This negotiability case involves whether five provisions of an agreement, disapproved by the Agency head under § 7114(c) of the Federal Service Labor‑Management Relations Statute (the Statute),^[1] are contrary to law. 

 

Provision 1 restricts the Agency’s use of security cameras. The second numbered sentence of Provision 1 (Sentence 2)prohibits “routine surveillance of employees at duty stations.”^[2] For the reasons set forth below,we find that Sentence 2 conflicts with the Agency’s internal-security practice of using security cameras “to detect, document[,] and prevent” criminal activity,^[3] and that it is not a procedure or appropriate arrangement under § 7106(b) of the Statute. Therefore,we find that Provision 1 as a whole – and Sentence 2, as severedfrom the rest of Provision 1 – are contrary to law.

 

The third numbered sentence of Provision 1 (Sentence 3) prohibits the Agency from using       security-camera footage for “performance monitoring.”^[4] And Provision 1’s concluding, unnumbered sentence (Sentence 4) clarifies that the Agency may nevertheless use security-camera footage to “conduct administrative or criminal investigations,” to “support . . . disciplinary action[s],” “in matters referred to the Office of the Inspector General[,] . . . [or] for criminal prosecution.”^[5] Considering these sentences together (Sentences 3-4), for the reasons set forth below, we find that the Agency has not established that Sentences 3-4 – as severed from the rest of Provision 1 – affect management’s right to determine internal‑security practices.   

 

Provisions 4 and 5 concern workplace safety. Because the Union does not dispute the Agency’s claim that these provisions are contrary to management’s right to assign work under § 7106(a)(2)(B) of the Statute,^[6] and does not support its claim that the provisions are lawful because they concern permissive subjects of bargaining under § 7106(b)(1) of the Statute,^[7] we find that Provisions 4 and 5 are contrary to law.

 

Provision 6 concerns granting employees leave to engage in certain activities. We must determine whether the provision is contrary to management’s right to assign work under § 7106(a)(2)(B) of the Statute.^[8] Because the Agency’s management‑rights argument is based on a misinterpretation of the meaning and operation of Provision 6, we find that the Agency has not established that Provision 6 conflicts with § 7106(a)(2)(B).

 

Finally, Provision 3 prohibits the Agency from terminating automatic dues deductions for employees who leave one bargaining unit and join a different bargaining unit. Under § 7115(b)(1) of the Statute,^[9] an agency must stop automatically deducting union dues from the pay of any employee who leaves a bargaining unit. Accordingly, we find that Provision 3 conflicts with § 7115(b)(1).

After the parties executed an agreement, the Agency head disapproved several provisions under § 7114(c) of the Statute.^[10] Subsequently, the Union filed a negotiability appeal (petition) under § 7105(a)(2)(E) of the Statute,^[11] concerning six provisions, five of which are still in dispute (Provisions 1, 3, 4, 5, and 6). The Authority conducted a post‑petition conference (the conference); the Agency filed a statement of position (statement); the Union filed a response (response); and the Agency filed a reply to the Union’s response (reply). 

 

 

 

 

 

 

 

 

 

 

The Agency does not argue that either the first numbered sentence of Provision 1 (Sentence 1), or Sentence 4, is contrary to law; rather, the Agency argues only that Sentences 2 and 3 are contrary to law.^[13] Sentence 2 prohibits the Agency from using security cameras “for routine surveillance of employees at duty stations or break areas.”^[14] At the conference, the parties agreed that this sentence prevents management from using security cameras “to manage employees.”^[15] And the parties agree that Sentence 3 – which prohibits the use of security cameras for “performance monitoring”^[16] – prevents “management from using security footage to appraise employee performance.”^[17] 

 

 

The Agency argues that Provision 1 is contrary to the Agency’s right to determine internal-security practices under § 7106(a)(1) of the Statute.^[18] As a general matter, agencies have certain management rights under § 7106(a), but § 7106(b) provides exceptions to those rights.^[19] In order for an agency to demonstrate that a proposal or provision is contrary to § 7106, the agency must allege and demonstrate that the proposal or provision affects a management right.^[20] If the agency does so, then the Authority will next examine any union arguments that the proposal or provision falls within an exception set forth in § 7106(b).^[21]

