54:0429(44)CA - - VA Medical Center, Lexington KY & NAGE - - 1998 FLRAdec CA - - v54 p429



[ v54 p429 ]
54:0429(44)CA
The decision of the Authority follows:


54 FLRA No. 44

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

LEXINGTON, KENTUCKY

(Respondent)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

(Charging Party)

CH-CA-50399

_____

DECISION AND ORDER

June 19, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.(1)

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel and the Charging Party. The Respondent filed an untimely opposition to the exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by declaring nonnegotiable all of the Union's proposals concerning the Respondent's plan to have unit employee lab technicians perform certain dental assistant duties, and by implementing its plan prior to completing negotiations with the Union. The Judge found that the Respondent's decision was a matter negotiable only at the Respondent's election under section 7106(b)(1) of the Statute. The Judge determined that the Respondent did not elect to bargain over its decision and, therefore, the Respondent did not violate section 7116(a)(1) and (5) of the Statute.

In U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 858 (1997), (Department of Commerce I), the Authority issued a Partial Decision and Procedural Order directing the parties in that case, those in four companion cases -- of which this case is one -- and those seeking to participate as amicus curiae to submit written responses to a series of questions concerning section 7106(b)(1) of the Statute and Executive Order 12871.

Upon consideration of the Judge's decision, the entire record, and the parties' response to the Authority's Procedural Order in Department of Commerce I, we conclude for the reasons explained below that the Respondent did not commit the unfair labor practice alleged in the complaint. Accordingly, we dismiss the complaint.

II. Background

This unfair labor practice case was decided by the Judge based on a stipulation of facts by the parties, who agreed that no material issue of fact exists, in accordance with section 2423.26(a) of the Authority's Regulations.(2) The facts are set forth in the Judge's decision and are briefly summarized here.

This dispute results from the Respondent's decision to direct unit employee lab technicians to perform certain dental assistant duties. The Respondent requested that the Union submit any proposals concerning the impact and implementation of its decision. See Joint Exhibit 3 ("If you wish to discuss any impact/implementation issues, please submit your proposals by COB July, 21, 1994."). The Union submitted proposals that the Respondent declared outside the duty to bargain. The Union filed two negotiability appeals with the Authority concerning the Respondent's declaration. The Authority concluded in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington I)and National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024 (1997) (VAMC, Lexington II) that the Union's proposals were negotiable at the election of the Respondent under section 7106(b)(1). Judge's Decision at 4. Subsequently, the Respondent refused to bargain over any of the Union's section 7106(b)(1) proposals.

The General Counsel issued a complaint alleging that the Respondent's implementation of its decision prior to the completion of bargaining violated section 7116(a)(1) and (5) of the Statute. As relevant here, the complaint provides that, through Executive Order 12871, the President "exercised the Respondent's discretion under section 7106(b)(1) to negotiate section 7106(b)(1) subjects, including the [Union's] proposals." Complaint 16.

The Judge noted the Authority's determination that the Union's proposals were negotiable at the Respondent's election under section 7106(b)(1) of the Statute. The Judge stated that the President "did not exercise the Respondent's discretion" to elect to bargain under section 7106(b)(1) through Section 2(d) of Executive Order 12871.(3) Judge's Decision at 6. Noting that "Section 3 of Executive Order 12871 specifically states that [it] 'is intended only to improve the internal management of the executive branch'" and that it does not create any right to administrative or judicial review, the Judge stated that "any dispute as to the Respondent's compliance with the . . . Executive Order is a matter for internal resolution within the Executive Branch[.]"(4) Id. at 6-7. The Judge concluded that "[s]ince all of the Union's proposals were negotiable only at the election of the agency, the Respondent's refusal to bargain over such proposals and its unilateral implementation of the changes did not violate the Statute." Id. at 7.

Based on the foregoing, the Judge recommended that the Authority dismiss the complaint.

III. Positions of the Parties

Subsequent to the Authority's Partial Decision and Procedural Order in Department of Commerce I, 53 FLRA 858, the parties in this case were given an opportunity to provide written responses to a series of questions concerning section 7106(b)(1) of the Statute and Executive Order 12871. The positions of the parties, described below, include their responses to the Authority's Procedural Order that are set forth more fully in U.S. Department of Commerce, Patent and Trademark Office, 54 FLRA No. 43, slip op. at 9-10 (1998) (Department of Commerce II).

A. General Counsel

The General Counsel argues that "by issuing . . . Executive Order [12871], the President . . . has exercised the Respondent's discretion under section 7106(b)(1)[.]" Exceptions at 3. According to the General Counsel, once the President exercised his discretion to bargain over 7106(b)(1) issues, the Respondent "was without authority to negate the President's election and [to] refuse to bargain over the proposals simply because they relate to section 7106(b)(1) matters." Id. at 5.

