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