United States of America

The Department of Veterans Affairs, Washington, D.C. (Employer) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the VA National Council, American Federation of Government Employees, AFL-CIO (Union).

After investigation of the request for assistance, the Panel determined that the dispute, which concerns the use of "last chance" and "abeyance" agreements in conjunction with the Employer's "Disciplinary and Adverse Actions" regulations, should be resolved through an informal conference with a Panel representative. The parties were advised that if no settlement were reached, the Panel's representative would notify the Panel of the status of the dispute, including the final offers of the parties, and would make recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

The parties met with Senior Legal Advisor Jesse Etelson on February 25, 1993, in Washington, D.C. During the informal conference, the parties were able to resolve six of the eight issues in dispute. Mr. Etelson has reported to the Panel based on the record developed by the parties, and it has considered the entire record in the case.

The Employer provides medical care and benefits to eligible veterans and their beneficiaries. It maintains over 200 facilities throughout the United States. The Union represents a consolidated bargaining unit of approximately 100,000 nonprofessional full-time, part-time, and temporary employees working at these facilities. In 1992, the Employer submitted to the Union a proposed revision of its agency-level regulations for disciplinary and adverse actions, "MP-5, Part I, Chapter 752," ("MP-5 Revision") to be used with Chapters 751 and 752 of the Federal Personnel Manual. The MP-5 Revision purports to incorporate changes consistent with the Civil Service Reform Act of 1978, decisions of the Merit Systems Protection Board, the United States Court of Appeals for the Federal Circuit, and implementing rules and regulations dealing with the conduct and performance of employees. It contains, according to a covering memorandum, "significant changes in policy and procedures pertaining to the manner in which management officials and supervisors handle disciplinary and adverse action matters."

An Appendix to the MP-5 Revision contains an explanation of the use of "last chance agreements" and "abeyance agreements" and samples of provisions used in such agreements in certain circumstances. These agreements, when used, are alternatives to the imposition of discipline or adverse action and are not strictly part of the disciplinary procedure, but are included in this appendix apparently because of their relevance to the "reasonable accommodation" required in certain cases where substance abuse is causing the conduct or performance problems. The included information concerning these agreements is based on guidance published by the Office of Personnel Management (OPM). "Last chance agreements" may be used when a removal or other action has been proposed, but no decision on that proposal has been made, or when an employee's removal has been effected and the action is being appealed. The agency and the employee reach an agreement, usually coupled with a waiver of appeal rights, giving the employee a last chance if he or she complies with conditions prescribed in the agreement. "Abeyance agreements" may be used in similar situations, or where a decision to remove has been issued but not implemented, and implementation is held in abeyance subject to cancellation of the removal under the prescribed conditions. The "abeyance agreement" may be effectuated unilaterally by an agency letter which does not require the employee's agreement. In such cases the "agreement" contains no waiver of appeal rights. The OPM guidance quoted in the appendix to the MP-5 Revision states that last chance and abeyance agreements should contain at least the following: (1) a time limit and conditions tailored to the situation; (2) a clear statement of all the agency's requirements of the employee; (3) a description of behaviors that will be considered evidence of compliance or failure to comply with the requirements; and, (4) an explanation of what the agency will do if the employee fails to comply and what the agency will do if the employee complies.

The OPM guidance also recommends the following procedure for taking action based on violation of an agreement: (1) the violation should not become part of the charges, but should be used only to show that the employee violated the agreement and thus triggered the agency's action; (2) the letter to the employee should clearly describe how the employee violated the provisions of the agreement (MSPB will require proof of violations); and (3) the agency should proceed on the basis of the original charges only.

The parties in this case have agreed on 26 modifications of the MP-5 Revision, including 1 provision relating to the issues still in dispute: "Execution of a 'Last Chance' [or] 'Abeyance' agreement does not in and of itself constitute admission of any wrongdoing." They bargained to impasse on a number of other issues concerning such agreements, including Union proposals for a number of restrictions on the use of such agreements to which the Employer's response was to quote part of the OPM guidance explaining that: (1) there is no set formula for abeyance or last chance agreements; (2) they are tailored to the individual situation; (3) they are fair, and provide some potential consideration or benefit to the employee (generally the agency's agreement to withhold an action which it could take); (4) they can be imposed unilaterally by the agency, or negotiated with the employee or his representative, (if they involve a waiver of rights, the employee must agree); and (5) they can be imposed at several stages of the adverse action process, i.e., after a proposal, after a decision, or even after the action has been effected.

