National Treasury Employees Union (Union) and Department of Health and Human Services, Region 10 (Agency)



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07:0727(115)NG
The decision of the Authority follows:


 7 FLRA No. 115
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, REGION 10
 Agency
 
                                            Case No. O-NG-299
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN 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),
 AND PRESENTS ISSUES CONCERNING THE NEGOTIABILITY OF FOUR PROPOSALS
 INVOLVING "UNACCEPTABLE PERFORMANCE PROCEDURES" (SET FORTH IN THE
 APPENDIX) AND ONE PROPOSAL WITH RESPECT TO "EQUAL EMPLOYMENT
 OPPORTUNITY." UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING
 THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATIONS.
 
    BASED UPON THE RECORD, PROPOSAL 1 WOULD OBLIGATE MANAGEMENT TO
 NEGOTIATE CRITICAL ELEMENTS;  PROPOSAL 2 WOULD SET STANDARDS FOR
 CRITICAL ELEMENTS;  PROPOSAL 3 WOULD, AS A CONDITION PRECEDENT TO
 IMPLEMENTING CRITICAL ELEMENTS, REQUIRE MANAGEMENT TO ESTABLISH THAT ALL
 CRITICAL ELEMENTS ARE IN FACT CRITICAL TO THE EMPLOYEE'S JOB;  AND
 PROPOSAL 4 WOULD GIVE THE UNION THE RIGHT TO REOPEN NEGOTIATIONS ON
 CRITICAL ELEMENTS ONE YEAR AFTER INITIAL IMPLEMENTATION.
 
    IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
 BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), APPEAL DOCKETED, NO.
 80-1895 (D.C. CIR. AUG. 4, 1980), THE AUTHORITY HELD THAT A PROPOSAL TO
 ESTABLISH A PARTICULAR CRITICAL ELEMENT AND PERFORMANCE STANDARD WOULD
 DIRECTLY INTERFERE WITH THE EXERCISE OF MANAGEMENT'S RIGHTS TO DIRECT
 EMPLOYEES AND TO ASSIGN WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF THE
 STATUTE, /1/ AND THEREFORE WAS NOT WITHIN THE DUTY TO BARGAIN.  SINCE
 ALL FOUR PROPOSALS IN THIS CASE WOULD LIKEWISE INTERFERE WITH THOSE
 MANAGEMENT RIGHTS, THEY BEAR NO DISPOSITIVE DIFFERENCE FROM THE PROPOSAL
 HELD NOT TO BE WITHIN THE DUTY TO BARGAIN IN THE BUREAU OF THE PUBLIC
 DEBT CASE.  THEREFORE, FOR THE REASONS FULLY SET FORTH IN BUREAU OF THE
 PUBLIC DEBT, PROPOSALS 1 THROUGH 4 MUST ALSO BE HELD NOT TO BE WITHIN
 THE DUTY TO BARGAIN.  SEE ALSO AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT,
 WASHINGTON, D.C., 3 FLRA NO. 120(1980), AT PAGES 4-5.
 
                             UNION PROPOSAL 5
 
    ARTICLE 38-- "EQUAL EMPLOYMENT OPPORTUNITY"
 
    B.  VACANCY ANNOUNCEMENTS FOR UPWARD MOBILITY POSITIONS WILL BE
 CIRCULATED WITHIN THE HEW
 
    REGION X REGIONAL OFFICE, WITH NO APPLICATIONS ACCEPTED FROM OUTSIDE
 THAT AREA OF
 
    CONSIDERATION.
 
    THIS PROPOSAL ON ITS FACE EXPRESSLY PROVIDES THAT MANAGEMENT COULD
 NOT ACCEPT ANY APPLICATIONS WITH RESPECT TO VACANT POSITIONS FROM ANY
 PERSON OUTSIDE THE AGENCY.  ACCORDINGLY, WHILE THE UNION ASSERTS THAT
 MANAGEMENT MERELY WOULD BE REQUIRED "TO INITIALLY CONSIDER ONLY THOSE
 EMPLOYEES WITHIN REGION S" BUT WOULD NOT BE HAMPERED IN ITS ABILITY TO
 MAKE A SELECTION IN FILLING ANY POSITION IT HAS DECIDED TO FILL, THE
 PROPOSAL CLEARLY WOULD PREVENT MANAGEMENT FROM CONSIDERING AND
 THEREFORE
 SELECTING FROM ANY APPROPRIATE SOURCE IN FILLING UPWARD MOBILITY
 POSITIONS.  THUS, THE DISPUTED PROPOSAL CONFLICTS WITH SECTION
 7106(A)(2)(C) OF THE STATUTE /2/ AND, HENCE, IS NOT WITHIN THE DUTY TO
 BARGAIN.  SEE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1451 AND
 NAVY EXCHANGE, NAVAL ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA, 3 FLRA
 NO. 60(1980) /3/
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981), IT IS ORDERED THAT THE UNION'S
 PETITION FOR REVIEW BY, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 22, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                            UNION PROPOSALS 1-4
 
    ARTICLE 19-- "UNACCEPTABLE PERFORMANCE PROCEDURES