[ v59 p619 ]
59 FLRA No. 113
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3529
(Union)
and
UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE CONTRACT
AUDIT AGENCY
CENTRAL REGION
IRVING, TEXAS
(Agency)
0-NG-2694
_____
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
January 30, 2004
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
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 one proposal.
The proposal seeks to establish a child care subsidy program for employees of the Defense Contract Audit Agency Central Region (the Agency) that would be based on guidance issued by the Office of Personnel Management (OPM) for implementing such a program, instead of on laws and regulations governing such programs for the Department of Defense (DOD). [n1]
For the reasons that follow, we find that the proposal is not within the duty to bargain.
II. Meaning of the Proposal
At the post-petition conference, the Union explained that the proposal "would require the Agency to agree to the exclusive use of an OPM-based child care subsidy program provided in Title 5 of the United States Code." Record of Post-Petition Conference at 2 (emphasis added). [n2] In addition, the Union stated that the proposal, which contains several sub-parts, "[is] not severable." [n3] Id. The Agency did not disagree with the Union's explanation and had no questions as to the meaning of the proposal. Id. Thus, the parties agreed upon the Union's explanation of the meaning of the proposal as memorialized in the record of the post-petition conference distributed to the parties in accordance with 5 C.F.R. § 2424.23(c). [n4]
Also, the Union's explanation that the proposal would require the Agency to use an OPM-based child care subsidy program exclusively, instead of a DOD-based child care subsidy program, comports with the wording of the proposal. In this regard, the proposal expressly states that "[t]his program is based on the OPM `Guide for Implementing Child Care Legislation,'" under Pub. L. 107-67, Section 630, that "authoriz[ed] the use of appropriated funds to provide child care services for Federal civilian employees." In addition, the proposal does not require, or even mention, compliance with any DOD-related laws or regulations.
In its response, in rebutting the Agency's contentions that the proposal conflicts with law since it would preclude compliance with requirements under § 1798 of the Military Child Care Act (MCCA), 10 U.S.C. § 1791 et seq., the Union maintains that the Agency has not demonstrated that MCCA and the OPM law "are even incompatible, or that they cannot otherwise co-exist in [ v59 p620 ] whole or in part." Response at 4 n.1. To the extent that the Union is suggesting that the proposal would not preclude compliance with both OPM and DOD-related laws and regulations, such a construction of the proposal would be broader than the construction of the proposal stated in the record of the post-petition conference, which provides that the proposal will require the Agency to use an exclusively OPM-based child care subsidy program. Thus, since the proposal would require the Agency to comply exclusively with OPM-based requirements, the Agency would be precluded from complying with any additional and/or different requirements not provided for in OPM's implementing regulations.
The record of the post-petition conference advises parties that any objection to the content of the record of the post-petition conference may be raised in either the Agency's statement of position, or the Union's response thereto. Record of Post-Petition Conference at 3. Here, the Union raised no objection to the meaning of the proposal, as it was outlined in the record of the post-petition conference. Having failed to do so, the Union cannot now argue that the proposal will operate in a manner different than the manner described in the record of the post-petition conference. Permitting a party to change the agreed-upon meaning of the proposal would be inconsistent with a primary purpose of a post-petition conference, see 63 Fed. Reg. 66,405 (Dec. 2, 1998) (purpose of a post-petition conference is to ensure that parties have a common understanding of the meaning of a proposal), as well as the procedures for challenging the content of the record of a post-petition conference articulated in that record. Accordingly, we will consider the negotiability of the proposal in light of the meaning contained in the uncontested record of the post-petition conference. International Federation of Professional and Technical Engineers, Local 3, 57 FLRA 699 (2002).
As such, we interpret the proposal before us, consistent with the undisputed explanation of the meaning of the proposal by the Union at the post-petition conference, as requiring the Agency to agree to the exclusive use of an OPM-based child care subsidy program, instead of a program that also requires compliance with DOD-related laws and regulations. Thus, the Agency would be precluded from complying with any additional and/or different requirements not provided for in OPM's implementing regulations.