Among the issues resolved at the informal conference were withdrawal of a Union proposal prohibiting the Employer from attempting to persuade employees to waive their rights to challenge disciplinary or adverse actions, coupled with an agreement that employees will be informed of their right to Union representation before signing a last chance or abeyance agreement. The parties also agreed to the following provision: "Last chance and abeyance agreements are intended to be used to afford the employee an opportunity to correct behavior that could result in adverse action. The parties agree to the concept of progressive discipline, designed primarily to correct and improve employee behavior, rather than to punish."

The parties disagree over: (1) the circumstances under which last chance agreements shall be implemented and (2) whether such agreements would be valid only if signed in the presence of the Union.

1. Limitations on the Use of Last Chance or Abeyance Agreements

a. The Union's Position

The Union proposes the following wording:

Implementation of 'Last Chance' [or] 'Abeyance' agreements/letters shall be for just cause and will not be arbitrary, capricious, an abuse of management discretion, based on disparate treatment, violate fundamental fairness or public policy.

Its proposal is modeled after a provision found negotiable by the Federal Labor Relations Authority (Authority).⁽¹⁾ The Authority found that such a restriction does not interfere with the agency's right to discipline employees but applies only after the agency has decided not to impose immediate discipline; moreover, even if it involves management's right to discipline employees, it is a negotiable procedure which the agency will observe when offering employees last chance agreements. The Union is concerned that employees may be coerced into signing such agreements when the nature of their alleged offenses would not ordinarily warrant discharge, but where the motivation may be a desire to terminate the employee for other reasons. Since last chance agreements typically contain waivers of the employee's procedural rights in connection with the alleged offense, the employee may unfairly be coerced into such an agreement by the threat of immediate discharge, and then be left with no opportunity to defend against the original charge. It is also the Union's perception that such agreements are written and administered in such a way that any future offense, no matter how trivial or unrelated to the original charge, is used to discharge the employees. Therefore, the Union's proposal would serve to restrict the use of such agreements to situations where a discharge would otherwise be appropriate.

b. The Employer's Position

The Employer essentially would have the Panel order the Union to withdraw its proposal. It believes there is no basis to suspect that these agreements are used for improper purposes. Rather, they are used to give employees who would otherwise be discharged or disciplined another chance. They are often used by management officials above the employee's immediate supervisor, when that supervisor would have instituted discipline immediately. The Union's proposal is a virtual laundry list of invitations to an arbitrator to overturn management's decision to use such an agreement. Adequate protection for employees against the improper use of last chance agreements is afforded by employees' informed consent to sign such agreements. It has been agreed that employees will be informed of their right to consult a Union representative before signing. Employees and their representatives will then have the opportunity to request desirable terms in the agreements and will have the option of rejecting agreements that do not meet their requirements. In those cases, the employees will be subject to the originally proposed disciplinary charge and will have the normal opportunity to defend themselves.

Upon careful examination of the parties' positions, considered in the context of the background facts including the provisions to which the parties have agreed, we conclude that the Union should withdraw its proposal, but that the safeguards recommended in the OPM guidelines included in the appendix to the MP-5 Revision be incoporated into the parties' agreement. The agreements in question are not new, and the Union has presented, at best, only anecdotal evidence of isolated cases of abuse, seasoned with much speculation of improper motives. On the other hand, the possibility of improper coercion to sign such agreements may be more than theoretical. Since the threat of immediate discharge is such a powerful weapon, even informed consent may not always protect an employee against an overreaching supervisor who would pressure the employee into waiving appeal rights to avoid sudden termination. The provisions of the OPM guidance that describe the proper implementation of such agreements, together with the parties' agreed provisions concerning: (1) the right to Union representation, (2) no admission of wrongdoing, and (3) the intent to correct behavior rather than to punish, offer a reasonable compromise between the heavy burden the Union's proposal would place on management, on the one hand, and allowing supervisors carte blanche to cause employees to waive their appeal rights, through intimidation, on the other.