The General Counsel asserts that "the Judge erroneously concluded that the General Counsel was attempting to enforce the Executive Order." Id. Noting that Section 3 of the Executive Order states that the Executive Order is not enforceable judicially or administratively, the General Counsel contends that it is not seeking to enforce the Executive Order. Instead, the General Counsel states that the President's election to bargain as expressed in the Executive Order is enforceable under the Statute. According to the General Counsel, this case concerns "administering the provisions of the Statute implicated by such election, which is not precluded by [S]ection 3" of the Executive Order. Id. at 6.

B. Charging Party

Like the General Counsel, the Charging Party argues that the Executive Order constitutes the President's election to bargain over section 7106(b)(1) matters. The Charging Party claims that "it should be without question that an agency head and subordinate officials, are without authority to revoke the Head of the Executive Branch and Executive agencies election to bargain section 7106(b)(1) subjects. Charging Party's Brief in Response to the Authority's Procedural Order in Department of Commerce I at 8.

The Charging Party also argues that Section 3 of the Executive Order does not prohibit enforcement of the Executive Order. According to the Charging Party, "[t]he Respondent's refusal to bargain is in violation of 5 U.S.C. 7116(a)(1) and (5). The Authority would not be enforcing the Executive Order. The Authority would be enforcing the statutory requirement to bargain in good faith." Id. at 11.

C. Respondent (5)

The Respondent asserts that the Authority wrongly decided VAMC, Lexington I because the Authority erroneously relied upon Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150 (D.C. Cir. 1994) (ACT). According to the Respondent, ACT is distinguishable from VAMC, Lexington I because the parties in ACT, unlike the parties in VAMC, Lexington I, reached an agreement on 7106(b)(1) matters before the agency head disapproved the agreement on those matters. The Respondent argues that ACT's "holding that . . . section 7106(b)(1) . . . is an exception to section 7106(a) should be limited to elections resulting [from an] agreement." Respondent's Brief in Response to the Authority's Procedural Order in Department of Commerce I at 4.

The Respondent argues that Executive Order 12871 does not constitute the President's election to bargain over section 7106(b)(1) matters. The Respondent notes that the Order does not state that the President was electing to bargain and asserts that, if the President had explicitly elected to bargain, such an election would not be enforceable. According to the Respondent, "[s]ection 7106(b)(1) specifically vests agencies with the authority to make the section 7106(b)(1) election." Id. at 5. Thus, the Respondent contends that, if "Congress meant to vest the President with the authority to make the section 7106(b)(1) election, it would have specifically done so." Id.

The Respondent maintains that Section 3 of the Executive Order prevents the General Counsel from bringing an unfair labor practice charge against the Respondent for refusing to bargain over section 7106(b)(1) matters. In this regard, the Respondent claims that "[s]ection 3 clearly states that it creates no enforceable rights." Id. at 6.

IV. Analysis and Conclusions

Our decision is governed by Department of Commerce II. In Department of Commerce II, as relevant here, the Authority affirmed its holding in VAMC, Lexington that section 7106(b) of the Statute constitutes an exception to section 7106(a). In addition, the Authority determined that Section 2(d) of Executive Order 12871 does not constitute an election under the Statute to bargain over section 7106(b)(1) subjects. As the Authority explained, Section 2(d) of the Executive Order "unambiguously states [that it is] a direction by the President to agency officials to engage in bargaining over [the] subjects defined in the Statute." Department of Commerce II, 54 FLRA No. 43, slip op. at 28 (emphasis added). The Authority also explained that construing Section 2(d) as an internal management direction is compelled by the clear language of Section 3 of the Executive Order. Id. at 22-23. The fact that the nature of the Executive Order's direction is indeed mandatory does not, however, render it a statutory election enforceable in an unfair labor practice proceeding. Id. at 19.

In this case, the General Counsel and the Charging Party challenge the Judge's decision on the exact same grounds as those we considered in Department of Commerce II. Therefore, for the reasons set forth fully in our decision in Department of Commerce II, we find that the Respondent was not required to bargain with the Union over its decision to have unit employee lab technicians perform dental assistant duties.(6) Accordingly, we conclude that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by its refusal to negotiate, and we dismiss the complaint.

V. Decision

The complaint is dismissed.