III. Positions of the Parties
A. Agency's Statement of Position
The Agency maintains that the proposal is nonnegotiable since it precludes the use of the DOD child care program, codified under § 1798 of the MCCA and applied through DOD regulations and standards for child care in DOD Instruction 6060.2 (Jan. 19, 1993). In this regard, the Agency maintains that "the Union's proposal would operate to nullify § 1798 and the entire DOD child care program and its standards and levels of quality child care within [the Agency] and perhaps throughout DOD." Statement of Position (SOP) at 4.
In particular, the Agency notes that under the proposal, "child care must be licensed and/or regulated by State and/or local authorities." Id. at 5. The Agency contends that state and/or local accreditation standards and qualifications would conflict with § 1798(a)(3), which permits financial assistance to eligible civilian child-care providers only if "the eligible provider is able to comply, and does comply, with the regulations, policies, and standards of the Department of Defense that are applicable to the furnishing of such services." Id. The Agency maintains that by enacting § 1798, "Congress expressly recognized existing DOD regulations applicable to the furnishing of child care services, and directed the Secretary to ensure compliance with such standards concerning civilian child care service providers." Id. The Agency maintains that as a result of § 1798, standards included in Instruction 6060.2 are applicable to the provision of child care services within the context of commercial or civilian service providers. Id. at 5-6.
The Agency contends that the legislative history of P.L. 107-67, § 630 (the OPM law) indicates that this law was intended to extend to non-DOD executive agencies the same flexibility that DOD already enjoyed under the MCCA. The Agency maintains that this legislative history also demonstrates that Congress did not intend to repeal, supplant, override or otherwise disturb existing statutory authority and DOD standards, policies or regulations applicable to the furnishing of child care services by civilian or non-governmental providers. The Agency notes that the OPM law does not "prohibit the formulation of any standard stricter than its own, as for example, in the matter of qualifying accreditation." Id. at 7. The Agency maintains that § 1798 constitutes the controlling statutory authority as it applies specifically to DOD's child care provisions and its existing regulations and standards. In this regard, the Agency contends that "there is no statutory authority to permit [the Agency] to [ v59 p621 ] negotiate different standards for child care services than those explicitly applicable under [§ 1798]." Id.
In addition, the Agency maintains that the proposal conflicts with 42 U.S.C. § 13041, which has been incorporated into DOD standards and requires criminal background checks on individuals involved in child care. The Agency contends that the requirement under the proposal that the child care centers or facilities be licensed by State and/or local authorities will result in "widely divergent criminal background check requirements." Id. at 8. Lastly, the Agency maintains that the proposal directly and excessively interferes with management's reserved rights under § 7106(a) of the Statute and matters covered by the parties' collective bargaining agreement. Moreover, the Agency contends that the proposal is not a negotiable procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3) of the Statute.
B. Union's Response
The Union maintains that the Agency has not demonstrated that the proposal conflicts with § 1798, or any DOD regulations, policies, or standards, including DOD Instruction 6060.2 and DOD Instruction 1402.5. In this respect, the Union maintains that the proposal need not reference all laws and regulations that also govern the subject in order to be negotiable. The Union also claims that the Agency's argument that P.L. 107-67 is not applicable to DOD is without merit, since DOD is an executive agency within the meaning of the law and, unlike the General Accounting Office, was not specifically excluded from that law. In addition, the Union contends that the Agency has not demonstrated that § 1798 and the OPM law "are even incompatible, or that they cannot otherwise co-exist in whole or in part." Response at 4 n.1.
Similarly, the Union maintains that the Agency has not demonstrated that the proposal conflicts with 42 U.S.C. § 13041, which requires government agencies to perform background checks on employees in child care facilities operated by such agencies. The Union notes that the proposal does not mention or address background checks for employees of child care providers. The Union reiterates that a proposal is not required to identify all laws that govern the subject matter of the proposal. Lastly, the Union maintains that the Agency's bare assertion that the proposal violates management's rights under § 7106(a) is "frivolous and should be disregarded." Id. at 5.
IV. Analysis and Conclusions
As noted above, we interpret the proposal before us, consistent with the undisputed explanation of the meaning of the proposal by the Union at the post-petition conference, as requiring the Agency to agree to the exclusive use of an OPM-based child care subsidy program, instead of a program that also requires compliance with any DOD-related laws and regulations. [n5] As such, we view the proposal as requiring the Agency to comply exclusively or solely with the express requirements under the OPM law and implementing regulations. [n6]
In examining the relationship between § 1798 and the OPM child care provisions enacted under § 630 of Pub. L. 107-67, 40 U.S.C. § 590(g), it appears that the Agency, as a DOD entity, cannot lawfully establish a child care subsidy program that complies solely with OPM-based requirements as the proposal in this case mandates.