 

 

Based on Sentences 2 and 3 of Provision 1,^[22] the Agency contends that Provision 1 affects management’s right to determine internal-security practices under § 7106(a)(1) of the Statute.^[23] The right to determine internal-security practices includes the authority to determine the policies and practices that are part of an agency’s plan to secure or safeguard its personnel, physical property, or operations against internal and external risks.^[24] The Authority has concluded that where an agency shows a link or reasonable connection between its security objective and a policy or practice designed to implement that objective, a provision that conflicts with the policy or practice affects management’s right to determine internal-security practices.^[25] And once a link has been established, the Authority will not review the merits of an agency’s policy or practice in the course of resolving a negotiability dispute.^[26]

 

The Agency at issue here, Independence National Historic Park, includes a number of historic tourist attractions, including the Liberty Bell, the Ben Franklin Museum, and Independence Hall.^[27] The Agency asserts that “[p]roviding a safe environment for employees and visitors and providing protection for the resources of the park are fundamental security objectives” of the Agency, and that security cameras “are a critical component” of the Agency’s internal-security program.^[28] According to the Agency, security cameras are “intended to detect, document[,] and prevent criminal activity,” and this requires that “cameras routinely monitor many locations where bargaining[-]unit employees . . . work.”^[29] For example, the security cameras monitor locations where bargaining-unit employees collect or count government funds, such as museum fees.^[30] And, according to the Agency, on at least one occasion, security cameras have recorded an employee stealing from a donation box.^[31] Consequently, the Agency claims, Sentence 2’s prohibition against “routine surveillance of employees at duty stations”^[32] conflicts with the Agency’s practice of monitoring employees’ duty stations.

 

The Union asserts that Provision 1 “has nothing to do with . . . internal security,”^[33] and that the Union does not “challenge[] the [A]gency’s use of [security] cameras for law[‑]enforcement purposes.”^[34] However, the Union does not explain how Sentence 2’s prohibition of using security cameras for “routine surveillance of employees at duty stations”^[35] permits the Agency to achieve its objective of using security cameras to “detect, document[,] and prevent criminal activity” throughout the park, including in areas where employees collect and count money.^[36] Relatedly, although Sentence 4 preserves management’s right to use security-camera footage to “conduct administrative or criminal investigations,” to “support . . . disciplinary action[s],” “in matters referred to the Office of the Inspector General[,] . . . [or] for criminal prosecution,”^[37] that sentence does not resolve the conflict between the Agency’s surveillance practice and Sentence 2’s prohibition on routine surveillance.

 

Based on the foregoing, we find that the Agency has established a reasonable link between its practice of using security cameras to routinely monitor employee duty stations and its internal-security objectives. And because, as discussed above, Sentence 2 of Provision 1 would prohibit the Agency from using cameras for “routine surveillance of employees at duty stations,”^[38] we find that Provision 1 conflicts with the Agency’s practice and, thus, affects management’s right to determine internal-security practices.  

 

The Union argues that Provision 1 is a procedure under § 7106(b)(2) of the Statute because, “[w]ithout the limitations embodied in the provision, the [A]gency will exceed its proper authority to determine                internal[-]security practices and impermissibly use the cameras” for purposes “other than internal security,” such as “employee[‑]performance monitoring.”^[39] In contrast, the Agency argues that because Provision 1 prohibits the Agency from using security cameras to monitor employees’ duty stations, the provision “prevents the Agency from . . . implementing an integral component of its internal-security program,” and, therefore, is not a procedure under § 7106(b)(2).^[40]

 

