Proposal # 1-1, requiring the agency to use both VERGA (Voluntary Early Retirement Authority) and VSIP (Voluntary Separation Incentive Program) to reduce the number of employees occupying positions the agency has decided to contract out, is a negotiable. Although it affects management's right to retain employees (which FLRA, for the first time defines as "the right to establish policies or practices that encourage or discourage employees from remaining employed by an agency"), FLRA (Member Armendariz dissenting) held that the proposal is a negotiable § 7106(b)(3) appropriate arrangement.

Proposal # 1-4, requiring the agency to provide VSIP opportunities to applicants based on seniority, where there are more VSIP applicants than the number of VSIP opportunities being offered, also is a negotiable appropriate arrangement. (Member Armendariz dissented, finding that proposals # 1-1 and # 1-4 excessively interfere with the right to retain employees.)

Proposals # 2-1 and # 2-3, requiring the agency to include, in its contract with NJVC, a provision requiring NJVC to have a written EEO policy covering NJVC employees which complies with Federal EEO requirements (# 2-1) and a provision prohibiting NJVC from requiring NJVC employees to waive or modify the rights as a prerequisite to being hired or as a condition of employment (# 2-3) are outside the duty to bargain because they don't concern conditions of employment of bargaining unit employees. Nor do they "vitally affect" the conditions of employment of bargaining unit employees. FLRA said that "there is nothing in the proposals having a significant and material effect on the working conditions of unit employees while they are unit employees."

Proposal # 4-1, requiring the agency to include in its contract with NJVC a provision providing--in non-RIF situations--that unit employees will have the right of first-refusal for the NJVC positions set forth in the proposal is negotiable. In rejecting the agency's claim that the proposal is inconsistent with OMB Circular A-76, the Authority (Member Armendariz dissenting) said the following:

Proposal # 5-2a, prohibiting NJVC employees from serving on specified committees (e.g., pay for performance committees, promotion panels, awards) if the committee considers matters concerning any unit employee occupying a position targeted for contracting out, is nonnegotiable because it affects the right to assign work. (FLRA cited 49 FLRA 225, 248-49 (proposal precluding assignment of particular duties to certain contract and Federal employees affects the right to assign work).) FLRA rejected the union's claim that the proposal is a § 7106(b)(2) procedure or a § 7106(b)(3) appropriate arrangement. It wasn't a "procedure" because it affected the right to assign work, and FLRA rejected the "appropriate arrangement" claim by noting that the union "does not offer any explanation or evidence that demonstrates that its asserted adverse effects are reasonably foreseeable."

Proposal # 6-2a, prohibiting the agency from taking disciplinary action against a bargaining unit employee based on an allegation made by a contract employee unless that allegation is in writing affects the right to discipline, is not a (b)(2) procedure nor a (b)(3) appropriate arrangement. It excessively interferes with the right to discipline: even if the proposal provides significant benefits, it doesn't outweigh the severe limitation it places on management's right to discipline.

Proposal # 7-3, requiring that where overtime is assigned involving work that has been performed by a bargaining unit employee it has to be assigned to unit employee volunteers, not to contract employees, affects the right to assign work and isn't a (b)(2) procedure. "The Authority has held that proposals limiting an agency's discretion to decide whether to restrict overtime assignments to unit employees affect management's right to assign work[.]"