American Federation of Government Employees, Local 1968, AFL-CIO (Union) and Department of Transportation, St. Lawrence Seaway Development Corporation, Massena, New York (Agency) 

 



[ v05 p70 ]
05:0070(14)NG
The decision of the Authority follows:


 5 FLRA No. 14
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1968
 Union
 
 and
 
 DEPARTMENT OF TRANSPORTATION, SAINT
 LAWRENCE SEAWAY DEVELOPMENT
 CORPORATION, MASSENA, NEW YORK
 Agency
 
                                            Case No. 0-NG-194
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    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 (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                             UNION PROPOSAL 1
 
    SECTION 1:  THE PARTIES AGREE THAT CRITICAL ELEMENTS OF A POSITION
 USED FOR PERFORMANCE
 
    APPRAISAL WILL BE BASED ONLY ON THE GRADE CONTROLLING FACTORS OF A
 POSITION FOR WHICH THERE
 
    WILL BE AN ACCURATE POSITION OR JOB DESCRIPTION.  SUCH CRITICAL
 ELEMENTS FOR PERFORMANCE
 
    APPRAISALS WILL BE WEIGHTED IN DIRECT PROPORTION TO THE RELATIVE
 IMPORTANCE IN GRADE
 
    DETERMINATION.  EACH EMPLOYEE WILL BE GIVEN A COPY OF THE CRITICAL
 ELEMENTS FOR THEIR POSITION
 
    AT THE BEGINNING OF THE APPRAISAL YEAR.  (ONLY THE UNDERSCORED
 PORTIONS OF THIS PROPOSAL HAVE
 
    BEEN ALLEGED TO BE OUTSIDE THE DUTY TO BARGAIN.)
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTIONS OF THE
 UNION'S PROPOSAL VIOLATE SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE
 AND ARE, THEREFORE, NOT WITHIN THE DUTY TO BARGAIN.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNDERSCORED PORTIONS OF THE PROPOSAL
 VIOLATE SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE.  /1/ ACCORDINGLY,
 PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR 2424.10, AS AMENDED BY 45 F.R. 48575), IT IS ORDERED THAT THE
 PETITION FOR REVIEW OF THE DISPUTED PROPOSAL BE DISMISSED.
 
    REASONS:  TAKEN TOGETHER, THE LANGUAGE OF THE DISPUTED PORTIONS OF
 THE PROPOSAL WOULD REQUIRE THAT THE CRITICAL ELEMENTS OF A POSITION BE
 BASED ONLY ON THE GRADE-CONTROLLING FACTORS OF A POSITION AND BE
 WEIGHTED IN DIRECT PROPORTION TO THEIR RELATIVE IMPORTANCE IN GRADE
 DETERMINATION.  CONSISTENT WITH THIS LANGUAGE, THE UNION STATES IN THE
 RECORD ITS INTENT THAT THE PROPOSAL "RESTRICT CRITICAL ELEMENTS TO ONLY
 THOSE FACTORS WHICH ARE GRADE CONTROLLING" COMPONENTS OF A JOB.  /2/
 THUS, THE PROPOSAL ON ITS FACE, AND AS INTERPRETED BY THE UNION, WOULD
 NOT PERMIT THE AGENCY TO DESIGNATE AS A CRITICAL ELEMENT ANY COMPONENT
 OF A JOB OTHER THAN A GRADE-CONTROLLING COMPONENT.  NOTWITHSTANDING THIS
 CONCEDED LIMITATION UNDER THE PROPOSAL ON WHAT COULD BE DESIGNATED A
 CRITICAL ELEMENT OF A POSITION, THE UNION ARGUES, FIRST OF ALL, THE
 PROPOSAL DOES NOT INTERFERE WITH MANAGEMENT'S RIGHT TO ASSIGN OTHER
 DUTIES TO AN EMPLOYEE AND, SECONDLY, THE PROPOSAL MERELY "ESTABLISHES A
 STANDARD BY WHICH AN APPROPRIATE THIRD PARTY WILL BE ABLE TO JUDGE THE
 ADEQUACY OF ANY CHALLENGED CRITICAL ELEMENT." THESE ARGUMENTS CANNOT BE
 SUSTAINED.
 
    IN ITS DECISION IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT
 OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), THE
 AUTHORITY HELD A PROPOSAL WHICH WOULD HAVE IDENTIFIED A PARTICULAR
 CRITICAL ELEMENT OF A POSITION AND ESTABLISHED THE STANDARD OF
 PERFORMANCE FOR THAT ELEMENT WAS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT
 WAS INCONSISTENT WITH MANAGEMENT'S STATUTORY AUTHORITY TO DIRECT ITS
 EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF THE
 STATUTE.  IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO.
 120(1980), THE AUTHORITY HELD THAT A PROPOSAL WHICH, IN CONTRAST,
 ESTABLISHED A GENERAL, NONQUANTITATIVE REQUIREMENT BY WHICH THE
 APPLICATION OF THE CRITICAL ELEMENTS AND PERFORMANCE STANDARDS DEVELOPED
 BY AGENCY MANAGEMENT COULD SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE BY
 AN EMPLOYEE WHO BELIEVED HE OR SHE HAD BEEN ADVERSELY AFFECTED BY THE
 APPLICATION OF THOSE CRITICAL ELEMENTS AND PERFORMANCE STANDARDS TO HIM
 OR HER WAS WITHIN THE DUTY TO BARGAIN.
 