Under § 2424.25(c)(1)(ii) of the Authority’s Regulations, an exclusive representative must set forth its arguments and authorities supporting any assertion that its provision constitutes an exception to management rights, including “[w]hether and why the . . . provision constitutes a negotiable procedure as set forth in . . . [§] 7106(b)(2).”^[41] Where a union argued only that failure to implement an alleged procedure would have a “significant impact” on employees, the Authority held that this argument was insufficient to establish that the proposal was a procedure under § 7106(b)(2).^[42] Similarly, here, the Union claims that Provision 1 is a procedure, but presents no argument or authority to support that claim. Rather, the Union states only that, without implementation of Provision 1, the Agency will use security cameras in an “impermissibl[e]” manner.^[43] We find that the Union’s statement, standing alone, is insufficient to establish that Provision 1 is a procedure under § 7106(b)(2).^[44] We further note that, because Sentence 2 essentially prohibits the Agency from implementing its chosen internal-security practice, Provision 1 does not resemble security-related proposals or provisions that the Authority has held to be procedures under § 7106(b)(2).^[45] 

 

 

Where the response form that the Union filed asks whether the Union claims that Provision 1 is an appropriate arrangement under § 7106(b)(3) of the Statute, the Union responds, “Answered in [p]etition for [r]eview.”^[46] But the Union’s petition does not argue that Provision 1 is an appropriate arrangement. Additionally, in its response, the Union does not cite § 7106(b)(3) or use the terms “appropriate” or “arrangement.”^[47] But, in its response, the Union does provide several arguments – discussed in greater detail below – regarding how Provision 1 relates to the alleged adverse effects of the Agency’s potential use of security cameras to evaluate employee performance. We assume, without deciding, that these assertions are sufficient to raise an argument that Provision 1 is an appropriate arrangement. But, for the following reasons, we find that these assertions do not establish that Provision 1 is an appropriate arrangement.

 

Under § 2424.25(c)(1)(iii) of the Authority’s Regulations, an exclusive representative must set forth its arguments and authorities supporting any assertion that its provision constitutes an exception to management rights, including “[w]hether and why the . . . provision constitutes an appropriate arrangement as set forth in . . . [§] 7106(b)(3).”^[48] In order to be an appropriate arrangement, a provision must be both an “arrangement” and “appropriate” within the meaning of § 7106(b)(3).^[49] Thus, in determining whether a provision is an appropriate arrangement, the Authority first examines whether the provision is intended as an arrangement for employees adversely affected by the exercise of a management right.^[50] To establish that a provision is an arrangement, a union must identify the actual effects – or reasonably foreseeable effects – on employees that flow from the exercise of management’s rights and how those effects are adverse.^[51] Proposals or provisions that address speculative or hypothetical concerns do not constitute arrangements.^[52] And the alleged arrangement must also be sufficiently tailored to compensate or benefit employees suffering adverse effects attributable to the exercise of management’s rights.^[53] In this regard, the Authority has stated that § 7106(b)(3) does not bring within the duty to bargain proposals or provisions that are so broad in their sweep that the “balm” afforded would be applied to employees indiscriminately without regard to whether the group as a whole is likely to suffer adverse effects as a consequence of a management action under § 7106.^[54]

 

Here, the Union states that management’s exercise of its right to determine internal-security practices affects “all employees for whom            [security-camera] footage would be used to evaluate their performance.”^[55] According to the Union, using security‑camera footage to evaluate employees’ performance has the “adverse effect[s]” of interfering with communication between employees and managers, and depriving evaluating officials of the “necessary context . . . to accurately evaluate employee performance in a thorough and objective manner.”^[56] In addition, the Union claims that “[n]egative evaluations that come from management’s use of . . . cameras . . . can lower employees[’] overall performance ratings[,] thus [affecting] pay and career advancement.”^[57] And the Union asserts that Provision 1 is “intended to limit the [A]gency from using security cameras to evaluate its employees[,] and would promote interaction between employees and supervisors.”^[58] 

 

In contrast, the Agency characterizes the Union’s concerns about negative evaluations resulting from management’s use of cameras as “purely speculative.”^[59] In this regard, the Agency asserts that “[t]rained dispatchers, not line managers, routinely monitor various employee work stations” and do so “primarily for employee and visitor safety and to detect criminal activity.”^[60]

 

In evaluating the Union’s claims about the adverse effects addressed by Provision 1, we note that the Union does not address the possibility that, in certain instances, security‑camera footage could show an employee’s good performance, or refute an allegation of poor performance. And considering that Sentence 3 prohibits the Agency from using security-camera footage in performance evaluations, the Union does not explain how Sentence 2, which bans even “routine surveillance of employee duty stations,”^[61] benefits employees suffering from an adverse effect flowing from management’s exercise of its rights. Rather, that sentence appears only to conflict with the Agency’s internal-security practice of using security cameras to “detect, document[,] and prevent criminal activity” throughout the park,^[62] a practice that would benefit employee safety.

