American Federation of Government Employees, National Council of EEOC Locals, No. 216, AFL-CIO (Union) and Equal Employment Opportunity, Washington, DC (Agency)

 



[ v03 p504 ]
03:0504(80)NG
The decision of the Authority follows:


 3 FLRA No. 80
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, NATIONAL COUNCIL OF
 EEOC LOCALS NO. 216, AFL-CIO
 (Union)
 
 and 
 
 EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION, WASHINGTON, D.C.
 (Agency)
 
                                            Case No. 0-NG-197
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
 
                              UNION PROPOSAL
 
    ARTICLE 5
 
    SECTION D.
 
    AT LEAST ANNUALLY, EMPLOYEES SHALL HAVE THE OPPORTUNITY TO ASSESS IN
 WRITING THE
 
    PERFORMANCE OF SUPERVISORS.  ASSESSMENT FORMS SHALL BE DEVELOPED
 JOINTLY BY THE EMPLOYER AND
 
    THE UNION.
 
    SECTION H.
 
    NO EMPLOYEE SHALL BE DISCIPLINED BY A SUPERVISOR WHO HAS NOT RECEIVED
 TRAINING AS REQUIRED
 
    BY THE FPM AND OPM REGULATIONS.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN UNDER SECTION 7117 OF THE STATUTE, /1/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL IS OUTSIDE THE SCOPE OF BARGAINING UNDER
 SECTION 7117 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10
 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 FED.REQ. 3513(1980), THE
 AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO
 BARGAIN IS SUSTAINED.
 
    REASONS:  THE AGENCY CONTENDS, AMONG OTHER THINGS, THAT BOTH SECTIONS
 OF THE PROPOSAL ARE OUTSIDE THE DUTY TO BARGAIN BECAUSE THE ASSESSMENT
 OF SUPERVISORY PERFORMANCE AND THE TRAINING OF SUPERVISORS AS A
 PRECONDITION TO THE EXERCISE OF MANAGEMENT'S RIGHT TO DISCIPLINE DO NOT
 INVOLVE THE CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES.  WE
 AGREE WITH THE AGENCY'S CONTENTION.
 
    IN A RECENT DECISION, NATIONAL COUNCIL OF FIELD LABOR LOCALS,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. DEPARTMENT
 OF LABOR, WASHINGTON, D.C., CASE NO. O-NG-79, 3 FLRA NO. 44 (MAY 29,
 1980), THE AUTHORITY FOUND NONNEGOTIABLE A PROPOSAL WHICH PERTAINED TO
 THE FILLING OF SUPERVISORY AND MANAGEMENT POSITIONS WITH BARGAINING UNIT
 EMPLOYEES.  IN ITS DECISION, THE AUTHORITY STATED THAT:
 
    AN EXCLUSIVE REPRESENTATIVE'S OBLIGATION AND CORRELATIVE RIGHTS . . .
 EXTEND ONLY TO
 
    EMPLOYEES IN THE UNIT, UNDER SECTION 7114(A)(1).  FURTHERMORE, THE
 DEFINITION OF "COLLECTIVE
 
    BARGAINING" FOUND IN SECTION 7103(A)(12) . . . RESTRICTS THE SCOPE OF
 THE OBLIGATION TO
 
    BARGAIN IN GOOD FAITH TO MATTERS AFFECTING TH