    THE DECISION IN BUREAU OF THE PUBLIC DEBT IS CONTROLLING AS TO THE
 DISPUTED PORTION OF THE PROPOSAL IN THE PRESENT CASE BECAUSE THAT PART
 OF THE PROPOSAL EXPRESSLY WOULD PRECLUDE THE AGENCY FROM ESTABLISHING
 PARTICULAR CRITICAL ELEMENTS, I.E., THOSE WHICH ARE NOT BASED ON
 GRADE-CONTROLLING FACTORS FOR A PARTICULAR JOB.  SUCH A LIMITATION WOULD
 DIRECTLY PREVENT MANAGEMENT FROM EXERCISING ITS STATUTORY AUTHORITY TO
 DIRECT EMPLOYEES AND ASSIGN WORK BY ESTABLISHING THE CRITICAL ELEMENTS
 OF POSITIONS.  SIMILARLY, THE PROPOSAL AT ISSUE HEREIN IS
 DISTINGUISHABLE FROM THE ONE HELD TO BE WITHIN THE DUTY TO BARGAIN IN
 AFGE, LOCAL 32.  IN THE PRESENT CASE, THE PROPOSAL WOULD NOT MERELY
 PRESCRIBE GENERAL, NONQUANTITATIVE CRITERIA UNDER WHICH AN ARBITRATOR
 COULD REVIEW APPLICATION TO AN EMPLOYEE OF A PERFORMANCE STANDARD
 ESTABLISHED BY AGENCY MANAGEMENT.  RATHER, AS ALREADY STATED, IT WOULD
 PRECLUDE MANAGEMENT FROM IDENTIFYING AND ESTABLISHING AS A CRITICAL
 ELEMENT ANY JOB ELEMENT WHICH IS NOT GRADE-CONTROLLING.  THUS, FOR THE
 REASONS MORE FULLY SET FORTH IN BUREAU OF THE PUBLIC DEBT, THE INSTANT
 PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN.
 
                             UNION PROPOSAL 2
 
    SECTION 3.  EMPLOYEE'S ANNUAL PERFORMANCE RATING WILL BE THE RESULT
 OF THE APPLICATION OF
 
    STANDARDS OF PERFORMANCE TO THE APPROPRIATE CRITICAL ELEMENTS OF A
 POSITION ESTABLISHED IN
 
    ACCORDANCE WITH SECTIONS 1 AND 2 ABOVE.  ALL PERFORMANCE APPRAISALS
 SHALL BE IN WRITING, GIVEN
 
    TO THE EMPLOYEE AND STATE IN DETAIL THE BASIS FOR THE RATING.  THE
 EMPLOYEE SHALL BE GIVEN
 
    ADEQUATE OPPORTUNITY TO IMPROVE PERFORMANCE, NOT LIMITED TO THE
 STATUTORY NOTICE PERIOD, AND
 
    MANAGEMENT WILL MAKE A SINCERE EFFORT TO ASSIST THE EMPLOYEES IN
 IMPROVING PERFORMANCE TO THE
 
    LEVEL REQUIRED.  (ONLY THE UNDERSCORED PORTION OF THIS PROPOSAL HAS
 BEEN ALLEGED TO BE OUTSIDE
 
    THE DUTY TO BARGAIN.)
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTION OF THE
 UNION'S PROPOSAL IS, AS ALLEGED BY THE AGENCY, INCONSISTENT WITH LAW AND
 GOVERNMENT-WIDE RULES OR REGULATIONS AND, THEREFORE, EXCLUDED FROM THE
 OBLIGATION TO BARGAIN UNDER SECTION 7117(A)(1) OF THE STATUTE.
 
    CONCLUSION AND ORDER:  TO THE EXTENT THE PROPOSAL PRESCRIBES PERIODIC
 APPRAISAL OF EMPLOYEES ON AN ANNUAL BASIS IT IS CONSISTENT WITH LAW AND
 GOVERNMENT-WIDE RULES OR REGULATIONS AND, THEREFORE, IS WITHIN THE DUTY
 TO BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R. 48575, IT IS
 ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
 THE PARTIES) BARGAIN CONCERNING THE SUBJECT PROPOSAL EXCEPT AS INDICATED
 BELOW.  /3/ THE REMAINING PART OF THE UNDERSCORED PORTION OF THE UNION'S
 PROPOSAL IS INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE
 STATUTE TO THE EXTENT THAT IT INCORPORATES BY REFERENCE THE REQUIREMENTS
 OF UNION PROPOSAL 1, HELD TO BE OUTSIDE THE DUTY TO BARGAIN AT PAGE 2 OF
 THIS DECISION.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R.
 48575), IT IS ORDERED THAT THE UNION'S APPEAL BE DISMISSED TO THAT
 EXTENT.
 
    REASONS:  ON ITS FACE AND AS INTERPRETED BY THE UNION THE PROPOSAL
 PRINCIPALLY IS CONCERNED WITH THE FREQUENCY OF THE "PERIODIC" APPRAISALS
 OF JOB PERFORMANCE REQUIRED UNDER SECTION 4302 OF TITLE 5 OF THE UNITED
 STATES CODE, AS AMENDED BY THE CIVIL SERVICE REFORM ACT.  /4/ THE
 PROPOSAL WOULD REQUIRE, IN THIS REGARD, AN ANNUAL RATING.
 
    THE AGENCY INTERPRETS THE PROPOSAL, HOWEVER, AS LIMITING MANAGEMENT'S
 RIGHT TO PERIODICALLY APPRAISE AN EMPLOYEE'S PERFORMANCE AND, WHERE
 NECESSARY, TO TAKE APPROPRIATE ACTION UNDER LAW, 5 U.S.C. 4303, AND
 IMPLEMENTING REGULATIONS.  /5/
 
    THE AGENCY'S CHARACTERIZATION OF THE PROPOSAL CANNOT BE SUSTAINED.
 THE PROPOSAL DOES NOT IN ANY MANNER PURPORT TO PROHIBIT AGENCY
 MANAGEMENT FROM TAKING ACTION CONSISTENT WITH APPLICABLE LAWS AND
 REGULATIONS AT ANY TIME THE AGENCY DETERMINES THAT AN EMPLOYEE'S
 PERFORMANCE WARRANTS SUCH ACTION.  THE PROPOSAL SIMPLY DOES NOT ADDRESS
 SUCH MATTERS.
 