The MCCA addresses all aspects of military child care, including funding for military child development centers, requisite training for child care employees, rates of pay for such employees, and fees for children attending military child development centers. As relevant here, § 1798 authorizes DOD to use appropriated funds to provide financial assistance to civilian providers of child care services that provide such services "for members of the armed forces and employees of the United States." [n7] Thus, § 1798 applies to child care services provided to military as well as federal civilian employees of the Agency.
On the other hand, the OPM child care provisions enacted under § 630 of Pub. L. 107-67 authorize any federal executive agency, with the exception of the General Accounting Office, to use appropriated funds to provide financial assistance or subsidies to child care providers "in a Federal or leased facility, or through contract, for civilian employees of the agency." [n8] Public [ v59 p622 ] Law 107-67 requires that any funds provided to child care providers under this law must be "applied to improve the affordability of child care for lower income Federal employees using or seeking to use the child care services."
Thus, § 1798 and the OPM law both authorize DOD to provide financial assistance or subsidies to civilian providers of child care for its federal civilian employees. Moreover, as explained below, DOD entities must comply with both laws.
In this respect, neither the language of the OPM law in Pub. L. 107-67 nor its underlying legislative history suggests that Congress intended that the OPM provisions would override any laws or regulations applicable to DOD in this arena. See Morton v. Mancari, 417 U.S. 535, 549-51 (1974) (Court found that repeals by implication generally are not favored). Cf. Colorado Nurses Assoc. v. FLRA, 851 F.2d 1486, 1488-89 (D.C. Cir. 1988) (statutory phrase "notwithstanding any law" indicates that VA chief "is to be unhampered by . . . federal [laws] that might otherwise constrain his authority" to determine employees' conditions of employment, including law providing for negotiated grievance procedure).
Rather, the legislative history of the bill that ultimately became Pub. L. 106-58, § 643 (predecessor to Pub. L. 107-67), indicates that the OPM law was intended to provide other non-DOD agencies with comparable latitude in providing financial assistance to child care providers that DOD agencies already possessed under the MCCA. See H.R. Rep. 106-69, 1999 WL 368905 at 2. As relevant here, the House Report states that
The [MCCA] of 1989 authorized DOD to use set amounts of appropriated funds to fund all aspects of child care centers for DOD military and civilian families. DOD agencies can subsidize child care centers and child care homes. The use of appropriated funds by other agencies to subsidize child care is severely restricted by law. These other agencies also need the same flexibility that private enterprises and DOD have to address the particular needs of their workforces. H.R. 206 therefore permits Federal agencies to use appropriated funds available for the payment of salaries to provide child care services for the civilian employees of the agency in a Federal or leased facility or through contract. These payments may be applied to any expenses incurred by the providers. Appropriated funds provided to facilities or contractors must be used to make child care more affordable for lower income employees. This legislation would remove all limitations on the use of appropriated funds related to the allowable costs of child care centers.
Id. Although this legislative history may support the proposition that the OPM law was not intended to apply to child care programs at DOD agencies under MCCA, as the Agency contends, we are reluctant to view the legislative history in this manner given the fact that DOD was not expressly excluded from coverage of the OPM law. In this respect, Congress expressly excluded the General Accounting Office from coverage of the OPM law, and therefore, had Congress intended to exclude DOD, it would have done so.
Also, we note that Congress enacted § 1798 on October 5, 1999, just days after enacting the provisions in Pub. L. 106-58, § 643 for the OPM child care subsidy program on September 29, 1999. The contemporaneous enactment of the OPM child care provisions in Pub. L. 106-58 and § 1798 strongly suggests that Congress intended that eligible civilian providers of child care services for DOD employees would also be governed by the specific, express eligibility requirements under § 1798. This interpretation comports with fundamental principles of statutory construction and interpretation that where there are two statutory provisions pertaining to the same subject matter, it is a rule of statutory construction that effect be given to both provisions, if possible. See New Jersey Air Nat'l Guard v. FLRA, 677 F.2d 276, 282 (3rd Cir. 1982), (citing Morton v. Mancari, 417 U.S. 535, 551 (1974)); Washington Post v. Washington-Baltimore Newspaper Guild, Local 35, 787 F.2d 604, 606-07 (D.C. Cir. 1986) (interpretation preferred which avoids conflict in statutory provisions). See Sutherland Statutory Construction § 51.02 (Sands 4th ed. 1984) ("Statutes for the same subject, although in apparent conflict, are construed to be in harmony if reasonably possible.").