Opinion of Member Wasserman, dissenting:

For the reasons set forth in my separate opinion in Department of Commerce II, I respectfully dissent. I believe that the evidence supports the conclusion that the President elected to bargain on behalf of his subordinate agencies through Section 2(d) of Executive Order 12871. The Charging Party has alleged bad faith bargaining due to a refusal to negotiate over the substance of the Agency's decision to assign dental assistant duties to lab technicians. These matters were found to be negotiable within the scope of 7106(b)(1). I would find that the failure to bargain after the election was made constitutes an unfair labor practice which is remediable through the Authority's unfair labor practice procedures.




FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER, LEXINGTON, KENTUCKY

Respondent

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

Charging Party

Case No. CH-CA-50399

Ginny M. Hamm

Counsel for the Respondent

George L. Reaves, Jr.

Representative of the Charging Party

Susan L. Kane

Philip T. Roberts

Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER

Administrative Law Judge

DECISION

I. Statement of the Case

This unfair labor practice case was submitted in accordance with section 2423.26(a) of the Authority's Regulations based on a waiver of a hearing and a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The Respondent and the General Counsel filed briefs.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(a)(1) and (5), by (1) declaring the Union's proposals concerning the Respondent's plan to have unit employee lab technicians perform certain dental assistant duties to be nonnegotiable, and (2) implementing its plan prior to the completion of bargaining, the Authority having found that the proposals were negotiable at the election of the Agency under 7106(b)(1) of the Statute(1) and the President of the United States having issued Executive Order 12871, "Labor-Management Partnerships," on October 1, 1993 (58 Fed. Reg. 52201-52203, October 6, 1993) (Executive Order 12871 or Executive Order) concerning the negotiation of section 7106(b)(1) subjects.(2)

For the reasons explained below, I conclude that the Respondent did not violate the Statute.

II. Findings of Fact

The parties stipulated as follows concerning the material facts and I so find:

1. The U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky (the Respondent or VAMC Lexington) is an agency under 5 U.S.C. § 7103(a)(3).

2. The National Association of Government Employees, (the Union) is a labor organization under 5 U.S.C. § 7103(a)(4).

3. National Association of Government Employees, Local R5-184 (Local R5-184) is an agent of the Union for the purpose of representing the bargaining unit employees at VAMC Lexington.

4. The charge was filed by the Union with the Chicago Regional Director on February 24, 1995. (Jt. Ex. 1(a)).

5. A copy of the charge was served on the Respondent.

6. A Complaint and Notice of Hearing was issued in this proceeding under 5 U.S.C. §§ 7101-7135 and 5 C.F.R. Chapter XIV by the Chicago Regional Director of the Federal Labor Relations Authority on March 31, 1997 (Jt. Ex. 1(b)).

7. The Respondent filed its Answer to the Complaint on April 21, 1997, admitting in part and denying in part the Complaint's allegations. (Jt. Ex. 1(d)).

8. During the time period covered by this complaint, these persons occupied the position opposite their names:

D.C. Schmonsky - Chief, Human Resources Manage ment Service, VAMC Lexington

James Blust - Assistant Chief, Human Resources Management Service, VAMC Lexington

9. During the time period covered by this complaint, the persons named in paragraph 8 were supervisors or management officials under 5 U.S.C. §§ 7103(a)(10) and (11).

10. During the time period covered by this complaint, the persons named in paragraph 8 were acting for the Respondent.

11. The Union is the exclusive representative of a unit of employees appropriate for collective bargaining at the Respondent.

12. Prior to July 1994, certain Dental Assistant duties were contained in the Position Description of Lab Technicians (Jt. Ex. 2, Attachment, page 3, paragraph IV. "Other"), however, the Lab Technicians did not routinely perform these duties. On or about July 11, 1994, the Respondent, by Schmonsky, gave notice to the Union (Jt. Ex. 3) of its intention to implement its plan to have unit employee Lab Technicians perform certain Dental Assistant duties on a regular rotational basis, as described in a memo dated June 30, 1994 (Jt. Ex. 2) and asked that the Union submit any proposals concerning the impact and implementation of this change by July 21, 1994. On or about July 20, 1994, the Union, by Local R5-184 President Jim Green submitted proposals concerning this change. (Jt. Ex. 4). On or about December 13, 1994, the Union requested a written allegation of non-negotiability as to the Union's proposals concerning the change. (Jt. Ex. 5).

13. On or about December 22, 1994, the Respondent declared all of the Union's proposals concerning the proposed change described in paragraph 12 and Joint Exhibit 2 to be nonnegotiable (Jt. Ex. 6).

14. On or about January 3, 1995, the Union filed a negotiability appeal with the Authority concerning the Union's proposals described in paragraph 13. (Jt. Ex. 7).