    RATHER, AS INDICATED, THE PROPOSAL MERELY REQUIRES THAT EMPLOYEE
 PERFORMANCE APPRAISALS BE CONDUCTED ON AN ANNUAL BASIS.  IN THIS REGARD,
 5 U.S.C. 4302(A)(1), SUPRA, NOTE 4, REQUIRES THAT PERFORMANCE APPRAISAL
 SYSTEMS PROVIDE FOR PERIODIC APPRAISAL OF EMPLOYEE JOB PERFORMANCE BUT
 DOES NOT SPECIFY THE FREQUENCY WITH WHICH SUCH APPRAISALS MUST OCCUR.
 SIMILARLY, THE IMPLEMENTING REGULATIONS OF THE OFFICE OF PERSONNEL
 MANAGEMENT (OPM), IN PARTICULAR, 5 CFR 430.203(E), INDICATE THAT EACH
 AGENCY HAS DISCRETION IN ESTABLISHING THE FREQUENCY OF THE PERIODIC
 APPRAISAL REQUIRED IN AN APPRAISAL SYSTEM UNDER 5 U.S.C. 4302.  IN THIS
 REGARD, THE OPM REGULATIONS STATE AS FOLLOWS:
 
    SEC. 430.203 THE PERFORMANCE APPRAISAL PROCESS.
 
   *          *          *          *
 
 
    (E) 5 U.S.C. 4302 REQUIRES THAT EACH APPRAISAL SYSTEM SHALL PROVIDE
 FOR PERIODIC APPRAISALS
 
    OF PERFORMANCE.  EMPLOYEES SHALL GENERALLY BE APPRAISED ON AT LEAST
 AN ANNUAL BASIS.  AGENCIES
 
    MAY PROVIDE FOR LONGER APPRAISAL PERIODS WHEN DUTIES AND
 RESPONSIBILITIES OF A POSITION OR THE
 
    TOUR OF DUTY OF A POSITION SO WARRANT.
 
    THUS, UNDER BOTH LAW AND OPM REGULATIONS THE FREQUENCY OF PERIODIC
 PERFORMANCE APPRAISALS IS A MATTER WITHIN THE DISCRETION OF THE AGENCY.
 HENCE, TO THE EXTENT THAT THE PROPOSAL WOULD ESTABLISH SUCH FREQUENCY,
 I.E., PROVIDES FOR ANNUAL PERFORMANCE APPRAISALS, IT IS NOT INCONSISTENT
 WITH, BUT MERELY IMPLEMENTS, THE REQUIREMENTS OF LAW AND REGULATION FOR
 PERIODIC APPRAISALS AND DOES NOT PREVENT MANAGEMENT FROM TAKING
 APPROPRIATE ACTION UNDER LAW.  IN THIS RESPECT, THEREFORE, CONTRARY TO
 THE POSITION OF THE AGENCY, THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN.
 
    FINALLY, UNION PROPOSAL 2 PROVIDES THAT CRITICAL ELEMENTS OF A
 POSITION SHALL BE IDENTIFIED BY AGENCY MANAGEMENT IN ACCORDANCE WITH
 SECTION 1, I.E., HEREIN, UNION PROPOSAL 1, SUPRA.  TO THE EXTENT THAT
 SECTION 1 HAS BEEN DETERMINED TO BE OUTSIDE THE DUTY TO BARGAIN UNDER
 SECTION 7106 OF THE STATUTE, SECTION 3, I.E., UNION PROPOSAL 2, IS
 LIKEWISE OUTSIDE THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE.
 
                             UNION PROPOSAL 3
 
    SECTION 4.  THERE SHALL BE NO SECRET STUDIES BEARING ON PERFORMANCE
 APPRAISALS.  ALL
 
    STUDIES CONDUCTED BY THE CORPORATION WILL BE CONDUCTED ON TYPICAL
 WORKERS UNDER NORMAL WORKING
 
    CONDITIONS.  THE UNION SHALL PARTICIPATE ON AN EQUAL BASIS IN THE
 DEVELOPMENT OR REVISIONS OF
 
    ALL MEASURES OF PERFORMANCE AND STUDIES INCLUDING BUT NOT LIMITED TO
 SELECTION OF TYPICAL
 
    WORKERS AND CONDITIONS.  IF AGREEMENT CANNOT BE REACHED, FORMAL
 NEGOTIATIONS WILL BE
 
    CONVENED.  ANY IMPASSES WILL BE REFERRED TO THE FEDERAL SERVICE
 IMPASSES PANEL FOR
 
    RESOLUTION.  (ONLY THE UNDERSCORED PORTION OF THIS PROPOSAL HAS BEEN
 ALLEGED TO BE OUTSIDE THE
 
    DUTY TO BARGAIN.)
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTION OF THE
 UNION'S PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE OR, AS
 ALLEGED BY THE AGENCY, THE PROPOSAL VIOLATES SECTION 7106 OF THE
 STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNDERSCORED PORTION OF THE PROPOSAL WOULD
 REQUIRE NEGOTIATION ON THE CONTENT OF PERFORMANCE STANDARDS AND,
 THEREFORE, VIOLATES SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R. 48575), IT IS ORDERED
 THAT THE PETITION FOR REVIEW OF THE UNDERSCORED PORTION OF THE DISPUTED
 PROPOSAL BE DISMISSED.
 
    REASONS:  THE UNDERSCORED PORTION OF UNION PROPOSAL 3 WOULD REQUIRE
 BARGAINING TO IMPASSE CONCERNING THE PARTICULAR PERFORMANCE STANDARDS TO
 BE ESTABLISHED FOR EMPLOYEES IN THE BARGAINING UNIT.  CONSEQUENTLY, THAT
 PORTION OF THE PROPOSAL BEARS NO MATERIAL DIFFERENCE IN ITS EFFECT FROM
 THE PROPOSAL WHICH WAS BEFORE THE AUTHORITY IN BUREAU OF THE PUBLIC
 DEBT, SUPRA, PAGE 3.  IN THAT DECISION, THE AUTHORITY HELD THAT A
 PROPOSAL TO ESTABLISH A PARTICULAR CRITICAL ELEMENT AND PERFORMANCE
 STANDARD WAS INCONSISTENT WITH MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES
 AND TO ASSIGN WORK UNDER SECTION 1706(A)(2)(A) AND (B) OF THE STATUTE
 AND, THEREFORE, WAS NOT WITHIN THE DUTY TO BARGAIN.  THEREFORE, FOR THE
 REASONS FULLY SET FORTH IN BUREAU OF THE PUBLIC DEBT, THE PROPOSAL HERE
 IN DISPUTE, TO THE EXTENT THAT IT WOULD REQUIRE NEGOTIATIONS ON
 PARTICULAR PERFORMANCE STANDARDS AND CRITICAL ELEMENTS, MUST ALSO BE
 HELD TO BE OUTSIDE THE DUTY TO BARGAIN.
 