 

In sum, from the record before us, it is not clear that the adverse effects the Union wishes to mitigate through Provision 1 are more than speculative.^[63] Moreover, even assuming that the Union’s claims about the potential adverse effects from management’s possible use of security cameras to appraise employee performance constitute adverse effects within the meaning of § 7106(b)(3), the Union does not address the Authority’s requirement that such arrangements be sufficiently tailored. Accordingly, we conclude that the Union has not established that Provision 1 is a sufficiently tailored arrangement under § 7106(b)(3) of the Statute.^[64] As such, there is no need to address whether the provision is “appropriate.”^[65] 

 

The Union asks that, “[i]n the event that the Authority finds that any part of Provision 1 is contrary to law,” the Authority sever and separately consider: Sentence 1; Sentence 2; and Sentences 3-4.^[66] 

 

Under § 2424.25(d) of the Authority’s Regulations, a union “must support its [severance] request with an explanation of how the severed portion(s) of the . . . provision may stand alone, and how such severed portion(s) would operate.”^[67] If the severance request meets the Authority’s regulatory requirements, then the Authority severs the provision and rules on whether each of its separate components are contrary to law.^[68] 

Here, the Agency does not oppose severance.^[69] And as the Union’s explanation of the meaning and operation of each of Provision 1’s sentences demonstrates that Sentence 1, Sentence 2, and Sentences 3-4, each may operate independently, we grant the Union’s severance request.^[70] 

The Agency does not allege that Sentence 1 is contrary to law,^[71] so there is no basis for finding that Sentence 1, standing alone, is contrary to law. Accordingly, we direct the Agency to rescind its disapproval, to the extent that the disapproval applies to Sentence 1. 

 

 

Sentence 3 prohibits the use of security cameras for “performance monitoring”^[72] by preventing “management from using security[-]camera footage to appraise employee performance.”^[73] Sentence 4 – which, as stated previously, the Agency does not allege is contrary to law^[74] – states that Provision 1 “in no way restricts” management’s right to use security-camera footage to “conduct administrative or criminal investigations,” to “support . . . disciplinary action[s],” “in matters referred to the Office of the Inspector General[,] . . . [or] for criminal prosecution.”^[75] 

 

Thus, Sentences 3-4 – unlike Sentence 2 – do not prohibit the Agency from implementing its      internal-security practice of using security cameras to “detect, document[,] and prevent criminal activity” throughout the park, including in areas where employees collect and count money.^[76] Rather, the parties agree that Sentence 3 bans the Agency’s use of security-camera footage in “apprais[ing] employee performance,” specifically.^[77] Further, Sentence 4 makes clear that the Agency remains free to use security‑camera footage to “conduct administrative or criminal investigations” of employees, “support . . . disciplinary action[s]” against employees, or “in matters referred to the Office of the Inspector General . . . [or] for criminal prosecution,” even where employees are involved.^[78] As such, the prohibition imposed by Sentences 3-4 is narrowly limited to employee performance appraisals, and preserves the Agency’s discretion to conduct surveillance and to use security-camera footage in disciplinary or criminal matters. Accordingly, we find that Sentences 3-4 do not affect management’s right to determine internal-security practices under § 7106(a)(1) of the Statute.

