall be chosen from a list of five (5) persons which list shall be agreed [ v57 p388 ] upon and created by the Employer and the F.O.P. prior to the implementation of this "Committee of Hearing Officers" procedure.

     B.     This "Committee of Hearing Officers" procedure shall be governed by the rules and regulations set forth in Appendix "A" of this Agreement.

     - See the attached Exhibit "A" to this proposal for an outline of the "Committee of Hearing Officers" rules and regulations.

B.     Positions of the Parties

1.     Union

      According to the Union, Proposal 13(c) is intended to incorporate constitutional due process rights into the parties' collective bargaining agreement and to establish a procedure for bargaining unit employees subject to disciplinary action. Response at 9. The Union contends that, contrary to the Agency's assertion, under Proposal 13(c) the Agency retains the right to discipline employees because it may still determine the `range of penalties, the consistency of penalties, and the consideration of certain evidence in deciding the appropriate penalty.' Id. at 10. In this regard, the Union argues that even without the proposal, the Agency's decisions concerning discipline are not final until due process has been exhausted. Id at 10, 11. The Union also contends that Proposal 13(c) is negotiable as an appropriate arrangement under § 7106(b)(3), and as a negotiable procedure under § 7106(b)(2). Id. at 10-11.

2.     Agency

      The Agency asserts that the Union has clarified [Proposal 13(c)] to be a system which functions prior to management taking disciplinary action and permits Union involvement in selecting members of the `Committee of Hearing Officers' to determine the level of discipline taken, if any. In support of this argument, the Agency notes that Exhibit A, section I(A)(ii) refers to the penalty proposed by the Agency as the recommended penalty. Based on this language, the Agency contends that, under the proposal, the Agency would propose disciplinary action but a committee composed of both management and Union [would] make the final decision. SOP at 17. Therefore, according to the Agency, the proposal violates its right to discipline under § 7106(a)(2)(A).

      The Agency further asserts that Proposal 13(c) is not a procedure under § 7106(b)(2) because it violates both the excessive interference and the acting at all tests. The Agency states that the proposal violates the excessive interference test because it goes to the substance of the final decision on discipline. Id. at 18. Further, the Agency claims that the proposal violates the acting at all test by preventing [the] Agency from following the procedures outlined by law to reach a decision. Id. (citing NFFE, Local 1745 v. FLRA, 828 F.2d 834 (D.C. Cir. 1987)).

C.     Analysis and Conclusions

1.     Meaning of the Proposal

      As worded, Proposal 13(c) would establish a Committee of Hearing Officers that would include a hearing officer designated by the Union. The committee would be convened when an employee who had received [n]otice of the disciplinary action[,] including [t]he recommended penalty, requested a hearing. The committee could sustain, modify or reverse the complaint, charges, or disciplinary action against the employee, and its decision would be final and binding. See Response at 6-8.

      It is not clear based solely on this language what would happen if the employee did not request a hearing, and whether the Agency's recommended penalty would take effect before or after the hearing. However, the Union does not dispute the Agency's statement that under the proposal, the committee would determine the level of discipline to be imposed. Rather, the Union merely asserts that the Agency's decisions concerning discipline would not be final even in the absence of the proposal because of the requirements of due process. Response at 10. Consequently, we construe Proposal 13 as precluding the Agency from making final decisions to impose discipline. Instead, the committee convened pursuant to the proposal would make such decisions.

2.     Proposal 13(c) Affects Management's Right to Discipline.

      Proposal 13(c) requires disciplinary matters to come before a committee of three members, including a member of the Union. The members would then review the recommendation of the Agency's deciding official as to the appropriate disciplinary action to be taken. Such determination would be "final and binding."