2. Signing in the Presence of a Union Official

a. The Union's Position

The Union proposes that "'Last Chance' [or] 'Abeyance' agreements/letters will not be valid unless . . . signed in the presence of the Local President, or designee." This proposal also is modeled after one the Authority found negotiable in Wright-Patterson.⁽²⁾ The presence of its representative is necessary to monitor the Employer's use of these agreements. To be effective, the Union needs to know how often they are used, in what circumstances, and their terms. Since some employees may choose not to have the Union represent them in these matters, the Union needs a mechanism to ensure its knowledge in those instances.

b. The Employer's Position

Notwithstanding the Authority's declaration in Wright-Patterson that an essentially identical proposal was negotiable, that precedent is no longer viable in light of a later decision.⁽³⁾ Since last chance and abeyance agreements are used only when there has been a proposed disciplinary or adverse action, disclosure to the Union would accomplish the same result the Authority found to be too invasive of employees' privacy rights in Corps of Engineers. The Union's proposal is, therefore, nonnegotiable. Moreover, the administration of such a requirement would be difficult because the Local president may be unavailable and have failed to name a "designee."

(OPTION A)

We shall turn first to the Employer's preliminary argument that the Panel should decline to retain jurisdiction over the Union's proposal because it is nonnegotiable. In such circumstances, the Panel is guided by the FLRA's decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Carswell), where the FLRA determined that the Panel may apply existing case law to resolve an impasse where a duty-to-bargain issue arises. Applying the principles of Carswell to this case, we find that the FLRA's decision in Wright-Patterson, which was specifically affirmed by the U.S. Court of Appeals for the District of Columbia Circuit, provides sufficient basis for resolving the duty-to-bargain issue in favor of the negotiability of the Union's proposal. Moreover, the Panel is bound by FLRA precedent unless the FLRA reverses itself, or is reversed by the U.S. Supreme Court. Accordingly, we conclude the Employer's jurisdictional argument is without merit and that the Union's proposal is properly before the Panel.

On the merits, we believe that the Union's need to monitor the use of these agreements can best be met by affording it the opportunity to be present, with the understanding that its presence is for the purpose of observation only, unless, of course, the employee has requested that it represent him or her.

(OPTION B)

With respect to the arguments raised by the parties concerning the negotiability of the Union's proposal, we find it unnecesssary to address their validity because we are persuaded that the proposal intrudes on the privacy interests of employees who choose, after being informed of their right to Union representation (in accordance with the parties' agreement in this case), to proceed without the Union. We recognize, however, the Union's need to monitor the use of these agreements, and conclude that the impasse should be resolved through a compromise provision that should provide the Union with most of the information it needs while minimizing the intrusion on privacy interests. Under this compromise, the designated Union official at each of the Employer's facilities shall be provided, on a semi-annual basis, with a summary of the use of last chance and abeyance agreements at that facility, including the number and types of agreements and the nature of the proposed disciplinary charge that preceded the offering of such agreements. Names of the employees involved shall not be included. Acceptance of this information, of course, would not preclude the Union from requesting other information disclosable under § 7114 (b)(4) of the Statute.

(OPTION C)

With respect to the arguments raised by the parties concerning the negotiability of the Union's proposal, we find it unnecesssary to address their validity because, in our view, the legitimate interests of all parties can best be accommodated by giving the affected employee the option of disclosing to the Union that he or she has signed a last chance or abeyance agreement. Thus, we shall order that employees be given two copies of such agreements so that they may forward one to a Union representative if they so choose. At the same time, the Union is not precluded from requesting the release of such information under § 7114(b)(4) of the Statute. Such a compromise is consistent with Panel decisions in previous cases involving similar issues, and the record fails to persuade us that a different solution is warranted on the basis of the circumstances presented here.⁽⁴⁾

Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of the proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

1. Limitations on the Use of Last Chance or Abeyance Agreements

The parties' agreement shall incorporate, as binding provisions [or as guidance for administration of these agreements], the Office of Personnel Management guidance on last chance and abeyance agreements included in Appendix C to the revised MP-5, Part I, Chapter 752.