Having determined that § 1798 and the OPM law both pertain to the same subject and that both must be given effect since DOD is not exempt from coverage of [ v59 p623 ] the OPM law, the next question to address is whether the Agency's compliance solely with the requirements under the OPM law as required by the proposal would be consistent with the operative effect of both statutes.
In terms of eligibility requirements under the OPM law, the only requirement in OPM's implementing regulations is that child care providers be "licensed and/or regulated by the State and/or local authorities where the child care service is delivered." 5 C.F.R. § 792.223 (2000). [n9]
However, § 1798(b) requires civilian providers to meet three eligibility requirements in order to receive any financial assistance under MCCA. First, the child care provider must be licensed to provide such services under State and local law. § 1798(b)(1). Second, the child care provider must have previous experience providing such child care services to members of the armed services or federal employees. § 1798(b)(2). Third, the child care provider must be "a family home day care provider" or provide "family child care services" under one of six enumerated types of circumstances. § 1798(b)(3). Moreover, under § 1798(a), financial assistance may be provided to "eligible civilian providers" only if the Secretary of Defense "ensures that the eligible provider is able to comply, and does comply, with the regulations, policies, and standards of the Department of Defense that are applicable to the furnishing of such services." § 1798(a)(3).
In short, both OPM's implementing regulations and § 1798 require that the child care provider must be licensed to provide such services under State and local law. However, OPM's implementing regulations do not require that child care providers satisfy the additional eligibility requirements under § 1798(b)(2) and (3), or exempt them from those requirements. The Agency, as a DOD entity, must comply with the additional requirements under § 1798(b)(2) and (3) for child care providers of DOD employees. Since the proposal requires the Agency to establish an exclusive OPM-based child care subsidy program that provides financial assistance to civilian child care providers, the proposal precludes the Agency from complying with the additional eligibility requirements under § 1798(b)(2) and (3). Thus, if the Agency implemented this proposal, it would violate applicable eligibility requirements under § 1798(b)(2) and (3). [n10]
In light of the foregoing, we find that the proposal conflicts with law and the requirements under § 1798. As explained above, given the meaning and interpretation of the proposal as establishing an exclusively OPM-based child care subsidy program, the proposal would preclude the Agency from complying with other eligibility requirements applicable to civilian child care providers for DOD entities under § 1798. As such, we find that the proposal conflicts with law, and is not within the duty to bargain. [n11] See Professional Airways Systems Specialists, District No. 6, PASS/NMEBA, 54 FLRA 1130, 1131 (1998) (if any portion of a proposal is outside the duty to bargain, the entire proposal falls outside the duty to bargain).
V. Order
The Union's petition for review is dismissed.
APPENDIX
I. The Proposal
a. The parties recognize that child care at or near the work site is a substantial benefit and convenience for employees. Pub. L. 107-67, Section 630, dated November 12, 2001, included permanent legislation authorizing the use of appropriated funds to provide child care services for Federal civilian employees. This law also provides that amounts paid to licensed or regulated child care providers may be in advance of services rendered. This program is based on the Office of Personnel Management (OPM) "Guide for Implementing Child Care Legislation." The effective date for this program is July 1, 2002 and is a permanent program.
b. The cost for use of the facilities will be borne by the user (employee) and supplemented as described below. DCAA employees may use child care facilities on local military [ v59 p624 ] installations (within the commuting area) in accordance with established procedures of each provider. DCAA Employees may also use any other approved provider they choose.
c. As part of the application process, DCAA employees will submit OPM Form 1644 entitled "Child Care Provider Information For Child Care Tuition Assistance Program For Federal Employees Department" prior to approval for the program. The Employer will send the employee a letter of notification about the decision on the application within 10 business days of the receipt of the application.
d. Only permanent DCAA employees will be eligible for this program. The Employer Model for determining Tuition Assistance Eligibility is as follows:
Total Family Employees Paid
Income
Weekly Amount
Per Child
$0-23,000 $50
$23,001-34,000 $62
$34,001-44,000 $73
$44,001-55,000 $83
$55,001-69,999 $96
$70,000+ $112
The maximum weekly Agency contribution is the highest fee charged by GSA child care facilities in each commuting area less applicable employee contributions.