      Section 7106(a)(2)(A) of the Statute makes it clear that an Agency has the right to discipline its employees. Within this right, is the right, when taking final disciplinary actions, to discuss and deliberate on the factors bearing upon the final decision. We have found that [u]nion presence, whether active or passive, at such discussions and deliberations interferes with an agency's [ v57 p389 ] right to engage freely in internal discussions and deliberations prior to deciding to take actions within the scope of section 7106. AFGE, AFL-CIO, Local 3732, 39 FLRA 187, 212 (1991) (Local 3732) citing NFFE, Local 2099, 35 FLRA 362, 366 (1990). As such, this proposal impermissibly calls for Union participation in deliberating over a "final and binding" decision on employees' discipline, and therefore, affects management's right to discipline.

3.     Proposal 13(c) is Not a Procedure Under § 7106(b)(2)

      With respect to § 7106(b)(2), the Union argues that the proposal does not violate the acting at all or excessive interference tests. Rather, it argues that the Agency is not prevented from acting upon its right to discipline employees and that this proposal sets forth due process in reaching such a disciplinary determination.

      However, the proposal would require the Agency to include a Union representative in disciplinary deliberations when rendering a "final and binding" decision as to discipline. As discussed above, this participation affects management's right to engage in free and open deliberations when exercising its right to discipline. Therefore, as it directly interferes with management's right to discipline, and applying Authority precedent, it is not a procedure under § 7106(b)(2). NFFE, Local 1745 v. FLRA, 828 F.2d 834, 841 (D.C. Cir. 1987), aff'g, NFFE, Local 1745, 13 FLRA 543 (1983) (court rejected union's claim that proposal authorizing union participation on rating panel constituted a procedure under § 7106(b)(2)); see also, Chapter 243, 49 FLRA at 188 (joint labor-management activities constitute negotiable procedures under § 7106(b)(2) only where the activities do not involve the union in management's decision-making process pursuant to the exercise of a management right).

4.     Proposal 13(c) Is Not an Appropriate Arrangement

      The Union also describes Proposal 13(c) as an appropriate arrangement under § 7106(b)(3). In determining whether a proposal is an appropriate arrangement, the Authority uses the analysis set forth in KANG, 21 FLRA 24.

      If the proposal is determined to be an arrangement for the exercise of management's rights, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right. The Authority reaches this determination by weighing the competing practical needs of the employees and managers. KANG, 21 FLRA at 31-32.

      Here, the Union argues that Proposal 13(c) is intended to provide an arrangement for employees affected by the exercise of management's right to discipline. Moreover, the Union argues that the proposal is tailored in that it protects adversely affected employees by incorporating fundamental, constitutional due process rights. The Union also contends that the proposal does not excessively interfere with management's rights because employees are entitled to these constitutional protections. Response at 12.

      Proposal 13(c), as worded, would provide protections to employees subject to notices of disciplinary action brought by the Agency. Thus, the proposal is tailored in that it only concerns employees subjected to management's exercise of its right to discipline. Accordingly, Proposal 13(c) is an arrangement for employees adversely affected by the exercise of management's rights within the meaning of § 7106(a)(2)(A). Patent Office Professional Association, 53 FLRA 625, 642 (1997).

      However, the burden placed upon the Agency's right to discipline under this proposal is extensive. As construed, Proposal 13(c) would preclude the Agency from taking final disciplinary action without the Union having at least the right to engage in the deliberative process and voting on a binding decision. Accordingly, in balancing the burden the proposal imposes on management's right against the benefit to employees, the burden placed upon the Agency is greater. Therefore, the proposal is not appropriate and, consequently, does not qualify as an appropriate arrangement under § 7106(b)(3). [ v57 p390 ]

XV.     Proposal 1(b)

A.     Proposal 1(b)

     (a)     Nothing in this agreement shall affect the authority of any management official

          (A)     to hire, assign, direct, layoff and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees after sufficient due process has been afforded to such employees; [Italicized language in dispute]

B.     Positions of the Parties

1.     Union

      The Union states that the term due process found in Proposal 1(b) should be read in conjunction with Proposals 13(a), (b) and (c). Response at 9. Those proposals generally set forth due process standards the Union wishes to incorporate. According to the Union,[w]hen Proposals 1(b) and 13 are read together, it is abundantly clear that the [Union] is merely attempting to negotiate into the contract the incorporation of constitutional due process rights (Proposal #13(a) and (b)), and the establishment of a due process procedure (Proposal 13(c)). Id.