 

In its reply, for the first time, the Agency asserts that Provision 1 also conflicts with management’s rights to direct employees and assign work under § 7106(a)(2)(A) and (B), respectively, of the Statute.^[79] However, § 2424.24 of the Authority’s Regulations requires an agency to “supply all arguments and authorities in support of its position” that “a . . . provision is . . . contrary to law” in its statement of position.^[80] In this regard, § 2424.24 specifically provides that an agency’s statement must

 

Additionally, §  2424.32(c)(1) of the Authority’s Regulations cautions that an agency’s “[f]ailure to raise and support an argument will, where appropriate, be deemed a waiver of such argument.”^[82] In this regard, § 2424.26 of the Authority’s Regulations provides that the purpose of the reply is to respond to “any facts or arguments [raised] for the first time in the [union’s] response.”^[83] Therefore, under §§ 2424.24, 2424.26, and 2424.32 of the Authority’s Regulations, an agency may not raise new contrary-to-law arguments in its reply that it could have raised in its statement of position.^[84] 

 

As relevant here, the Agency’s arguments, in its reply, regarding Provision 1’s alleged conflict with the rights to direct employees and assign work, concern the provision’s limitation on the use of surveillance-camera footage to evaluate employees’ performance.^[85] The parties understood, as of the conference, that Sentence 3 would “prevent . . . management from using security footage to appraise employee performance.”^[86] Therefore, the Agency could have asserted, in its subsequently filed statement, that Provision 1 conflicts with the rights to direct employees and assign work. Because the Agency did not do so, consistent with the foregoing discussion, the Authority’s Regulations do not permit the Agency to raise these arguments for the first time in its reply.^[87] Accordingly, we do not consider the Agency’s arguments that Provision 1 conflicts with management’s rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute.     

 

 

 

 

 

 

 

 

 

The parties agree that Provision 4 is intended “to ensure that the Agency will take specific actions to address the safety of employees and visitors.”^[90] Only the fourth sentence of Provision 4 – “[o]nce evacuated, a building will not be reopened until the Safety Officer and/or Division of Resource and Visitor Protection determine that there is no longer a danger to visitors and employees” – is in dispute.”^[91] 

 

The parties agree that Provision 5 is intended “to ensure that Safety Officers execute their duties and follow the organization’s ‘safety policy.’”^[92] Only the first sentence of Provision 5 – stating that “[t]he park Safety Officer will review situations where information indicates that employees in a particular occupation are suffering from a pattern of accidents, disabling injuries and/or illnesses” – is in dispute.^[93]  

 

 

 

The Agency argues that Provisions 4 and 5 are contrary to law because they affect management’s right to assign work under § 7106(a)(2)(B) of the Statute.^[94] The Union does not dispute – in either its petition or its response – the Agency’s argument. Under § 2424.32(c)(2) of the Authority’s Regulations, a party’s “[f]ailure to respond to an argument or assertion raised by the other party will . . . be deemed a concession to such argument or assertion.”^[95] Consistent with this regulation, where, as here, a union does not respond to an agency’s claim that a provision affects the exercise of a management right, the Authority will find that the union concedes that the provision affects the claimed management right.^[96] Thus, we find that the Union concedes that Provisions 4 and 5 affect management’s right to assign work.

 

The Union argues that Provisions 4 and 5 concern permissive subjects of bargaining under § 7106(b)(1).^[97] If the Union is correct that the provisions concern § 7106(b)(1) matters, then the Agency head was not permitted to disapprove the provisions.^[98] 

 

The Union specifically contends that Provisions 4 and 5 concern permissive subjects of bargaining under § 7106(b)(1) because they “include numbers and types.”^[99] Under § 2424.25(c)(1) of the Authority’s Regulations, the Union must set forth its arguments and authorities supporting any assertion that a provision falls within an exception to management rights, including “[w]hether and why the . . . provision concerns a matter negotiable at the election of the agency under . . . [§] 7106(b)(1).”^[100]

 

Under § 7106(b)(1), as relevant here, an agency may elect to negotiate on the “numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty.”^[101] When determining whether a provision is within the scope of § 7106(b)(1), the Authority assesses whether the provision relates to all three elements: “(1) the numbers, types, and grades; (2) of employees or positions; (3) assigned to any organizational subdivision, work project, or tour of duty.”^[102] In this regard, the phrase “numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty” in § 7106(b)(1) applies to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency’s organization and the accomplishment of its work.^[103]  