15. On or about January 9, 1995, the Respondent implemented its plan, described in paragraph 12 and Joint Exhibit 2, to have unit employee Lab Technicians perform certain Dental Assistant duties.

16. Dental Assistant duties as described in paragraph 12 and Joint Exhibit 2 and assigned to Lab Technicians had more than a de minimis impact on the working conditions of these bargaining unit employees.

17. The Authority, in National Association of Government Employees, Local R5-184, and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) and National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 52 FLRA No. 106 (1997), found that the Union's proposals described in paragraphs 12 and 13 were negotiable at the election of the Agency under section 7106(b)(1) of the Statute.

18. From on or about December 22, 1994, and continuing to the present, the Respondent has refused and continues to refuse to bargain over the Union's proposals concerning the proposed change described in paragraph 12, 15 and 16 and Joint Exhibit 2 because the Respondent contends that it has no duty to bargain over these proposals.

III. The General Counsel's Position

The General Counsel notes that where a union submits bargaining proposals and an agency refuses to bargain over the proposals based on the contention that they are nonnegotiable, the agency acts at its peril if it then implements the proposed change in conditions of employment. If the agency was obligated to bargain over any one of the proposals, the agency will have violated section 7116(a)(1) and (5) of the Statute by implementing the change without fulfilling its bargaining obligation. Accordingly, the General Counsel urges that, as the Authority has already determined in VAMC, Lexington I and VAMC, Lexington II that the proposals in dispute are negotiable at the Respondent's election under section 7106(b)(1) of the Statute, the Respondent violated the Statute.

The General Counsel asserts that by issuing Executive Order 12871, President Clinton exercised the Respondent's discretion and elected to bargain over section 7106(b)(1) subjects. Therefore, the Respondent could not lawfully refuse to bargain over such matters in this case which were found by the Authority to be negotiable at the election of the Respondent under section 7106(b) of the Statute, and it violated section 7116(a)(1) and (5) of the Statute by implementing the change without fulfilling its bargaining obligation. The General Counsel claims he is not enforcing Executive Order 12871, but simply enforcing the Union's statutory section 7106(b)(1) bargaining rights. The General Counsel urges, however, that any conclusion "that the President lacked this fundamental power to direct how Executive agencies will exercise their rights under the Statute and allow agencies such as the Respondent to escape liability by merely claiming that they have not elected to bargain over section 7106(b)(1) subjects, . . . would render meaningless not only section 2(d) of the Executive Order but also the President's stated goals for labor-management relations in the Federal sector."

IV. The Respondent's Position

The Respondent asserts that there is no statutory right to bargain over section 7106(b)(1) subjects, and the promulgation of Executive Order 12871, by its own terms, was designed to improve the internal management of the Executive branch and creates no rights enforceable administratively or judicially. Therefore, the Respondent urges that the complaint be dismissed for failure of the General Counsel to state a claim for which relief can be granted and for lack of subject matter jurisdiction in the Authority.

V. Discussion and Conclusions

Section 7106(b)(1) makes it clear that matters concerning "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty" are negotiable only at an agency's election. The Authority in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington I) and National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024 (1997) (VAMC, Lexington II) held that the Union's proposals involved here were negotiable at the election of the Agency under section 7106(b)(1) of the Statute.

The Authority did not order the Agency to bargain; rather the Authority dismissed the Union's petition for review under section 2424.10(b) of the Authority's Regulations(3) because it found that the proposals were negotiable at the Agency's election. See American Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484, 1490 (1997) (Prison Locals) (similar action based on VAMC Lexington I). The Authority specifically stated that it did not address the claim that Executive Order 12871 compelled the Agency to bargain, VAMC, Lexington I, 51 FLRA at 394 n.12, and it has said the same thing in other cases where it found that a proposal was negotiable at the election of the agency under section 7106(b)(1). Prison Locals, 52 FLRA at 1495 (citing cases).

The President of the United States did not exercise the Respondent's discretion as alleged by the General Counsel. Rather, Executive Order 12871 at Sec. 2.(d) provides that "the head of each agency . . . shall . . . (d) negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same[.]" Nevertheless, the Respondent has not exercised its statutory discretion to negotiate pursuant to section 7106(b)(1) in this case. The parties' stipulation reflects that the Respondent "[f]rom on or about December 22, 1994, and continuing to the present . . . has refused and continues to refuse to bargain over the Union's proposals . . . because the Respondent contends that it has no duty to bargain over these proposals."