      The Union also asserts that the proposal is a negotiable procedure pursuant to § 7106(b)(2) and an appropriate arrangement under § 7106(b)(3). Id. at 10-11, citing Local 3354, 54 FLRA at 807. The Union maintains that the proposal is an appropriate arrangement because it is specifically and narrowly aimed at protecting employees who are adversely affected by the Agency's exercise of its disciplinary authority under § 7106(a)(2)(A).

2.     Agency

      The Agency contends that Proposal 1(b) lacks specificity, citing NVAC, 42 FLRA 1327. The Agency argues that, because the proposal lacks specificity, it cannot determine whether the proposal violates management's right to discipline under § 7106(a)(2)(A), conflicts with any statutory or regulatory due process provision, or is a procedure under § 7106(b)(2). SOP at 6.

C.     Analysis and Conclusions

1.     Meaning of Proposal

      As worded, Proposal 1(b) requires the Agency to offer employees sufficient due process prior to taking disciplinary action. The Union states that the term due process in this proposal should be read in conjunction with the due process rights outlined in Proposals 13(a), 13(b) and 13(c). Since the Union's explanation comports with the wording of the proposal, the Authority will adopt that explanation. IFPTE, Local 3, 51 FLRA at 459; Local 1900, 51 FLRA at 138-39.

2.     Proposal 1(b) Falls Outside the Duty to Bargain

      As construed, Proposal 1(b) would require the Agency to provide employees facing possible discipline with the due process rights set forth in Proposals 13(a), 13(b) and 13(c). Since, for the reasons discussed earlier, Proposal 13(c) is outside the duty to bargain, it follows that Proposal 1(b) is also outside the duty to bargain. The Authority has held that a union may not through incorporation include . . . matters which could not be included directly through collective bargaining. AFGE, Council of Prison Locals, 47 FLRA 836, 841 (1993) (Member Armendariz dissenting). Consequently, this proposal is outside the duty to bargain.

XVI.      Order

      The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate over Proposals 7, 13(a) and 13(b).

      The petition for review with respect to proposals 1(c) and 4(1) is dismissed because these proposals are negotiable only at the election of the Agency.

      The petition for review with respect to proposals 1(a), 1(b), 2, 3, 4(2), 8, 10(a), 10(b) and 13(c) is dismissed because these proposals are outside the duty to bargain. [ v57 p391 ]

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APPENDIX

EXHIBIT "A"

RULES AND REGULATIONS OF THE
COMMITTEE OF HEARING OFFICERS

PROCEDURE

I.     Notice of Disciplinary Action and Request for Hearing.

(a)     Notice of the disciplinary action shall be in writing and shall inform the employee of the following:

(i)     The nature of the charge(s) against him/her and, if known, the date(s) of the alleged offense(s);

(ii)     The recommended penalty;

(iii)     That the employee has ten (10) days from receipt of the notice within which to submit a written request for a hearing; and

(iv)     The name and address of the Employer representative to whom a written request for a hearing (and other related written communications) should be addressed.

(b)     The employee shall, within ten (10) days of his/her receipt of notice given pursuant to subsection (a) above, file a written request for a hearing with the Employer representative designated in accordance with subsection (a)(iv) above. Failure to file a written request for a hearing shall constitute a waiver of his/her right to a hearing; provided, however, that the Employer, upon petition and for good cause shown, may permit the filing of an untimely request for hearing.

II.     Conduct of the Hearing.

(a)     The hearing shall be convened at the call of the chairman; shall commence within thirty (30) days after the selection of the neutral chairman of the hearing committee; and shall be completed within sixty (60) days of the commencement of the hearing. The hearing committee shall render a written decision within thirty (30) days after the conclusion of the hearing. The time limits established in this subsection may be extended by the Employer for good cause shown.