- No individual employee is paid money for purposes of childcare. The money is provided directly to the eligible child care provider.
- Participating employees must provide objective evidence that a non-Government child care provider meets all eligibility requirements prior to eligibility.
e. This tuition assistance program applies to employees whose children are between the ages of birth through age 13, or disabled and under age 18, and are enrolled, or will be enrolled, in family child care homes or center- based child care. The childcare must be licensed and/or regulated by State and/or local authorities.
f. Employees applying for this program must submit OPM Form 1643 entitled "Child Care Tuition Assistance Application Form". However, the employee will only have to submit a copy of page one, the Total Income line (ex. Form 1040, Line 22) and signature of the most recent Federal Income tax return. All other lines may be blocked out. Employees do not have to submit state tax forms.
g. When the employee is approved for the program, the Employer and Employee will immediately sign an agreement similar to the sample Tuition Assistance Agreement shown in Appendix E of the March 2000 OPM Guide for Implementing Child Care Legislation.
h. The Agency neither assumes nor accepts any liability for accidents/injuries/illnesses resulting from the employee's election to participate. Employees who choose to participate acknowledge and accept the Agency's full protection against any liabilities and therefore waive any and all rights to bring a claim against the Agency.
II. Relevant Statutory Provisions
A. 10 U.S.C. § 1798, "Child care services and youth program services for dependents: financial assistance for providers," states in pertinent part:
(a) Authority. - The Secretary of Defense may provide financial assistance to an eligible civilian provider of child care services or youth program services that furnishes such services for members of the armed forces and employees of the United States if the Secretary determines that providing such financial assistance --
(1) is in the best interest of the Department of Defense;
(2) enables supplementation or expansion of furnishing of child care services or youth program services for military installations, while not supplanting or replacing such services; and
(3) ensures that the eligible provider is able to comply, and does comply, with the regulations, policies, and standards of the Department of [ v59 p625 ] Defense that are applicable to the furnishing of such services.
(b) Eligible providers. -- A provider of child care services or youth program services is eligible for financial assistance under this section if the provider --
(1) is licensed to provide those services under applicable State and local law;
(2) has previously provided such services for members of the armed forces or employees of the United States; and
(3) either --
(A) is a family home day care provider; or
(B) is a provider of family child care services that --
(i) otherwise provides federally funded or sponsored child development services;
(ii) provides the services in a child development center owned and operated by a private, not-for-profit organization;
(iii) provides before-school or after-school child care program in a public school facility;
(iv) conducts an otherwise federally funded or federally sponsored school age child care or youth services program;
(v) conducts a school age child care or youth services program that is owned and operated by a not-for- profit organization; or
(vi) is a provider of another category of child care services or youth services determined by the Secretary of Defense as appropriate for meeting the needs of members of the armed forces or employees of the Department of Defense.
(c) Funding. - To provide financial assistance under this subsection, the Secretary of Defense may use any funds appropriated to the Department of Defense for operation and maintenance.
B. P.L. 107-67, Section 630 (the OPM law) provides:
(a) IN GENERAL. - Hereafter, in accordance with regulations promulgated by the Office of Personnel Management, an Executive agency which provides or proposes to provide child care services for Federal employees may use appropriated funds (otherwise available to such agency for salaries and expenses) to provide child care, in a Federal or leased facility, or through contract, for civilian employees of such agency.
(b) AFFORDABILITY. - Amounts so provided with respect to any such facility or contractor shall be applied to improve the affordability of child care for lower income Federal employees using or seeking to use the child care services offered by such facility or contractor.
(c) ADVANCES. - Notwithstanding 31 U.S.C. 3324, amounts paid to licensed or regulated child care providers may be in advance of services rendered, covering agreed upon periods, as appropriate.