2. Signing in the Presence of a Union Official

(Provision described in Option A, B, C, or other.)

By direction of the Panel.

Linda A. Lafferty

Executive Director

May __, l993

Washington, D.C.

United States of America

The Department of Veterans Affairs, Washington, D.C. (Employer) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the VA National Council, American Federation of Government Employees, AFL-CIO (Union).

After investigation of the request for assistance, the Panel determined that the dispute, which concerns the use of "last chance" and "abeyance" agreements in conjunction with the Employer's "Disciplinary and Adverse Actions" regulations, should be resolved through an informal conference with a Panel representative. The parties were advised that if no settlement were reached, the Panel's representative would notify the Panel of the status of the dispute, including the final offers of the parties, and would make recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

The parties met with Senior Legal Advisor Jesse Etelson on February 25, 1993, in Washington, D.C. During the informal conference, the parties were able to resolve six of the eight issues in dispute. Mr. Etelson has reported to the Panel based on the record developed by the parties, and it has considered the entire record in the case.

The Employer provides medical care and benefits to eligible veterans and their beneficiaries. It maintains over 200 facilities throughout the United States. The Union represents a consolidated bargaining unit of approximately 100,000 nonprofessional full-time, part-time, and temporary employees working at these facilities. In 1992, the Employer submitted to the Union a proposed revision of its agency-level regulations for disciplinary and adverse actions, "MP-5, Part I, Chapter 752," ("MP-5 Revision") to be used with Chapters 751 and 752 of the Federal Personnel Manual. The MP-5 Revision purports to incorporate changes consistent with the Civil Service Reform Act of 1978, decisions of the Merit Systems Protection Board, the United States Court of Appeals for the Federal Circuit, and implementing rules and regulations dealing with the conduct and performance of employees. It contains, according to a covering memorandum, "significant changes in policy and procedures pertaining to the manner in which management officials and supervisors handle disciplinary and adverse action matters."

An Appendix to the MP-5 Revision contains an explanation of the use of "last chance agreements" and "abeyance agreements" and samples of provisions used in such agreements in certain circumstances. These agreements, when used, are alternatives to the imposition of discipline or adverse action and are not strictly part of the disciplinary procedure, but are included in this appendix apparently because of their relevance to the "reasonable accommodation" required in certain cases where substance abuse is causing the conduct or performance problems. The included information concerning these agreements is based on guidance published by the Office of Personnel Management (OPM). "Last chance agreements" may be used when a removal or other action has been proposed, but no decision on that proposal has been made, or when an employee's removal has been effected and the action is being appealed. The agency and the employee reach an agreement, usually coupled with a waiver of appeal rights, giving the employee a last chance if he or she complies with conditions prescribed in the agreement. "Abeyance agreements" may be used in similar situations, or where a decision to remove has been issued but not implemented, and implementation is held in abeyance subject to cancellation of the removal under the prescribed conditions. The "abeyance agreement" may be effectuated unilaterally by an agency letter which does not require the employee's agreement. In such cases the "agreement" contains no waiver of appeal rights. The OPM guidance quoted in the appendix to the MP-5 Revision states that last chance and abeyance agreements should contain at least the following: (1) a time limit and conditions tailored to the situation; (2) a clear statement of all the agency's requirements of the employee; (3) a description of behaviors that will be considered evidence of compliance or failure to comply with the requirements; and, (4) an explanation of what the agency will do if the employee fails to comply and what the agency will do if the employee complies.

The OPM guidance also recommends the following procedure for taking action based on violation of an agreement: (1) the violation should not become part of the charges, but should be used only to show that the employee violated the agreement and thus triggered the agency's action; (2) the letter to the employee should clearly describe how the employee violated the provisions of the agreement (MSPB will require proof of violations); and (3) the agency should proceed on the basis of the original charges only.