 

Although the Union asserts generally that Provisions 4 and 5 concern “numbers” and “types,”^[104] it does not explain these assertions. Further, the Union fails to explain how the provisions relate to any organizational subdivision, work project, or tour of duty, even though the Union has the burden to do so under § 2424.25(c)(1)(i) of the Authority’s Regulations.^[105] Therefore, we find that the Union has not demonstrated that Provisions 4 and 5 concern permissive subjects of bargaining under § 7106(b)(1). The Union does not allege that Provisions 4 and 5 are procedures under § 7106(b)(2) or appropriate arrangements under § 7106(b)(3), and therefore we do not address those provisions of the Statute.^[106] Accordingly, because Provisions 4 and 5 affect management’s right to assign work under § 7106(a)(2)(B) of the Statute, and the Union has not established that the provisions fall within an exception to management’s rights under § 7106(b), Provisions 4 and 5 are contrary to management’s right to assign work under § 7106(a)(2)(B).    

 

Additionally, we note that the Union argues that the Agency elected to negotiate Provisions 4 and 5 because: (1) there are identical provisions in the parties’ previous collective‑bargaining agreement;^[107] and (2) the Agency effectively put forth Provisions 4 and 5 as its proposals at the bargaining table when Agency negotiators presented the parties’ previous agreement as the Agency’s counter-proposals.^[108] As to the Union’s first argument, it is well settled that the parties’ inclusion of an identical provision in a previous agreement does not render a provision negotiable.^[109] And, as to the second argument, the Union provides no basis for finding that the identity of the party who put forth a proposal at the bargaining table is relevant to negotiability. Therefore, the Union’s arguments provide no basis for finding that Provisions 4 and 5 are lawful.

 

 

 

 

Only the second sentence of Provision 6 is in dispute, and the parties dispute the meaning of that sentence.^[111] Where parties dispute the meaning of a provision, the Authority looks to the provision’s plain wording and any union statement of intent.^[112] If the union’s explanation is consistent with the provision’s plain wording, then the Authority adopts that explanation for the purpose of assessing the provision’s legality.^[113] We note that the meaning that the Authority adopts in resolving a negotiability dispute applies in other proceedings – including arbitration – unless modified by the parties through subsequent agreement.^[114]

 

The second sentence of Provision 6 states, in pertinent part, that written requests for leave without pay (LWOP) in order to engage in certain activities “will be referred to the appropriate management official and will normally be approved.”^[115] The parties disagree over the extent to which the phrase “will normally be approved” limits the Agency’s ability to deny requests for LWOP. Specifically, the Agency claims that the provision requires the Agency to “normally” grant requests for LWOP without regard for the operational needs of the Agency.^[116] But the Union explains that the provision “does not require the [A]gency to grant requests for [LWOP] without regard to the necessity for the [requesting] employee’s services.”^[117]  Thus, the Union contends that Provision 6’s use of the word “normally” preserves the Agency’s discretion to disapprove LWOP requests based on the Agency’s need for the requesting employee’s services.^[118] And, relatedly, the Authority has previously adopted a union’s explanation that provisions that required an agency to hold a discussion with an employee “normally” within ten days from the agency’s decision to impose discipline preserved the agency’s discretion to wait longer than ten days or to decide not to hold the discussion at all.^[119]

 

 

The Agency argues that Provision 6 affects management’s right to assign work under § 7106(a)(2)(B) of the Statute by requiring that the Agency “normally” grant requests for LWOP “without regard to the necessity [of] the [requesting] employee’s services.”^[121] But we have found that Provision 6 would preserve the Agency’s discretion to disapprove LWOP requests based on the Agency’s need for the requesting employee’s services. Accordingly, the Agency’s argument is based on a misinterpretation of the meaning and operation of Provision 6, and the argument provides no basis for finding Provision 6 contrary to § 7106(a)(2)(B).^[122] Therefore, we order the Agency to rescind its disapproval of Provision 6.  