(d) DEFINITION. - For purposes of this section, the term Executive agency has the meaning given such term by section 105 of title 5, United States Code, but does not include the General Accounting Office.
(e) NOTIFICATION. - None of the funds made available in this or any other Act may be used to implement the provisions of this section absent advance notification to the Committees on Appropriations.
Footnote # 1 for 59 FLRA No. 113 - Authority's Decision
The text of the proposal is set forth in the Appendix to this decision.
Footnote # 2 for 59 FLRA No. 113 - Authority's Decision
We note that the Union's explanation of the proposal at the conference is consistent with the statement in its petition that the proposal "would require the [A]gency to agree to an OPM based Child Care subsidy program instead of a DOD based Child Care subsidy program." Petition at 2 (emphasis added).
Footnote # 3 for 59 FLRA No. 113 - Authority's Decision
Under the Authority's negotiability regulations, "[s]everance means the division of a proposal or provision into separate parts having independent meaning, for the purpose of determining whether any of the separate parts is within the duty to bargain." 5 C.F.R. § 2424.2(h). Since the Union has specifically stated that the proposal is not severable, severance is not appropriate in this case. See ACT, Wichita Air Capitol Chapter, 58 FLRA 310, 312 (2003) petition for review granted as to other matters ACT, Wichita Air Capitol Chapter v. FLRA, 353 F.3d 46 (D.C. Cir. 2004).
Footnote # 4 for 59 FLRA No. 113 - Authority's Decision
5 C.F.R. § 2424.23(c) provides:
At the post-petition conference, or after it has been completed, the representative of the FLRA will prepare and serve on the parties a written statement that includes whether the parties agree on the meaning of the disputed proposal or provision, the resolution of any disputed factual issues, and any other appropriate matters.
Footnote # 5 for 59 FLRA No. 113 - Authority's Decision
It is undisputed that proposals addressing day care facilities concern conditions of employment. See AFGE, Local 1501, 38-- 1515, 1519 (1991).
Footnote # 6 for 59 FLRA No. 113 - Authority's Decision
In this regard, we note that the Union does not dispute the Agency's assertions in its SOP that the parties currently have a child care subsidy agreement that is consistent with § 1798 and DOD regulations, and that the Union sought to renegotiate the matter in order to attain an OPM-based child care subsidy plan.
Footnote # 7 for 59 FLRA No. 113 - Authority's Decision
Section 1798 was added to the MCCA by Pub. L. 106-65, Div. A, Title V, § 584(a)(1)(B), (Oct. 5, 1999), 113 Stat. 634). The text of 10 U.S.C. § 1798 is set forth in the Appendix to this decision.
Footnote # 8 for 59 FLRA No. 113 - Authority's Decision
Congress enacted Pub. L. 106-58, § 643, on Sept. 29, 1999. This law initially authorized executive agencies to use appropriated funds to assist their lower income federal employees with the costs of child care. Subsequently, this authority for the child care subsidy program under Pub. L. 106-58, § 643 was made permanent by Pub. L. 107-67, § 630 on November 12, 2001, by the 2001 Treasury and General Government Appropriations Act, and is now codified under 40 U.S.C. § 590(g). The text of Pub. L. 107-67, Section 630, is set forth in the Appendix to this decision.
Footnote # 9 for 59 FLRA No. 113 - Authority's Decision
See also 68 Fed. Reg. 14127 (March 24, 2003), 5 C.F.R. Part 792 (Interim regulations that became effective March 24, 2003). In these interim regulations, OPM clarified that "employees are free to choose among both accredited and non-accredited providers in order to qualify." Id. at 14127. OPM further noted that it "wants to ensure that Federal employees have the widest possible choice in child care providers by making clear that all State and locally licensed or regulated child care providers, meaning those subject to the State and local standards of safety and care for children, qualify under the program." Id.
Footnote # 10 for 59 FLRA No. 113 - Authority's Decision
We note that, unlike the proposal in this case, a proposal providing that the Agency shall comply with all of the requirements under both § 1798 and the OPM law would be consistent with law.
Footnote # 11 for 59 FLRA No. 113 - Authority's Decision
In light of this finding, we find it unnecessary to address the Agency's other arguments.