18:0320(42)NG - NLRBU and NLRB, Office of the General Counsel -- 1985 FLRAdec NG

 18 FLRA No. 42
 
 NATIONAL LABOR RELATIONS BOARD 
 UNION 
 Union 
 
 and 
 
 NATIONAL LABOR RELATIONS BOARD, 
 OFFICE OF THE GENERAL COUNSEL 
 Agency
 
                                            Case No. 0-NG-781
                                            15 FLRA No. 12
 
                       DECISION AND ORDER ON REMAND
 
    On December 11, 1984, the United States Court of Appeals for the
 District of Columbia Circuit granted the Authority's request that this
 case be remanded to the Authority /1/ for further consideration of its
 negotiability determination with respect to the following proposal:
 
                              Union Proposal
 
          No employee shall be reduced in grade as a result of a
       performance-based adverse action unless such employee has first
       been reassigned to an available noncompetitive position for which
       the employee is qualified and could reasonably be expected to
       demonstrate acceptable performance. No employee shall be removed
       from employment as a result of a performance-based adverse action
       unless such employee has first, where applicable, been reduced in
       grade as a result of his/her performance to a grade level the
       employee could reasonably be expected to demonstrate acceptable
       performance.  Further, no employee will be removed from employment
       if a position exists for which the employee is qualified and could
       reasonably be expected to demonstrate acceptable performance.
 
    The Authority had held the proposal to be nonnegotiable, finding, in
 reliance upon its earlier decision in American Federation of Government
 Employees, Local 1760 and Department of Health and Human Services,
 Social Security Administration, Northeast Program Service Center, 9 FLRA
 1025 (1982), that the proposal improperly would place a condition, i.e.,
 reassignment to a new position, upon the agency's right to reduce in
 grade or pay or remove an employee pursuant to section 7106(a)(2)(A) of
 the Statute.  /2/ National Labor Relations Board Union and National
 Labor Relations Board, Office of the General Counsel, 15 FLRA No. 12
 (1984).
 
    The case is now back before the Authority to consider arguments,
 which it did not rule on in reaching its original decision, concerning
 whether the Union's proposal constitutes a negotiable procedure and/or
 an appropriate arrangement within the meaning of section 7106(b)(2) and
 (3) of the Statute.  /3/
 
    In this connection, the Union argues that the proposal at issue
 herein constitutes both a section 7106(b)(2) procedure management will
 follow in exercising its statutory rights to appraise and effect
 remedial discipline and a section 7106(b)(3) appropriate arrangement for
 employees adversely affected by the exercise of those rights.
 Specifically, the Union states that the proposal would become operative
 only after management appraised an employee pursuant to the provisions
 of chapter 43 of title 5 and concluded that remedial action was
 warranted.  Then, according to the Union, the proposal would merely
 prescribe the procedures which management must apply to determine which
 remedial action was appropriate under the circumstances or, in other
 words, to consider limiting the severity of the remedial action to what
 would be commensurate with the employee's performance deficiencies.
 Thus, according to the Union, the proposal only would require the Agency
 "to consider less severe discipline before more severe;  and, absent
 good reasons ('good cause'), the Agency would be expected to opt for the
 lesser of the discipline options." /4/
 
    We turn first to the question of whether the disputed proposal in
 this case is properly a "procedure" within the meaning of section
 7106(b)(2) of the Statute, so that it would be negotiable unless its
 adoption would prevent management from acting at all;  /5/ or, whether
 implementation of the proposal would "directly interfere with the
 agency's basic right . . . (reserved) under section 7106(a) . . . ." /6/
 In this respect, the Union's position that the proposal constitutes a
 procedure is unpersuasive in that it is at odds with the plain language
 of the proposal.  /7/ Specifically, the express language of the
 proposal, despite being expressed in terms which arguably are
 procedural, is so prescriptive as to directly interfere with
 management's rights to make decisions of substance.  The proposal does
 not, as the Union claims, obligate the Agency merely to consider
 reassigning an employee before terminating or demoting that employee for
 unacceptable performance.  Rather, this proposal would require in all
 instances, without regard to an individual's particular performance
 deficiencies which resulted in the proposed termination or demotion
 action, that the Agency refrain from demoting or terminating an employee
 for unacceptable performance until it first assigned that employee to
 work in a different noncompetitive position which is available and for
 which the employee is qualified and reasonably expected to perform
 acceptably.  Furthermore, there is nothing in the express language of
 the proposal which indicates that if an available position has been
 identified for which the employee is qualified and could be expected to
 perform acceptably, the Agency could decide not to fill such position.
 Thus, in these circumstances, adoption of this proposal would result in
 the Agency's being obligated to reassign the employee in question or
 rescind the proposed demotion or termination action altogether.
 
