28 FLRA NO. 126


ASSOCIATION OF CIVILIAN TECHNICIANS,
COLUMBINE COUNCIL

                    Union

      and

THE ADJUTANT GENERAL, COLORADO

                    Agency

Case No. 0-NG-1408

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(B) of the Federal Service Labor - Management Relations Statute (the Statute). The appeal concerns the negotiability of a single Union proposal, which we find is outside the duty to bargain because it conflicts with the Agency's rights to direct employees and assign work.

II. Union Proposal

A Title 32 employee who is not satisfied with the appraisal may appeal to the State Impartial Review Board appointed by the Adjutant General. On this board, which shall consist of three (3) members, the Union shall be allowed one (1) member. This will only be allowed when the appeal concerns a bargaining unit member. This member shall be selected by the Union. approved and appointed along with the other two (2) members by the Adjutant General, and shall have the same responsibilities as the other members. . . . The union official that is sitting on the Board shall not be the employee's representative. (Only the underscored language is in dispute.) 

III. Positions of the Parties

The Agency argues that the underscored language of this proposal, which requires that a union representative shall be a member of the state impartial review board, is substantively identical to the requirement of Proposal 5 in National Association of Government Employees, SEIU, AFL - CIO and National Guard Bureau, Adjutant General, 26 FLRA No. 62 (1987) (SEIU), which we held nonnegotiable as being inconsistent with sec