(b)     Not less than ten (10) days prior to the hearing date, the Employer shall provide to the employee:

(i)     A list of all witnesses, known to the Employer at that time, to be called by the Employer to testify at the hearing;

(ii)     Copies of all written and/or recorded statements by such witnesses in the possession of the Employer; and

(iii)     A list of all documents and other items to be offered as evidence at the hearing.

(c)     Not less than five (5) days prior to the hearing date, the employee shall provide to the Employer a list of all witnesses, known to the employee at that time, to be called by the employee to testify at the hearing.

(d)     Failure by either party to comply with the provisions of subsections (b) and (c) of this section may, at the discretion of the hearing committee chairman, result in the exclusion from the record of the hearing of testimony and/or evidence not timely disclosed in accordance with those subsections.

III.     Evidence at the Hearing.

(a)     Evidence which possesses probative value commonly accepted by reasonable and prudent men in the conduct of their affairs shall be admissible and shall be given probative effect. The hearing committee conducting the hearing shall give effect to the rules of privilege recognized by law, and may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. All records and documents which any party desires to use shall be offered and made part of the record.

(b)     No statements, documents and/or other evidence and no copies of any statements, documents and/or other evidence shall be presented to the hearing committee prior to the hearing.

(c)     All proceedings before the hearing committee shall be recorded by stenographic record, the expense of which shall be borne by the Employer. A copy of the record shall be provided to the employee or his/her attorney or representative of record upon request to the Employer.

(d)     Every party has the right of cross-examination of the witnesses who testify, and may submit rebuttal evidence.

(e)     The hearing committee conducting the hearing may take notice of judicially cognizable facts and, in addition, may take notice of general, technical, or scientific facts within its specialized knowledge.

(f)     It shall be the burden of the Employer to prove, by a fair preponderance of the evidence, that the law enforcement officer is guilty of the offense(s) or violation(s) of which he or she is accused. [ v57 p392 ]

IV.     Decisions of the Hearing Committee.

(a)     The hearing committee shall be empowered to sustain, modify in whole or in part, or reverse the complaint, charges, or disciplinary action taken by the Employer against the employee.

(b)     Any decision, order, or action taken as a result of the hearing shall be in writing and shall be accompanied by findings of fact. The findings shall consist of a concise statement upon each issue in the case. Copies of the decision or order and accompanying findings and conclusions shall be delivered or mailed promptly to the employee or to his or her attorney or representative of record and to the Employer or to its attorney or representative of record.

(c)     The decision of the hearing committee shall be final and binding upon all parties to the hearing.

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Footnote # 1 for 57 FLRA No. 70

   Member Pope did not participate in this decision.

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Footnote # 2 for 57 FLRA No. 70

   The Authority's regulations governing negotiability appeals were 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 57 FLRA No. 70

   The Agency withdrew its statements of nonnegotiability with respect to Proposal 15 and section two of Proposal 5. Statement of Position (SOP) at 11, 19. The Union withdrew its petition for review concerning Proposal 5, sections 3 and 4. Union's Response (Response) at 23. Accordingly, those proposals will not be addressed. See e.g., NFFE, Local 1214, 40 FLRA 1181, 1181 n.1 (1991); AFGE, AFL-CIO, Local 997, 9 FLRA 39 (1982).

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Footnote # 4 for 57 FLRA No. 70

   In a number of proposals, the parties dispute the interpretation the proposal should receive. The Authority has found that in interpreting a disputed proposal, it will look first to the proposal's plain wording and the union's statement of intent. If the union's explanation of the proposal's meaning comports with the plain wording, that explanation is adopted for the purpose of construing what the proposal means and, based on that meaning, deciding whether the proposal is within the duty to bargain. Local 1900, 51 FLRA at 138-39. When a union's explanation is not supported by a reasonable construction, however, the explanation is deemed inconsistent with the plain wording, and the Authority does not adopt it for the purpose of determining whether the proposal is within the duty to bargain. See, e.g., Int'l Fed'n of Prof'l and Technical Engineers, Local 3, 51 FLRA 451, 459 (1995) (IFPTE, Local 3). The foregoing principles of interpretation will be applied in construing the disputed proposals in this case.