                             UNION PROPOSAL 4
 
    SECTION 6.  ANY DISPUTES UNDER THIS ARTICLE MAY BE RESOLVED UNDER THE
 NEGOTIATED GRIEVANCE
 
    PROCEDURE INCLUDING BUT NOT LIMITED TO:
 
    1.  CHALLENGES TO CRITICAL ELEMENTS OF POSITION.
 
    2.  THE MEASURE OF PERFORMANCE AS SET FORTH IN PERFORMANCE STANDARDS.
 
    3.  THE PERFORMANCE APPRAISAL ITSELF.
 
    4.  ANY DISPUTED ACTION TAKEN AS A RESULT OF A PERFORMANCE APPRAISAL
 WILL BE TREATED AS ANY
 
    OTHER DISCIPLINARY MATTER.  (ONLY THE UNDERSCORED PORTIONS OF THIS
 PROPOSAL HAVE BEEN ALLEGED
 
    TO BE OUTSIDE THE DUTY TO BARGAIN.)
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTIONS OF THE
 UNION'S PROPOSAL ARE INCONSISTENT WITH LAW AND GOVERNMENT-WIDE
 REGULATION.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  SUBSECTIONS 1 AND 2 OF THE UNION'S PROPOSAL
 ARE INCONSISTENT WITH LAW, I.E., SECTION 7106 OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R. 48575), IT IS ORDERED
 THAT THE PETITION FOR REVIEW AS TO SUBSECTIONS 1 AND 2 OF THE DISPUTED
 PROPOSAL BE DISMISSED.  HOWEVER, SUBSECTION 4 OF UNION PROPOSAL 4
 RELATES TO THE ADVERSE AFFECT ON EMPLOYEES OF THE EXERCISE OF
 MANAGEMENT'S RIGHTS, I.E., THE APPLICATION OF CRITICAL ELEMENTS AND
 PERFORMANCE STANDARDS ESTABLISHED BY MANAGEMENT, WITHIN THE MEANING OF
 SECTION 7106(B)(3) OF THE STATUTE AND, THUS, IS NOT EXCLUDED BY LAW FROM
 THE SCOPE OF A NEGOTIATED GRIEVANCE PROCEDURE;  NOR IS IT OTHERWISE
 CONTRARY TO LAW AND GOVERNMENT-WIDE REGULATION.  ACCORDINGLY, PURSUANT
 TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2424.10, AS AMENDED BY 45 F.R. 48575), IT IS ORDERED THAT THE AGENCY
 SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
 CONCERNING SUBSECTION 4 OF THE UNION'S PROPOSAL.  /6/
 
    REASONS:  UNION PROPOSAL 4, INSOFAR AS DISPUTED HEREIN, WOULD EXTEND
 THE COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE TO THE AGENCY'S
 IDENTIFICATION OF THE CRITICAL ELEMENTS OF A POSITION AND ESTABLISHMENT
 OF PERFORMANCE STANDARDS, AND TO ANY ACTION TAKEN PURSUANT TO THE
 APPLICATION OF SUCH CRITICAL ELEMENTS AND PERFORMANCE STANDARDS TO AN
 EMPLOYEE IN A PERFORMANCE APPRAISAL.  THE AGENCY ALLEGES THAT THE
 UNION'S PROPOSAL IS CONTRARY TO SECTION 7106 OF THE STATUTE.  THE AGENCY
 FURTHER ALLEGES THAT SUBSECTION 4 OF THE PROPOSAL, IN PARTICULAR,
 VIOLATES APPLICABLE LAW AND GOVERNMENT-WIDE REGULATION BY REQUIRING ANY
 ACTION TAKEN AS A RESULT OF A PERFORMANCE APPRAISAL TO BE TREATED AS ANY
 OTHER DISCIPLINARY MATTER.  FOR THE FOLLOWING REASONS, THE AUTHORITY
 SUSTAINS THE AGENCY'S POSITION AS TO SUBSECTIONS 1 AND 2 OF THE
 PROPOSAL, BUT NOT AS TO SUBSECTION 4.
 
    CONSISTENT WITH THE LANGUAGE AND THE LEGISLATIVE HISTORY OF THE
 STATUTE, THE AUTHORITY HAS HELD THAT THE SCOPE OF A NEGOTIATED GRIEVANCE
 PROCEDURE SHALL EXTEND TO ALL MATTERS WHICH UNDER PROVISIONS OF LAW
 COULD BE COVERED UNLESS THE PARTIES NEGOTIATE THE EXCLUSION OF SUCH
 MATTERS.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 3669 AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA,
 3 FLRA NO.  48(1980);  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 547, AFL-CIO AND VETERANS ADMINISTRATION MEDICAL CENTER, TAMPA,
 FLORIDA, 4 FLRA NO. 50(1980).  IN THIS REGARD, THE AUTHORITY DECIDED IN
 NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU
 OF THE PUBLIC DEBT, 3 FLRA NO.  119(1980), THAT THE IDENTIFICATION OF
 THE CRITICAL ELEMENTS OF A POSITION AND THE ESTABLISHMENT OF PERFORMANCE
 STANDARDS CONSTITUTE AN EXERCISE OF THE RIGHTS OF AGENCY MANAGEMENT TO
 DIRECT ITS EMPLOYEES AND TO ASSIGN WORK UNDER SECTION 7106 OF THE
 STATUTE.  THEREFORE, AS TO UNION PROPOSAL 4, THE QUESTION PRESENTED IS
 WHETHER, IN EXTENDING THE COVERAGE OF THE GRIEVANCE PROCEDURE TO THE
 AGENCY'S EXERCISE OF ITS AUTHORITY TO IDENTIFY THE CRITICAL ELEMENTS OF
 A POSITION (SUBSECTION 1), TO ESTABLISH PERFORMANCE STANDARDS
 (SUBSECTION 2), AND TO ANY ACTION TAKEN AS A RESULT OF A PERFORMANCE
 APPRAISAL (SUBSECTION 4), THE PROPOSAL VIOLATES SECTION 7106(A)(2)(A)
 AND (B) OF THE STATUTE AND THUS IS OUTSIDE THE DUTY TO BARGAIN.
 