As the Respondent points out, Section 3 of Executive Order 12871 specifically states that the order "is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any right . . . enforceable . . . against the United States, its agencies . . ., officers or employees. . . ." Therefore, any dispute as to the Respondent's compliance with the President's direction in the Executive Order is a matter for internal resolution within the Executive branch, is not an unfair labor practice under the Statute, and is not subject to administrative review here. However, the Authority noted in Prison Locals, 52 FLRA at 1490, that its assertion of jurisdiction over the union's negotiability appeal under section 7117(c) in that case did not violate section 3 of the Executive Order. Similarly, the assertion of jurisdiction and resolution of this complaint of unfair labor practices under section 7118 of the Statute does not violate section 3 of the Executive Order.

Since the section 7106(b)(1) proposals were negotiable at the Agency's election, the Respondent did not violate section 7116(a)(5) by "refus[ing] to consult or negotiate in good faith with a labor organization as required by this chapter" (emphasis added). It is well settled that a party is not required to bargain over a permissive subject of bargaining. Federal Deposit Insurance Corporation, Headquarters, 18 FLRA 768, 771 (1985) (citing cases). The Respondent was obligated to bargain over negotiable proposals only. Since all of the Union's proposals were negotiable only at the election of the agency, the Respondent's refusal to bargain over such proposals and its unilateral implementation of the changes did not violate the Statute. Department of Health and Human Services, Washington, D.C. and Department of Health and Human Services, Region X, Seattle, Washington, 19 FLRA 73, 74 (1985).

Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:

ORDER

The complaint is dismissed.

Issued, Washington, DC, August 26, 1997

_______________________

GARVIN LEE OLIVER

Administrative Law Judge




FOOTNOTES:
(If blank, the decision does not have footnotes.)


Authority's Footnotes Follow:

1. Member Wasserman's dissenting opinion is set forth at the end of this decision.

2. The Authority revised its unfair labor practice regulations effective October 1, 1997. See 62 Fed. Reg. 46175 (September 2, 1997); 62 Fed. Reg. 40911, 40922 (July 31, 1997). The exceptions here were filed prior to the effective date of these revisions. Therefore, the section of the regulations cited above refers to the regulations applicable prior to October 1, 1997.

3. Section 2(d) of Executive Order 12871 provides in pertinent part:

Sec. 2. Implementation Of Labor-Management Partnerships Throughout The Executive Branch. The head of each agency subject to the provisions of chapter 71 of title 5, United States Code shall:

(d) negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same[.]

4. Section 3 of Executive Order 12871 provides:

Sec. 3. No Administrative Or Judicial Review. This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any other right, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

5. The Charging Party's exceptions were served on the Respondent by certified mail on September 22, 1997. The General Counsel's exceptions were served on the Respondent by certified mail on September 23, 1997. Under 5 C.F.R. §§ 2423.28 and 2429.22, the Respondent had until the close of business on October 8, 1997 to file an opposition. The Respondent's opposition was filed on October 20, 1997. In addition, the Respondent failed to respond to the Authority's November 11, 1997 Order directing it to file a statement of service showing that a copy of its opposition had been served on all counsel of record or other designated representative(s) of parties pursuant to 5 C.F.R. §§ 2429.27(a) and 2429.27(c). Accordingly, we have not considered the Respondent's untimely opposition. See U.S. Army Armament Research Development and Engineering Center, Picatinny Arsenal, New Jersey, 52 FLRA 527, 530 (1996). Although the Respondent's opposition was untimely filed, its brief responding to the Authority's Procedural Order in Department of Commerce I was timely filed and has been considered.

6. Where the substance of the decision is not itself subject to negotiation, the agency is nonetheless obligated to bargain over the impact and implementation of that decision if the resulting changes have a more than a de minimis effect on conditions of employment. See Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-08 (1986). The complaint does not allege that the Respondent refused to bargain over the impact and implementation of its decision to have unit employee lab technicians perform dental assistant duties. The exceptions also do not address any issues concerning the impact and implementation of the Respondent's decision. As this issue is not before us, we do not address it.


ALJ's Footnotes Follow:

1. Section 7106(b)(1) of the Statute provides, in pertinent part:

(b) Nothing in this section 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[.]

2. Section 2.(d) of the Executive Order, provides in pertinent part as follows:

Sec. 2. IMPLEMENTATION OF LABOR-MANAGEMENT PARTNER-SHIPS THROUGHOUT THE EXECUTIVE BRANCH. The head of each agency subject to the provisions of chapter 71 of title 5, United States Code shall:

* * * * * * * *

(d) negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same; . . . .

3. Section 2424.10(b) of the Authority's Regulations provides:

If the Authority finds that the duty to bargain extends to the matter proposed to be bargained only at the election of t