The parties in this case have agreed on 26 modifications of the MP-5 Revision, including 1 provision relating to the issues still in dispute: "Execution of a 'Last Chance' [or] 'Abeyance' agreement does not in and of itself constitute admission of any wrongdoing." They bargained to impasse on a number of other issues concerning such agreements, including Union proposals for a number of restrictions on the use of such agreements to which the Employer's response was to quote part of the OPM guidance explaining that: (1) there is no set formula for abeyance or last chance agreements; (2) they are tailored to the individual situation; (3) they are fair, and provide some potential consideration or benefit to the employee (generally the agency's agreement to withhold an action which it could take); (4) they can be imposed unilaterally by the agency, or negotiated with the employee or his representative, (if they involve a waiver of rights, the employee must agree); and (5) they can be imposed at several stages of the adverse action process, i.e., after a proposal, after a decision, or even after the action has been effected.

Among the issues resolved at the informal conference were withdrawal of a Union proposal prohibiting the Employer from attempting to persuade employees to waive their rights to challenge disciplinary or adverse actions, coupled with an agreement that employees will be informed of their right to Union representation before signing a last chance or abeyance agreement. The parties also agreed to the following provision: "Last chance and abeyance agreements are intended to be used to afford the employee an opportunity to correct behavior that could result in adverse action. The parties agree to the concept of progressive discipline, designed primarily to correct and improve employee behavior, rather than to punish."

The parties disagree over: (1) the circumstances under which last chance agreements shall be implemented and (2) whether such agreements would be valid only if signed in the presence of the Union.

1. Limitations on the Use of Last Chance or Abeyance Agreements

a. The Union's Position

The Union proposes the following wording:

Implementation of 'Last Chance' [or] 'Abeyance' agreements/letters shall be for just cause and will not be arbitrary, capricious, an abuse of management discretion, based on disparate treatment, violate fundamental fairness or public policy.

Its proposal is modeled after a provision found negotiable by the Federal Labor Relations Authority (Authority).⁽⁵⁾ The Authority found that such a restriction does not interfere with the agency's right to discipline employees but applies only after the agency has decided not to impose immediate discipline; moreover, even if it involves management's right to discipline employees, it is a negotiable procedure which the agency will observe when offering employees last chance agreements. The Union is concerned that employees may be coerced into signing such agreements when the nature of their alleged offenses would not ordinarily warrant discharge, but where the motivation may be a desire to terminate the employee for other reasons. Since last chance agreements typically contain waivers of the employee's procedural rights in connection with the alleged offense, the employee may unfairly be coerced into such an agreement by the threat of immediate discharge, and then be left with no opportunity to defend against the original charge. It is also the Union's perception that such agreements are written and administered in such a way that any future offense, no matter how trivial or unrelated to the original charge, is used to discharge the employees. Therefore, the Union's proposal would serve to restrict the use of such agreements to situations where a discharge would otherwise be appropriate.

b. The Employer's Position

The Employer essentially would have the Panel order the Union to withdraw its proposal. It believes there is no basis to suspect that these agreements are used for improper purposes. Rather, they are used to give employees who would otherwise be discharged or disciplined another chance. They are often used by management officials above the employee's immediate supervisor, when that supervisor would have instituted discipline immediately. The Union's proposal is a virtual laundry list of invitations to an arbitrator to overturn management's decision to use such an agreement. Adequate protection for employees against the improper use of last chance agreements is afforded by employees' informed consent to sign such agreements. It has been agreed that employees will be informed of their right to consult a Union representative before signing. Employees and their representatives will then have the opportunity to request desirable terms in the agreements and will have the option of rejecting agreements that do not meet their requirements. In those cases, the employees will be subject to the originally proposed disciplinary charge and will have the normal opportunity to defend themselves.

Upon careful examination of the parties' positions, considered in the context of the background facts including the provisions to which the parties have agreed, we conclude that the Union should withdraw its proposal, but that the safeguards recommended in the OPM guidelines included in the appendix to the MP-5 Revision be incoporated into the parties' agreement. The agreements in question are not new, and the Union has presented, at best, only anecdotal evidence of isolated cases of abuse, seasoned with much speculation of improper motives. On the other hand, the possibility of improper coercion to sign such agreements may be more than theoretical. Since the threat of immediate discharge is such a powerful weapon, even informed consent may not always protect an employee against an overreaching supervisor who would pressure the employee into waiving appeal rights to avoid sudden termination. The provisions of the OPM guidance that describe the proper implementation of such agreements, together with the parties' agreed provisions concerning: (1) the right to Union representation, (2) no admission of wrongdoing, and (3) the intent to correct behavior rather than to punish, offer a reasonable compromise between the heavy burden the Union's proposal would place on management, on the one hand, and allowing supervisors carte blanche to cause employees to waive their appeal rights, through intimidation, on the other.