    SECTION 7106 OF THE STATUTE PROVIDES IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
    (1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
 EMPLOYEES, AND INTERNAL
 
    SECURITY PRACTICES OF THE AGENCY;  AND
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED(.)
 
   *          *          *          *
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY, OR ON THE
 
    TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK;
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION;  OR
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY
 
    AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
 
    THE PLAIN LANGUAGE OF SECTION 7106 PROVIDES THAT "NOTHING" IN THE
 STATUTE, I.E., 5 U.S.C. 7101 ET SEQ., SHALL "AFFECT THE AUTHORITY" OF AN
 AGENCY TO EXERCISE THE RIGHTS ENUMERATED THEREIN.  THEREFORE, NO
 GRIEVANCE PROCEDURE COULD BE NEGOTIATED PURSUANT TO SECTION 7121 OF THE
 STATUTE WHICH WOULD DENY THE AUTHORITY OF AN AGENCY TO EXERCISE ITS
 STATUTORY RIGHTS UNDER SECTION 7106.  /7/ SECTION 7106 ALSO PROVIDES
 THAT THE RIGHTS OF AGENCY MANAGEMENT SET FORTH THEREIN ARE SUBJECT TO
 THE PROVISIONS OF SECTION 7106(B), I.E., SECTION 7106(B)(2) AND (3).
 HOWEVER, SUBSECTIONS 1 AND 2 OF UNION PROPOSAL 4 ARE NOT CONCERNED IN
 ANY MANNER WITH PROCEDURES LEADING UP TO OR APPROPRIATE ARRANGEMENTS
 FOR
 EMPLOYEES ADVERSELY AFFECTED BY THE EXERCISE OF AGENCY MANAGEMENT'S
 RIGHT TO IDENTIFY CRITICAL ELEMENTS AND TO ESTABLISH PERFORMANCE
 STANDARDS.  THUS, THE PROVISIONS OF SECTION 7106(B)(2) AND (3) ARE NOT
 APPLICABLE TO THE DISPOSITION OF SUBSECTIONS 1 AND 2 OF THE PROPOSAL.
 
    MORE PARTICULARLY, SUBSECTIONS 1 AND 2 OF UNION PROPOSAL 4, BY
 PROVIDING FOR GRIEVANCES WHICH CHALLENGE THE AGENCY'S IDENTIFICATION OF
 THE CRITICAL ELEMENTS OF A POSITION AND ESTABLISHMENT OF PERFORMANCE
 STANDARDS, WOULD PERMIT NEGOTIATED GRIEVANCE PROCEDURES TO EXTEND TO THE
 AGENCY'S EXERCISE OF ITS RIGHTS TO DIRECT EMPLOYEES AND TO ASSIGN WORK
 UNDER SECTION 7106(A)(2)(A) AND (B).  THESE SUBSECTIONS OF THE PROPOSAL
 THEREBY WOULD SUBJECT THE AGENCY'S EXERCISE OF THESE RESERVED RIGHTS TO
 ARBITRAL REVIEW AND THEREFORE TO THE POSSIBILITY OF ARBITRATORS
 SUBSTITUTING THEIR JUDGMENT FOR THAT OF THE AGENCY WITH RESPECT TO THOSE
 STATUTORY RIGHTS.  THAT IS, SUBSECTIONS 1 AND 2 WOULD, IN EFFECT, PERMIT
 ARBITRATORS TO OVERTURN THE AGENCY'S IDENTIFICATION OF CRITICAL ELEMENTS
 AND ESTABLISHMENT OF PERFORMANCE STANDARDS AND TO RENDER AWARDS WHICH
 WOULD REQUIRE THE AGENCY TO USE DIFFERENT CRITICAL ELEMENTS OR SET
 DIFFERENT STANDARDS, CONTRARY TO THE AGENCY'S RIGHTS UNDER THE STATUTE.
 THUS, BY PROVIDING FOR ARBITRAL REVIEW OF AGENCY MANAGEMENT'S
 IDENTIFICATION OF CRITICAL ELEMENTS AND ESTABLISHMENT OF PERFORMANCE
 STANDARDS PURSUANT TO ITS STATUTORY RIGHTS UNDER SECTION 7106, THE
 PROPOSED SUBSECTIONS 1 AND 2 VIOLATE SECTION 7106 AND ARE OUTSIDE THE
 DUTY TO BARGAIN.
 
