American Federation of Government Employees, Local 3656 (Union) and Federal Trade Commission, Boston Regional Office, Massachusetts (Agency)  

 4 FLRA No. 92
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3656
 Union
 
 and
 
 FEDERAL TRADE COMMISSION, BOSTON
 REGIONAL OFFICE, MASSACHUSETTS
 Agency
 
                                            Case No. 0-NG-273
 
                 DECISION AND ORDER 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 (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                              UNION PROPOSAL
 
    ARTICLE 9
 
    SECTION 1.  THE EMPLOYER AGREES TO DEVELOP REASONABLE PERFORMANCE
 STANDARDS FOR UNIT  EMPLOYEES.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE
 AGENCY'S DUTY TO BARGAIN OR, AS ALLEGED BY THE AGENCY, THE PROPOSAL
 WOULD VIOLATE SECTION 7106 OF THE STATUTE OR AGENCY REGULATIONS FOR
 WHICH A COMPELLING NEED EXISTS.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSAL DOES NOT VIOLATE SECTION
 7106 OF THE STATUTE OR AGENCY REGULATIONS.  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 ON THIS
 PROPOSAL.  /1/
 
    REASONS:  THE PROPOSAL HERE IN DISPUTE, WHICH WOULD REQUIRE THE
 AGENCY TO DEVELOP "REASONABLE" PERFORMANCE STANDARDS FOR UNIT EMPLOYEES,
 BEARS NO MATERIAL DIFFERENCE FROM THE UNION PROPOSAL WHICH WAS BEFORE
 THE AUTHORITY IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA
 NO. 120 (1980) AND HELD TO BE WITHIN THE DUTY TO BARGAIN UNDER THE
 STATUTE.  IN THAT CASE, THE AUTHORITY DETERMINED THAT THE UNION'S
 PROPOSAL, WHICH REQUIRED THAT PERFORMANCE STANDARDS BE "FAIR AND
 EQUITABLE," DID NOT VIOLATE MANAGEMENT'S RIGHTS UNDER SECTION 7106 AND
 WAS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE.
 THEREFORE, BASED ON THE REASONS SET FORTH IN GREATER DETAIL IN AFGE,
 LOCAL 32, THE PROPOSAL HERE IN DISPUTE MUST ALSO BE HELD NOT TO VIOLATE
 SECTION 7106 OF THE STATUTE.
 
    IN ADDITION, THE AGENCY IN THE PRESENT CASE CONTENDS THAT IT HAS NO
 DUTY TO BARGAIN ON THE DISPUTED PROPOSAL BECAUSE PERFORMANCE STANDARDS
 "ARE BEING PRESCRIBED" ON AN AGENCY-WIDE BASIS.  IN THAT RESPECT, THE
 AGENCY MAKES TWO ARGUMENTS.  IN ESSENCE, THE AGENCY FIRST ARGUES THAT IT
 IS INAPPROPRIATE FOR NEGOTIATIONS TO PROCEED AT THE LOCAL LEVEL SINCE IT
 INTENDS TO RETAIN AUTHORITY OVER SUCH MATTERS AT THE AGENCY LEVEL.
 ASSUMING, AS THE AGENCY STATES, THAT AUTHORITY TO NEGOTIATE OVER SUCH
 MATTERS WILL BE EXERCISED ONLY AT THE AGENCY LEVEL AND NOT AT THE LEVEL
 OF THE BARGAINING UNIT HERE INVOLVED, THE AGENCY'S ALLEGATION DOES NOT
 RELATE TO THE BASES FOR FINDING THAT A PROPOSAL IS NOT WITHIN THE DUTY
 TO BARGAIN UNDER SECTION 7117 OF THE STATUTE, I.E., INCONSISTENCY WITH
 FEDERAL LAW, GOVERNMENT-WIDE RULE OR REGULATION, OR AGENCY REGULATION
 FOR WHICH A COMPELLING NEED EXISTS.  RATHER, UNDER SECTION 7114(B)(2) OF
 THE STATUTE, THE DUTY OF AN AGENCY TO NEGOTIATE IN GOOD FAITH INCLUDES
 THE OBLIGATION "TO BE REPRESENTED AT THE NEGOTIATIONS BY DULY AUTHORIZED
 REPRESENTATIVES PREPARED TO DISCUSS AND NEGOTIATE ON ANY CONDITION OF
 EMPLOYMENT." THUS, THE STATUTE CLEARLY REQUIRES THE PARTIES TO PROVIDE
 REPRESENTATIVES WHO ARE EMPOWERED TO NEGOTIATE AND ENTER INTO
 AGREEMENTS
 ON ALL MATTERS WITHIN THE SCOPE OF NEGOTIATIONS IN THE BARGAINING UNIT.
 ACCORDINGLY, THE AGENCY'S CONTENTION TO THE CONTRARY MUST BE SET ASIDE.
 
    THE AGENCY'S SECOND ARGUMENT IS THAT A COMPELLING NEED EXISTS FOR ANY
 "AGENCY-WIDE DETERMINATION" UNLESS THE AUTHORITY DETERMINES TO THE
 CONTRARY.  UNDER SECTION 2424.11 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.11), HOWEVER, IT IS CLEAR THAT THE BURDEN IS
 PLACED UPON AN AGENCY TO DEMONSTRATE THAT A COMPELLING NEED EXISTS FOR
 AN AGENCY RULE OR REGULATION TO BAR NEGOTIATIONS ON A CONFLICTING
 BARGAINING PROPOSAL.  IN THE PRESENT CASE, THE AGENCY HAS NOT ADVERTED
 TO A PARTICULAR AGENCY REGULATION WITH WHICH THE PROPOSAL CONFLICTS.
 THUS, SINCE THE AGENCY HAS NOT SUPPORTED A FINDING THAT A COMPELLING
 NEED EXISTS FOR AGENCY REGULATIONS TO BAR NEGOTIATIONS ON THE DISPUTED
 PROPOSAL, THE AGENCY'S ARGUMENT CANNOT BE SUSTAINED.
 
    FOR THE FOREGOING REASONS, THE PROPOSAL IN QUESTION MUST BE HELD TO
 BE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 24, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE PROPOSAL.