2. Signing in the Presence of a Union Official

a. The Union's Position

The Union proposes that "'Last Chance' [or] 'Abeyance' agreements/letters will not be valid unless . . . signed in the presence of the Local President, or designee." This proposal also is modeled after one the Authority found negotiable in Wright-Patterson.⁽⁶⁾ The presence of its representative is necessary to monitor the Employer's use of these agreements. To be effective, the Union needs to know how often they are used, in what circumstances, and their terms. Since some employees may choose not to have the Union represent them in these matters, the Union needs a mechanism to ensure its knowledge in those instances.

b. The Employer's Position

Notwithstanding the Authority's declaration in Wright-Patterson that an essentially identical proposal was negotiable, that precedent is no longer viable in light of a later decision.⁽⁷⁾ Since last chance and abeyance agreements are used only when there has been a proposed disciplinary or adverse action, disclosure to the Union would accomplish the same result the Authority found to be too invasive of employees' privacy rights in Corps of Engineers. The Union's proposal is, therefore, nonnegotiable. Moreover, the administration of such a requirement would be difficult because the Local president may be unavailable and have failed to name a "designee."

(OPTION A)

We shall turn first to the Employer's preliminary argument that the Panel should decline to retain jurisdiction over the Union's proposal because it is nonnegotiable. In such circumstances, the Panel is guided by the FLRA's decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Carswell), where the FLRA determined that the Panel may apply existing case law to resolve an impasse where a duty-to-bargain issue arises. Applying the principles of Carswell to this case, we find that the FLRA's decision in Wright-Patterson, which was specifically affirmed by the U.S. Court of Appeals for the District of Columbia Circuit, provides sufficient basis for resolving the duty-to-bargain issue in favor of the negotiability of the Union's proposal. Moreover, the Panel is bound by FLRA precedent unless the FLRA reverses itself, or is reversed by the U.S. Supreme Court. Accordingly, we conclude the Employer's jurisdictional argument is without merit and that the Union's proposal is properly before the Panel.

On the merits, we believe that the Union's need to monitor the use of these agreements can best be met by affording it the opportunity to be present, with the understanding that its presence is for the purpose of observation only, unless, of course, the employee has requested that it represent him or her.

(OPTION B)

With respect to the arguments raised by the parties concerning the negotiability of the Union's proposal, we find it unnecesssary to address their validity because we are persuaded that the proposal intrudes on the privacy interests of employees who choose, after being informed of their right to Union representation (in accordance with the parties' agreement in this case), to proceed without the Union. We recognize, however, the Union's need to monitor the use of these agreements, and conclude that the impasse should be resolved through a compromise provision that should provide the Union with most of the information it needs while minimizing the intrusion on privacy interests. Under this compromise, the designated Union official at each of the Employer's facilities shall be provided, on a semi-annual basis, with a summary of the use of last chance and abeyance agreements at that facility, including the number and types of agreements and the nature of the proposed disciplinary charge that preceded the offering of such agreements. Names of the employees involved shall not be included. Acceptance of this information, of course, would not preclude the Union from requesting other information disclosable under § 7114 (b)(4) of the Statute.

(OPTION C)

With respect to the arguments raised by the parties concerning the negotiability of the Union's proposal, we find it unnecesssary to address their validity because, in our view, the legitimate interests of all parties can best be accommodated by giving the affected employee the option of disclosing to the Union that he or she has signed a last chance or abeyance agreement. Thus, we shall order that employees be given two copies of such agreements so that they may forward one to a Union representative if they so choose. At the same time, the Union is not precluded from requesting the release of such information under § 7114(b)(4) of the Statute. Such a compromise is consistent with Panel decisions in previous cases involving similar issues, and the record fails to persuade us that a different solution is warranted on the basis of the circumstances presented here.⁽⁸⁾

Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of the proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

1. Limitations on the Use of Last Chance or Abeyance Agreements

The parties' agreement shall incorporate, as binding provisions [or as guidance for administration of these agreements], the Office of Personnel Management guidance on last chance and abeyance agreements included in Appendix C to the revised MP-5, Part I, Chapter 752.