    TURNING NOW TO SUBSECTION 4, THIS PART OF THE UNION'S PROPOSAL
 PROVIDES THAT THE GRIEVANCE PROCEDURE EXTENDS TO ANY ACTION TAKEN AS A
 RESULT OF A PERFORMANCE APPRAISAL.  AS NOTED ABOVE, SUPRA, PAGE 10,
 SECTION 7106 OF THE STATUTE PROVIDES THAT AN AGENCY'S EXERCISE OF THE
 MANAGEMENT RIGHTS RESERVED THEREIN IS SUBJECT TO THE PROVISIONS OF
 SUBSECTION (B).  THAT IS, INSOFAR AS RELEVANT HEREIN, AN AGENCY IS
 OBLIGATED, UNDER SECTION 7106(B)(2), TO NEGOTIATE ON PROCEDURES IT WILL
 OBSERVE IN EXERCISING ITS RESERVED RIGHTS AND, UNDER SECTION 7106(B)(3),
 ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF THOSE RIGHTS.  THUS, TO THE EXTENT THAT MATTERS PROPOSED FOR
 INCLUSION WITHIN THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE
 CONSTITUTE PROCEDURES UNDER SECTION 7106(B)(2) OR APPROPRIATE
 ARRANGEMENTS UNDER SECTION 7106(B)(3) THEY ARE MATTERS WHICH UNDER LAW
 CAN BE COVERED BY SUCH PROCEDURES.  FOR EXAMPLE, IN AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
 MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120(1980), THE AUTHORITY HELD A
 PROPOSAL ESTABLISHING THE CRITERION "FAIR AND EQUITABLE" BY WHICH THE
 APPLICATION OF CRITICAL ELEMENTS AND PERFORMANCE STANDARDS ESTABLISHED
 BY MANAGEMENT COULD BE EVALUATED IN A SUBSEQUENT GRIEVANCE BY AN
 EMPLOYEE WHO BELIEVED THAT HE HAD BEEN ADVERSELY AFFECTED BY THE
 APPLICATION OF MANAGEMENT'S PERFORMANCE STANDARD TO HIM WAS WITHIN THE
 DUTY TO BARGAIN.  THUS, UNDER THE RESULT IN AFGE, LOCAL 32, AGENCY
 MANAGEMENT'S RIGHT TO ESTABLISH PERFORMANCE STANDARDS AND CRITICAL
 ELEMENTS WAS NOT DENIED.  HOWEVER, AN EMPLOYEE COULD CHALLENGE
 DISCIPLINE FOR ALLEGED FAILURE TO MEET SUCH STANDARDS THROUGH, FOR
 EXAMPLE, EITHER "JUST CAUSE" LANGUAGE OF AN ESTABLISHED GRIEVANCE
 PROCEDURE OR IN ACCORDANCE WITH A NEGOTIATED "FAIR AND EQUITABLE"
 STANDARD.
 
    IN THIS REGARD, SUBSECTION 4 OF UNION PROPOSAL 4 PROVIDES, AS
 INDICATED, THAT THE GRIEVANCE PROCEDURE EXTENDS TO ANY ACTION TAKEN AS A
 RESULT OF A PERFORMANCE APPRAISAL, I.E., TO ANY ACTION TAKEN AS A RESULT
 OF THE APPLICATION OF CRITICAL ELEMENTS AND PERFORMANCE STANDARDS TO AN
 EMPLOYEE COVERED BY THE PROCEDURE.  THUS, SUBSECTION 4 OF UNION PROPOSAL
 4 HEREIN, IN A MANNER SIMILAR TO THE PROPOSAL IN AFGE, LOCAL 32, EXTENDS
 THE NEGOTIATED GRIEVANCE PROCEDURE TO MATTERS RELATING TO THE ADVERSE
 EFFECT ON AN EMPLOYEE OF THE EXERCISE OF MANAGEMENT'S RIGHTS AND, THUS,
 DOES NOT VIOLATE SECTION 7106 OF THE STATUTE.
 
    AS STATED AT THE OUTSET, IN ADDITION TO ITS ALLEGATION THAT
 SUBSECTION 4 OF THE PROPOSAL VIOLATES SECTION 7106 OF THE STATUTE, THE
 AGENCY ARGUES SUBSECTION 4 VIOLATES APPLICABLE LAW AND GOVERNMENT-WIDE
 REGULATION BY REQUIRING ANY ACTION TAKEN AS A RESULT OF A PERFORMANCE
 APPRAISAL TO BE TREATED AS ANY OTHER DISCIPLINARY MATTER.  THAT IS,
 ACCORDING TO THE AGENCY, SUBSECTION 4 WOULD REQUIRE AN ACTION FOR
 UNACCEPTABLE PERFORMANCE TO BE PROCESSED AS ANY OTHER DISCIPLINARY
 ACTION, RATHER THAN UNDER THE PROVISIONS OF CHAPTER 43 OF TITLE 5 OF THE
 UNITED STATES CODE SPECIFICALLY GOVERNING ACTIONS FOR UNACCEPTABLE
 PERFORMANCE.  /8/ THE UNION STATES IN RESPONSE THAT SUBSECTION 4 MERELY
 PROVIDES, AS A PROCEDURAL MATTER CONSISTENT WITH LAW AND REGULATION,
 THAT GRIEVANCES CHALLENGING ACTIONS FOR UNACCEPTABLE PERFORMANCE TAKEN
 PURSUANT TO SECTION 4303, SEE, SUPRA, NOTE 5, MAY BE BROUGHT UNDER THE
 CONTRACT PROVISIONS REGARDING DISCIPLINARY MATTERS.
 
    THUS, BASED ON THE UNION'S INTERPRETATION OF ITS OWN PROPOSAL, THE
 AGENCY HAS MISINTERPRETED THE EFFECT OF SUBSECTION 4.  CONTRARY TO THE
 AGENCY CONTENTION, THE UNION'S PROPOSAL DOES NOT REQUIRE THE UTILIZATION
 OF THE NEGOTIATED GRIEVANCE PROCEDURE IN PLACE OF THE PROCEDURES
 GOVERNING ACTIONS FOR UNACCEPTABLE PERFORMANCE SET FORTH IN SECTION
 4303(B) - (D).  RATHER, IT MERELY STATES THE PROCEDURES FOR PROCESSING A
 GRIEVANCE CHALLENGING AN ACTION FOR UNACCEPTABLE PERFORMANCE AFTER THE
 AGENCY HAS TAKEN SUCH ACTION IN ACCORDANCE WITH THE PROCEDURES SET FORTH
 IN SECTION 4303.  THAT IS, SUBSECTION 4 PROVIDES THAT WHEN AN ACTION FOR
 UNACCEPTABLE PERFORMANCE PURSUANT TO SECTION 4303 IS GRIEVED UNDER THE
 PROVISIONS OF THE NEGOTIATED GRIEVANCE PROCEDURE, /9/ INSTEAD OF
 APPEALED TO THE MERIT SYSTEMS PROTECTION BOARD IN ACCORDANCE WITH
 SECTIONS 4303(E) AND 7701 OF TITLE 5 OF THE UNITED STATES CODE, SUCH A
 GRIEVANCE WILL BE TREATED UNDER THE GRIEVANCE PROCEDURE AS WOULD ANY
 OTHER DISCIPLINARY ACTION.  IN THIS CONNECTION, THE UNION EXPRESSLY
 CONCEDES THAT AN ARBITRATOR, IN REVIEWING A GRIEVANCE FOR UNACCEPTABLE
 PERFORMANCE PURSUANT TO SUBSECTION 4, WOULD BE BOUND BY THE REQUIREMENT
 IN SECTION 7121(E)(2) OF THE STATUTE /10/ TO APPLY THE STANDARD SET
 FORTH IN SECTION 7701(C)(1).  /11/ THE AUTHORITY ADOPTS THE UNION'S
 INTERPRETATION OF SUBSECTION 4.  SO INTERPRETED, THE SUBSECTION IS
 CONSISTENT WITH LAW AND GOVERNMENT-WIDE REGULATION AND IS WITHIN THE
 DUTY TO BARGAIN.
 