      Moreover, the meaning the Authority adopts for these proposals, unless modified by the parties, will apply in other disputes, such as arbitration proceedings, where the construction of a proposal is at issue. See Nat'l Educ. Ass'n, Overseas Educ. Ass'n, Laurel Bay Teachers Ass'n., 51 FLRA 733, 741-42 (1996).

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Footnote # 5 for 57 FLRA No. 70

   With respect to the Agency's assertion that this proposal is nonnegotiable based on res judicata, we understand this assertion is based on a claim that the present proposal is substantially similar to Proposal 4 in Providence, 32 FLRA at 953 (see also similar Agency claim with respect to Proposals 2 and 4(1)). However, even where the present disputed proposal is substantially similar to a previous disputed proposal, the Authority remains, nonetheless, obligated to review the negotiability of the present disputed proposal based on the record before us. This is a reasoned approach given that the union's interpretation of the proposal may have changed, the law with respect to its negotiability may now be different, or pertinent facts that may impact the negotiability of the proposal may have altered.

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Footnote # 6 for 57 FLRA No. 70

   Proposal 1(b) will be addressed later in this decision following discussion of related proposals, Proposals 13(a), 13(b) and 13(c).

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Footnote # 7 for 57 FLRA No. 70

   Under the Authority's Regulations in effect at the time this negotiability appeal was filed, the Authority would not resolve bargaining obligation disputes in negotiability proceedings. See NAGE, Local R3-76, 55 FLRA 509, 512 n.5 (1999) (Member Cabaniss dissenting as to other matters); NAGE, Local R1-109, 53 FLRA 403, 405 (1997). Since the Union's claim that the Agency has elected to negotiate concerning § 7106(b)(1) matters concerns a bargaining obligation dispute, we need not address it.

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Footnote # 8 for 57 FLRA No. 70

   The Union in effect suggests that the Agency's statements in this regard should be construed as withdrawing its allegation that Proposal 1(c) is non-negotiable. Response at 17. We do not view this as a reasonable construction of the Agency's argument, since when the Agency intended to withdraw an allegation of nonnegotiability, it did so very directly. See SOP at 19.

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Footnote # 9 for 57 FLRA No. 70

   By its express terms, however, nothing in E.O. 13203 was intended to abrogate collective bargaining agreements in effect on the date of the Order.

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Footnote # 10 for 57 FLRA No. 70

   Chairman Cabaniss notes that if the Union intends the term bidding procedure to have a different meaning that is not apparent from the record, the Authority would dismiss this matter. We have consistently held that, in establishing the meaning of a proposal, the parties bear the burden of creating a record on which a negotiability determination can be made. Patent Office Professional Association, 56 FLRA 69, 91 (2000), citing AFSCME, Local 2910, 53 FLRA 1334, 1342 (1998).

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Footnote # 11 for 57 FLRA No. 70

   The Authority has previously found this regulation to be Government-wide. AFGE, Local 1815, 53 FLRA 606, 619 (1997).

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Footnote # 12 for 57 FLRA No. 70

   As in the case of Proposal 2, both parties treat this language as a current, disputed proposal.

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Footnote # 13 for 57 FLRA No. 70

   The Authority has held that an agency may voluntarily agree to a proposal that directly implicates the working conditions of managers or supervisors because such a matter is a permissive subject of bargaining. AFGE, Local 3302, 52 FLRA 677, 682 (1996); See also, Rochester, 56 FLRA at 291.

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Footnote # 14 for 57 FLRA No. 70

   To the extent the Union is arguing that the Agency has a duty to bargain this matter based on the settlement of a grievance, we previously noted that we would not resolve bargaining obligation disputes in this proceeding. See note 7, supra.