    Clearly, therefore, as this proposal would expressly place a
 substantive restriction on management's discretion to decide to remove
 or reduce employees in grade or pay pursuant to section 7106(a)(2)(A) of
 the Statute (which restriction itself involves the exercise of
 management's right to assign employees pursuant to section 7106(a)(2)(A)
 of the Statute) the proposal directly interferes with that management
 right and does not constitute a procedure within the meaning of section
 7106(b)(2) of the Statute.  Hence, the proposal is not within the duty
 to bargain under section 7106(b)(2).
 
    The Authority now turns to the question of whether the disputed
 proposal constitutes an "appropriate arrangement" within the meaning of
 section 7106(b)(3) of the Statute.  In this respect and as previously
 noted herein, this case was remanded to the Authority by the U.S. Court
 of Appeals for the D.C. Circuit.  That Court has held that a union
 proposal which directly interferes with the exercise of management
 rights reserved under section 7106(a) of the Statute may, nonetheless,
 constitute a negotiable appropriate arrangement within the meaning of
 section 7106(b)(3) so long as the proposal does not "impinge upon
 management's prerogatives to an excessive degree." /8/ The Authority
 applied that Court's "excessive degree" rationale upon remand and
 direction of the Court in American Federation of Government Employees,
 AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census,
 Washington, D.C., 14 FLRA 801 (1984), motion for reconsideration granted
 on other grounds (June 22, 1984).  There the Authority ascertained that
 a union proposal which expressly required selection of an employee who
 had previously been demoted through no fault of his or her own for the
 first vacancy for which he or she "fully meets the qualification
 standards" and which the agency "determines to fill" would constitute an
 appropriate arrangement within the meaning of section 7106(b)(3) of the
 Statute.  In that case the Authority found that the proposed appropriate
 arrangement would protect the needs of employees whom management had
 previously demoted through no fault of their own by ameliorating the
 adverse effects of management's exercise of its prerogatives.  At the
 same time, however, the Authority found the proposed arrangement would
 protect the needs of management to determine qualifications requirements
 of positions, to decide whether to fill vacancies and, if so, which
 vacancies to fill and then to fill those vacancies only with fully
 qualified employees.  Thus, the Authority determined the proposed
 arrangement would not interfere with management's rights under section
 7106(a) to an "excessive degree" so as to be rendered "inappropriate"
 for negotiations under section 7106(b)(3) of the Statute.  /9/
 
    The circumstances of the instant case clearly are distinguishable
 from Bureau of the Census and require a different conclusion.  The
 instant proposal concerns employees whom management is proposing to
 demote or terminate because they are at "fault," i.e., they have
 demonstrated an inability or unwillingness to perform the duties of
 their positions at an acceptable level.  /10/ Further, unlike the
 proposal found to constitute an appropriate arrangement in Bureau of the
 Census, the proposal in the instant case does not expressly preserve the
 Agency's discretion to decide whether to fill a vacant position.  Hence,
 the Agency would be obligated under the literal language of the proposal
 to fill such a position by reassignment of an employee against whom the
 Agency had proposed a demotion or termination action.  Moreover, this
 proposal indiscriminately would require in every instance, without
 regard to the nature or extent of the performance deficiencies giving
 rise to a particular proposed demotion or termination action, that the
 Agency reassign before demoting and demote before terminating an
 employee.  Thus, notwithstanding the Union's contention that the
 proposal merely requires management to "consider" limiting the severity
 of the proposed action to that which is commensurate with an employee's
 performance deficiencies, the express language of the proposal does not
 in any manner purport to preserve management's discretion in this
 regard.  /11/ The proposed arrangement obviously would ameliorate the
 adverse effects on unacceptably performing employees of management's
 exercise of i