    ACCORDINGLY, FOR THE FOREGOING REASONS, SUBSECTIONS 1 AND 2 OF UNION
 PROPOSAL 4 ARE OUTSIDE THE DUTY TO BARGAIN AND SUBSECTION 4 IS WITHIN
 THE DUTY TO BARGAIN.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 9, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7106 OF THE STATUTE (5 U.S.C. 7106) PROVIDES, IN RELEVANT
 PART, AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   *          *          *          *
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED(.)
 
    /2/ UNION RESPONSE AT 14.
 
    /3/ IN SO DECIDING THAT THE PROPOSAL TO THIS EXTENT IS WITHIN THE
 DUTY TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /4/ 5 U.S.C. 4302(A)(1) PROVIDES AS FOLLOWS:
 
    SEC. 4302.  ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS
 
    (A) EACH AGENCY SHALL DEVELOP ONE OR MORE PERFORMANCE APPRAISAL
 SYSTEMS WHICH--
 
    (1) PROVIDE FOR PERIODIC APPRAISALS OF JOB PERFORMANCE OF
 EMPLOYEES(.)
 
    /5/ 5 U.S.C. 4303 PROVIDES AS FOLLOWS:
 
    SEC. 4303.  ACTIONS BASED ON UNACCEPTABLE PERFORMANCE
 
    (A) SUBJECT TO THE PROVISIONS OF THIS SECTION, AN AGENCY MAY REDUCE
 IN GRADE OR REMOVE AN
 
    EMPLOYEE FOR UNACCEPTABLE PERFORMANCE.
 
    (B)(1) AN EMPLOYEE WHOSE REDUCTION IN GRADE OR REMOVAL IS PROPOSED
 UNDER THIS SECTION IS
 
    ENTITLED TO--
 
    (A) 30 DAYS' ADVANCE WRITTEN NOTICE OF THE PROPOSED ACTION WHICH
 IDENTIFIES--
 
    (I) SPECIFIC INSTANCES OF UNACCEPTABLE PERFORMANCE BY THE EMPLOYEE ON
 WHICH THE PROPOSED
 
    ACTION IS BASED;  AND
 
    (II) THE CRITICAL ELEMENTS OF THE EMPLOYEE'S POSITION INVOLVED IN
 EACH INSTANCE OF
 
    UNACCEPTABLE PERFORMANCE;
 
    (B) BE REPRESENTED BY AN ATTORNEY OR OTHER REPRESENTATIVE;
 
    (C) A REASONABLE TIME TO ANSWER ORALLY AND IN WRITING;  AND
 
    (D) A WRITTEN DECISION WHICH--
 
    (I) IN THE CASE OF A REDUCTION IN GRADE OR REMOVAL UNDER THIS
 SECTION, SPECIFIES THE
 
    INSTANCES OF UNACCEPTABLE PERFORMANCE BY THE EMPLOYEE ON WHICH THE
 REDUCTION IN GRADE OR
 
    REMOVAL IS BASED, AND
 
    (II) UNLESS PROPOSED BY THE HEAD OF THE AGENCY, HAS BEEN CONCURRED IN
 BY AN EMPLOYEE WHO IS
 
    IN A HIGHER POSITION THAN THE EMPLOYEE WHO PROPOSED THE ACTION.
 
    (2) AN AGENCY MAY, UNDER REGULATIONS PRESCRIBED BY THE HEAD OF SUCH
 AGENCY, EXTEND THE
 
    NOTICE PERIOD UNDER SUBSECTION (B)(1)(A) OF THIS SECTION FOR NOT MORE
 THAN 30 DAYS.  AN AGENCY
 
    MAY EXTEND THE NOTICE PERIOD FOR MORE THAN 30 DAYS ONLY IN ACCORDANCE
 WITH REGULATIONS ISSUED
 
    BY THE OFFICE OF PERSONNEL MANAGEMENT.
 
    (C) THE DECISION TO RETAIN, REDUCE IN GRADE, OR REMOVE AN EMPLOYEE--
 
    (1) SHALL BE MADE WITHIN 30 DAYS AFTER THE DATE OF EXPIRATION OF THE
 NOTICE PERIOD, AND
 
    (2) IN THE CASE OF A REDUCTION IN GRADE OR REMOVAL, MAY BE BASED ONLY
 ON THOSE INSTANCES OF
 
    UNACCEPTABLE PERFORMANCE BY THE EMPLOYEE--
 
    (A) WHICH OCCURRED DURING THE 1-YEAR PERIOD ENDING ON THE DATE OF THE
 NOTICE UNDER
 
    SUBSECTION (B)(1)(A) OF THIS SECTION IN CONNECTION WITH THE DECISION;
  AND
 
    (B) FOR WHICH THE NOTICE AND OTHER REQUIREMENTS OF THIS SECTION ARE
 COMPLIED WITH.
 