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Footnote # 15 for 57 FLRA No. 70

   The Union raised this issue for the first time in its Response to the Agency's Statement of Position. Response at 24.

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Footnote # 16 for 57 FLRA No. 70

   We will address the Union's appropriate arrangement claim, even though, as the Agency notes, this assertion was not raised in the Union's petition. Consistent with the Authority's Regulations that were applicable when this appeal was filed, 5 C.F.R. § 2424.7, and the Authority's practice, a union is not precluded from raising an appropriate arrangement claim in its response. See, e.g., NTEU, 43 FLRA 1279, 1281 (1992); NFFE, Local 2050, 36 FLRA 618, 624 n.2. (1990) (Local 2050). We note, moreover, that the Agency made no request to supplement its position to address this Union contention. See Local 2050, 36 FLRA at 624 n.2.

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Footnote # 17 for 57 FLRA No. 70

   Employees have a statutory right to court leave pursuant to 5 U.S.C. § 6322.

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Footnote # 18 for 57 FLRA No. 70

   The Union specifically states that it withdraws its Petition with respect to section (a) to the extent that it calls for the payment of overtime to [bargaining unit employees] attending training sessions during their normal tour of duty. Response at 27. However, the Union's withdrawal does not change the wording of section (a); it merely revises the Union's explanation of the meaning of that section. Id. at 27-28.

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Footnote # 19 for 57 FLRA No. 70

   5 C.F.R. § 550.111, which implements title 5 overtime entitlements, applies to General Schedule employees who are exempt from the Fair Labor Standards Act (FLSA), see AFGE, Local 987, 37 FLRA 197, 207 (1990). Section 550.111 provides in relevant part as follows:

      (a) Except as provided in paragraphs (d), (f), and (g) of this section, overtime work means work in excess of 8 hours in a day or in excess of 40 hours in an administrative workweek[.]

      5 C.F.R. § 551.501 applies to FLSA non-exempt employees and requires the same minimum of 40 hours in a workweek or more than 8 hours in a day to qualify for overtime. As the record is not clear whether these employees are exempt or non-exempt (since the Agency cites a regulation applying to exempt employees, but GS-6 employees are generally non-exempt), analysis under both regulations is appropriate.

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Footnote # 20 for 57 FLRA No. 70

   These are Government-wide regulations. See NAGE, SEIU, AFL-CIO, 32 FLRA 206, 208 (1988).

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Footnote # 21 for 57 FLRA No. 70

   There is no evidence in the record, and the Union does not suggest, how it would be feasible for an employee normally scheduled to a different shift to actually work that shift if that employee is attending training in Little Rock at the scheduled time.

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Footnote # 22 for 57 FLRA No. 70

   There is no evidence in the record, and the Union does not claim, that this mandatory training can be provided on-site and/or during other hours.

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Footnote # 23 for 57 FLRA No. 70

   The Union notes that, in Weingarten, the Court determined that before a right to union representation attaches, an employee must first request that representation. Response at 14. The Union states that this proposal incorporates Weingarten. Id. As such, the proposal should be read in a manner consistent with Weingarten, that is, the employee must first choose to request such union representation.

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Footnote # 24 for 57 FLRA No. 70

   The Union also indicates that this right would be available to any employee who must submit written statements in lieu of the interrogation.

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Footnote # 25 for 57 FLRA No. 70

   The Union also argues that the proposal would allow a delay in questioning so that the employee could get legal representation. Response at 12-13. However, this interpretation does not comport with the plain wording of the proposal, which calls specifically for Union representation. Consequently, we do not adopt this interpretation of the proposal.

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Footnote # 26 for 57 FLRA No. 70

   Chairman Cabaniss notes that even if adopted, Proposal 13(b) would likely be ineffective, since the Agency could not control what evidence is admitted in a criminal trial. However, that fact goes to the merits of the proposal rather than to its negotiability.

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Footnote # 27 for 57 FLRA No. 70

   The Union's Exhibit A, which is part of this proposal, may be found in the Appendix to this decision.