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

 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 THE CONDITIONS OF
 EMPLOYMENT OF EMPLOYEES IN AN
 
    APPROPRIATE UNIT.  CONSEQUENTLY, THE AGENCY HAS NO OBLIGATION TO
 BARGAIN OVER MATTERS RELATING
 
    TO THE NON-BARGAINING UNIT POSITIONS REFERRED TO IN THE PROPOSAL.
 THUS, AS THE PROPOSAL GOES
 
    BEYOND THE REPRESENTATION RIGHTS OF THE EXCLUSIVE REPRESENTATIVE AND
 DOES NOT DIRECTLY RELATE
 
    TO CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES, IT IS OUTSIDE THE DUTY
 TO BARGAIN UNDER THE
 
    STATUTE.
 
    THE PROPOSAL IN THE INSTANT CASE SIMILARLY DOES NOT DIRECTLY RELATE
 TO CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES.  RATHER, IT RELATES TO
 THE ASSESSMENT AND TRAINING OF SUPERVISORS.  CONSEQUENTLY, FOR THE
 REASONS STATED IN MORE DETAIL IN THE DEPARTMENT OF LABOR CASE CITED
 ABOVE, THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN UNDER THE
 STATUTE.  ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THE DISPUTED
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN MUST BE SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., JUNE 27, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7117(A)(1) OF THE STATUE PROVIDES:
 
    SECTION 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY
 TO CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION ONLY IF THE RULE
 
    OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
 REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
 7103(A)(12)AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
 STATUTE:
 
    SECTION 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   .          .          .          .
 
 
    (12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD-FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT AFFECTING SUCH
 
    EMPLOYEES . . . .
 
   .          .          .          .
 
 
    (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES
 AND MATTERS, WHETHER
 
    ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
 CONDITIONS . . . .