    (D) IF, BECAUSE OF PERFORMANCE IMPROVEMENT BY THE EMPLOYEE DURING THE
 NOTICE PERIOD, THE
 
    EMPLOYEE IS NOT REDUCED IN GRADE OR REMOVED, AND THE EMPLOYEE'S
 PERFORMANCE CONTINUES TO BE
 
    ACCEPTABLE FOR 1 YEAR FROM THE DATE OF THE ADVANCE WRITTEN NOTICE
 PROVIDED UNDER SUBSECTION
 
    (B)(1)(A) OF THIS SECTION, ANY ENTRY OR OTHER NOTATION OF THE
 UNACCEPTABLE PERFORMANCE FOR
 
    WHICH THE ACTION WAS PROPOSED UNDER THIS SECTION SHALL BE REMOVED
 FROM ANY AGENCY RECORD
 
    RELATING TO THE EMPLOYEE.
 
    (E) ANY EMPLOYEE WHO IS A PREFERENCE ELIGIBLE OR IS IN THE
 COMPETITIVE SERVICE AND WHO HAS
 
    BEEN REDUCED IN GRADE OR REMOVED UNDER THIS SECTION IS ENTITLED TO
 APPEAL THE ACTION TO THE
 
    MERIT SYSTEMS PROTECTION BOARD UNDER SECTION 7701 OF THIS TITLE.
 
    (F) THIS SECTION DOES NOT APPLY TO--
 
    (1) THE REDUCTION TO THE GRADE PREVIOUSLY HELD OF A SUPERVISOR OR
 MANAGER WHO HAS NOT
 
    COMPLETED THE PROBATIONARY PERIOD UNDER SECTION 3321(A)(2) OF THIS
 TITLE,
 
    (2) THE REDUCTION IN GRADE OR REMOVAL OF AN EMPLOYEE IN THE
 COMPETITIVE SERVICE WHO IS
 
    SERVING A PROBATIONARY OR TRIAL PERIOD UNDER AN INITIAL APPOINTMENT
 OR WHO HAS NOT COMPLETED 1
 
    YEAR OF CURRENT CONTINUOUS EMPLOYMENT UNDER OTHER THAN A TEMPORARY
 APPOINTMENT LIMITED TO 1
 
    YEAR OR LESS, OR
 
    (3) THE REDUCTION IN GRADE OR REMOVAL OF AN EMPLOYEE IN THE EXCEPTED
 SERVICE WHO HAS NOT
 
    COMPLETED 1 YEAR OF CURRENT CONTINUOUS EMPLOYMENT IN THE SAME OR
 SIMILAR POSITIONS.
 
    AGENCY STATEMENT OF POSITION AT 3.
 
    /6/ IN SO DECIDING THAT SUBSECTION 4 IS WITHIN THE DUTY TO BARGAIN,
 THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THAT PART OF THE
 PROPOSAL.
 
    /7/ CF.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 1603 AND NAVY EXCHANGE, NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, 3
 FLRA NO. 1(1980) AT 2-3 OF THE DECISION;  INTERNATIONAL ASSOCIATION OF
 FIRE FIGHTERS, LOCAL F-61 AND PHILADELPHIA NAVAL SHIPYARD, 3 FLRA NO.
 66(1980) AT 13 OF THE DECISION.
 
    /8/ AGENCY STATEMENT OF POSITION AT 8-9.
 
    /9/ SECTION 7121(E)(1) OF THE STATUTE (5 U.S.C. 7121(E)(1)) PROVIDES
 AS FOLLOWS:
 
    SEC. 7121.  GRIEVANCE PROCEDURES
 
   *          *          *          *
 
 
    (E)(1) MATTERS COVERED UNDER SECTIONS 4303 AND 7512 OF THIS TITLE
 WHICH ALSO FALL WITHIN
 
    THE COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE MAY, IN THE
 DISCRETION OF THE AGGRIEVED
 
    EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE PROCEDURES OF SECTION
 7701 OF THIS TITLE OR
 
    UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT NOT BOTH.  SIMILAR
 MATTERS WHICH ARISE UNDER
 
    OTHER PERSONNEL SYSTEMS APPLICABLE TO EMPLOYEES COVERED BY THIS
 CHAPTER MAY, IN THE DISCRETION
 
    OF THE AGGRIEVED EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE
 PROCEDURES, IF ANY, APPLICABLE
 
    TO THOSE MATTERS, OR UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT
 NOT BOTH.  AN EMPLOYEE
 
    SHALL BE DEEMED TO HAVE EXERCISED HIS OPTION UNDER THIS SUBSECTION TO
 RAISE A MATTER EITHER
 
    UNDER THE APPLICABLE APPELLATE PROCEDURES OR UNDER THE NEGOTIATED
 GRIEVANCE PROCEDURE AT SUCH
 
    TIME AS THE EMPLOYEE TIMELY FILES A NOTICE OF APPEAL UNDER THE
 APPLICABLE APPELLATE PROCEDURES
 
    OR TIMELY FILES A GRIEVANCE IN WRITING IN ACCORDANCE WITH THE
 PROVISIONS OF THE
 
    PARTIES' NEGOTIATED GRIEVANCE PROCEDURE, WHICHEVER EVENT OCCURS
 FIRST.
 
    /10/ SECTION 7121(E)(2) OF THE STATUTE (5 U.S.C. 7121(E)(2)) PROVIDES
 AS FOLLOWS:
 
    SEC. 7121.  GRIEVANCE PROCEDURES
 
   *          *          *          *
 
 
    (E)(2) IN MATTERS COVERED UNDER SECTIONS 4303 AND 7512 OF THIS TITLE
 WHICH HAVE BEEN RAISED
 
    UNDER THE NEGOTIATED GRIEVANCE PROCEDURE IN ACCORDANCE WITH THIS
 SECTION, AN ARBITRATOR SHALL
 
    BE GOVERNED BY SECTION 7701(C)(1) OF THIS TITLE, AS APPLICABLE.
 
    /11/ 5 U.S.C. 7701(C)(1) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 7701.  APPELLATE PROCEDURES
 
   *          *          *          *
 
 
    (C)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DECISION OF
 THE AGENCY SHALL BE
 
    SUSTAINED UNDER SUBSECTION (B) ONLY IF THE AGENCY'S DECISION--
 
    (A) IN THE CASE OF AN ACTION BASED ON UNAC