2. Signing in the Presence of a Union Official

(Provision described in Option A, B, C, or other.)

By direction of the Panel.

Linda A. Lafferty

Executive Director

May __, l993

Washington, D.C.

1. / American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 313-320 (1990) aff'd sub nom. U.S. Department of the Air Force v. FLRA, 949 F.2d 475 (D.C. Cir. 1991) (Proposal 2b) (Wright-Patterson).

2. / The Authority held that a provision requiring that the union president or his designee be given notice and the opportunity to be present would neither violate the right of employees to choose their own representative (other than the Union) at

meetings where last chance agreements were offered (Id. at 327-28), nor would it invade rights protected by the Privacy

Act (Id. at 332-34.) The Authority held that the information that would be revealed during such a meeting was not a "record" within the meaning of the Privacy Act, but that even assuming that it was, the Union's presence was not an unwarranted invasion of privacy because of the public's interest in ensuring that the agency administers its disciplinary system in a fair and evenhanded manner. Further, the Authority held that disclosure of such information is for a "routine use" because it is necessary to the Union's performance of its representational obligations to all the members of the bargaining unit.

3. / United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1176-82 (1992) (Corps of Engineers), where the Authority found nonnegotiable a proposal that the employer be required to inform the union whenever it issued a proposed disciplinary or adverse action letter, with the name of the employee, even where that employee had not designated the union as his representative. The Authority found that the employee's privacy interest outweighed "the public's interest in blanket disclosure of information as to all proposed disciplinary and adverse actions to a union, without an expressed, particularized need for the information[.]" Id. at 1180.

4. / See Department of the Air Force, Dobbins Air Force Base, Dobbins AFB, Georgia and Local 2069, American Federation of Government Employees, AFL-CIO, Case No. 91 FSIP 155 (February 6, 1992), Panel Release No. 325; and Department of Veterans

Affairs, Washington, D.C. and National Federation of Federal Employees, Case No. 90 FSIP 209, at 6-7 (December 28, 1990), Panel Release No. 304.

5. / American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 313-320 (1990) aff'd sub nom. U.S. Department of the Air Force v. FLRA, 949 F.2d 475 (D.C. Cir. 1991) (Proposal 2b) (Wright-Patterson).

6. / The Authority held that a provision requiring that the union president or his designee be given notice and the opportunity to be present would neither violate the right of employees to choose their own representative (other than the Union) at meetings where last chance agreements were offered (Id. at 327-28), nor would it invade rights protected by the Privacy

Act (Id. at 332-34.) The Authority held that the information that would be revealed during such a meeting was not a "record" within the meaning of the Privacy Act, but that even assuming that it was, the Union's presence was not an unwarranted invasion of privacy because of the public's interest in ensuring that the agency administers its disciplinary system in a fair and evenhanded manner. Further, the Authority held that disclosure of such information is for a "routine use" because it is necessary to the Union's performance of its representational obligations to all the members of the bargaining unit.

7. / United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1176-82 (1992) (Corps of Engineers), where the Authority found nonnegotiable a proposal that the employer be required to inform the union whenever it issued a proposed disciplinary or adverse action letter, with the name of the employee, even where that employee had not designated the union as his representative. The Authority found that the employee's privacy interest outweighed "the public's interest in blanket

disclosure of information as to all proposed disciplinary and adverse actions to a union, without an expressed, particularized need for the information[.]" Id. at 1180.

8. / See Department of the Air Force, Dobbins Air Force Base, Dobbins AFB, Georgia and Local 2069, American Federation of Government Employees, AFL-CIO, Case No. 91 FSIP 155 (February 6, 1992), Panel Release No. 325; and Department of Veterans Affairs, Washington, D.C. and National Federation of Federal Employees, Case No. 90 FSIP 209, at 6-7 (December 28, 1990), Panel Release No. 304.