 

 

 

 

 

 

The Union explains that “NERO” means the Northeast Regional Office and “INDE” means the Independence National Historical Park – two separate bargaining units, both represented by the Union.^[124] The parties agree that the provision would require the Agency to continue deducting union dues, without interruption, for an employee who transfers out of one bargaining unit and into the other unit,^[125] in order to limit the amount of paperwork required by the employee.^[126] 

 

 

The Agency argues^[127] that Provision 3 is contrary to § 7115(b)(1) of the Statute.^[128] Section 7115(b)(1) provides that an agency must stop automatically deducting union dues for any employee when “the agreement between the agency and the exclusive representative involved ceases to be applicable to the employee.”^[129] In regard to dues withholding under § 7115, the Authority has found that an agreement ceases to be applicable to an employee when the employee transfers out of the bargaining unit.^[130]

 

According to the Agency, because NERO and INDE are separate bargaining units, § 7115(b)(1) does not permit management to continue deducting union dues from the pay of a transferred employee unless the employee executes a new standard‑form 1187, “Request for Payroll Deductions for Labor Organization Dues” (SF‑1187).^[131] The Union argues that Provision 3 does not conflict with § 7115(b)(1) because: NERO and INDE are serviced by the same payroll and human-resources offices and union officers; the units are geographically close to each other; and there is no break in relationship between the Agency and the employee when an employee transfers units.^[132] The Agency does not dispute these facts, but argues that § 7115(b)(1) requires that the employee who is transferred, reassigned, or otherwise relocated to a new bargaining unit has the right to choose whether he or she wishes to have union dues automatically deducted for the new bargaining unit, regardless of whether both units are under the same local and are serviced by the same human-resources department.^[133] 

 

The Agency’s interpretation of § 7115(b)(1) is consistent with Authority precedent finding that when an employee leaves a bargaining unit with the expectation that the departure is permanent, then the employee “is entitled to the widest possible discretion in resuming obligations [that] were purely discretionary.”^[134] In this regard, the Authority has found that an agency may not begin automatically deducting union dues once an employee is in a new bargaining unit unless the employee executes a new SF-1187 authorizing the deduction.^[135] In contrast, the Authority has found that when an employee leaves a bargaining unit with the expectation that the departure is only temporary (as in a detail), an agency must stop automatically deducting union dues while the employee is out of the bargaining unit, but may resume deducting union dues without the employee executing a new SF-1187 once the employee returns to the unit.^[136] Here, there is no claim, or basis for finding, that Provision 3 applies only to temporary transfers. 

 

Consistent with the foregoing, by prohibiting the Agency from observing a transferred employee’s discretion to resume or discontinue dues deductions, Provision 3 requires the Agency to violate the plain wording of § 7115(b)(1). And the Union provides no basis for finding that the factors that it cites – the units’ shared payroll, human-resources offices, and union officers; the units’ geographic proximity; and the unbroken relationship between the Agency and the transferred employee^[137] – are relevant here. In this regard, while those types of factors might be relevant in certain non‑negotiability contexts, such as when the Authority must determine whether two units should be consolidated,^[138] the Union cites no authority for the proposition that those factors have any relevance in a negotiability dispute, or to the application of § 7115(b)(1). Therefore, because NERO and INDE are distinct bargaining units, “the agreement between the [A]gency and the [Union] . . . ceases to be applicable to” an employee who leaves one unit, and the employee’s “allotment . . . for the deduction of dues . . . shall terminate.”^[139] At that point, § 7115(b)(1) requires the Agency to stop deducting Union dues for that employee, even if the employee then joins the other unit.^[140] Accordingly, we find that Provision 3 is contrary to § 7115(b)(1) of the Statute.

 

The Union also argues that Provision 3 concerns a matter negotiable at the election of the Agency under § 7106(b)(1) of the Statute,^[141] and is a procedure under § 7106(b)(2) of the Statute.^[142] However, a provision that is contrary to law remains so regardless of whether it pertains to a permissive subject of bargaining under § 7106(b)(1),^[143] or is a procedure under § 7106(b)(2).^[144] Therefore, the Union’s arguments provide no basis for finding that Provision 3 is consistent with law. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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