Federal Education Association, Stateside Region and U.S. Department of Defense, Education Activity, Pensacola, Florida, 0-NG-2603, April 11, 2003, 58 FLRA No. 113.

A proposal allowing the union to select unit employees to attend training sessions and to serve on committees, be they curriculum development committees or committees involving personnel policies, is outside the duty to bargain because it affects management's rights. Although that portion of the proposal dealing with curriculum development committees is a permissive subject of bargaining under § 7106(b)(1), given that the union did not make a request for severance of the proposal as permitted by 5 CFR 2424.2(h), FLRA had to conclude that the proposal is outside the duty to bargain in its entirety.

The disputed proposal provided, in relevant part, that when the agency establishes committees or training sessions to which bargaining unit employees would be assigned, the union would select half of the unit employees to serve on the committees or attend training sessions and management would select the other half.

The union did not dispute that the proposal affected management's rights, but claimed that the proposal concerns the means of performing work under § 7106(b)(1). It cited, in this connection, Proposal 18 in Overseas Education Association, Inc., 29 FLRA 734, 763 (1987).

The Authority noted that when a union doesn't dispute that its proposal affects management's rights under § 7106(a), but claims that it is nonetheless bargainable under § 7106(b)(1), the Authority first determines whether the proposal is bargainable under § 7106(b)(1). If it is, then it doesn't address § 7106(a) further because subsection (b)(1) is an exception to subsection (a).

But that isn't what happened here, even though FLRA agreed that "insofar as the proposal would permit the Union to select employees to serve on curriculum development committees, the proposal concerns the means of performing work under § 7106(b)(1). FLRA instead found that the proposal in its entirety was outside the duty to bargain.

In justifying its determination, it noted that the union's claim that the proposal concerns the means of performing work under § 7106(b)(1) was limited to committees concerned with curriculum development. "The Union makes no similar claim," said FLRA, "with respect to committees that involve other personnel policies, practices, and/or terms and conditions of employment, despite the fact that those committees are also encompassed by the proposal." Nor did the union claim that the portion of the proposal dealing with training sessions was a (b)(1) matter. And, finally, the union make no request for severance of the proposal, which meant that FLRA had to rule on the proposal in its entirety.

After noting that it has already held that proposals allowing the union to select employees to serve on panels affects management's right to assign work (see 48 FLRA 599, 605 (1993)), and that proposals allowing the union to participate in the discussions and deliberations leading to decisions involving the exercise of management's rights interferes with those rights (44 FLRA 1405, 1442, Proposal 10 (1992)), FLRA concluded that the proposal was outside the duty to bargain. In FLRA's words:

As portions of the proposal affect the exercise of management's rights, and in the absence of a request to sever the portion of the proposal that concerns the means of performing work under § 7106(b)(1) of the Statute, we conclude that the proposal is outside the duty to bargain in its entirety. See, AFGE, Local 1985, 55 FLRA 1145 (Proposals 1 and 3) (1999).