American Federation of Government Employees, AFL-CIO , National Council of CSA Locals (Union) and Community Services Administration (Agency) 

 5 FLRA No. 98
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, NATIONAL COUNCIL
 OF CSA LOCALS
 Union
 
 and
 
 COMMUNITY SERVICES
 ADMINISTRATION
 Agency
 
                                            Case No. 0-NG-90
 
                 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. 7101-7135).
 
                              UNION PROPOSAL
 
    ARTICLE 9, SECTION 9
 
    IN ANY CASE IN WHICH THERE IS DISAGREEMENT OVER A PERFORMANCE
 STANDARD, THE STANDARD
 
    PROPOSED BY MANAGEMENT WILL BE USED, SUBJECT TO CHALLENGE THROUGH THE
 GRIEVANCE PROCEDURE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS
 INCONSISTENT WITH SECTION 7106 OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSAL IS INCONSISTENT WITH
 SECTION 7106(A) OF THE STATUTE.  /1/ ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS
 AMENDED BY F.R. 48575), IT IS ORDERED THAT THE PETITION FOR REVIEW OF
 THE DISPUTED PROPOSAL BE DISMISSED.  /2/
 
    REASONS:  THE PLAIN LANGUAGE OF THE UNION'S PROPOSAL PROVIDES THAT
 THE ESTABLISHMENT OF PERFORMANCE STANDARDS BY THE AGENCY IS SUBJECT TO
 CHALLENGE THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE.  THUS, THE
 DISPUTED PROPOSAL HEREIN BEARS NO MATERIAL DIFFERENCE FROM PORTIONS OF
 THE UNION PROPOSAL WHICH WAS BEFORE THE AUTHORITY IN AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1968 AND DEPARTMENT OF
 TRANSPORTATION, SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION, MASSENA,
 NEW YORK, 5 FLRA NO. 14(1981) AND HELD TO BE OUTSIDE THE DUTY TO BARGAIN
 UNDER SECTION 7106 OF THE STATUTE.  /3/ IN THAT CASE, THE AUTHORITY
 DETERMINED THAT SUBSECTIONS 1 AND 2 OF THE UNION'S PROPOSAL, SEE NOTE 3,
 BY PROVIDING FOR ARBITRAL REVIEW OF AGENCY MANAGEMENT'S IDENTIFICATION
 OF CRITICAL ELEMENTS AND ESTABLISHMENT OF PERFORMANCE STANDARDS PURSUANT
 TO THE AGENCY'S STATUTORY RIGHTS UNDER SECTION 7106, DIRECTLY INFRINGED
 UPON THOSE RIGHTS IN VIOLATION OF SECTION 7106 AND, THUS, WERE OUTSIDE
 THE DUTY TO BARGAIN.  IN THIS REGARD, THE AUTHORITY STATED (AT 9-11 OF
 THE DECISION) AS FOLLOWS:
 
    CONSISTENT WITH THE LANGUAGE AND THE LEGISLATIVE HISTORY OF THE
 STATUTE, THE AUTHORITY HAD
 
    HELD THAT THE SCOPE OF A NEGOTIATED GRIEVANCE PROCEDURE SHALL EXTENT
 TO ALL MATTERS WHICH
 
    UNDER PROVISIONS OF LAW COULD BE COVERED UNLESS THE PARTIES NEGOTIATE
 THE EXCLUSION OF SUCH
 
    MATTERS.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 3669 AND VETERANS
 
    ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 3 FLRA NO.
 48(1980);  AMERICAN
 
    FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 547, AFL-CIO AND VETERANS
 ADMINISTRATION MEDICAL
 
    CENTER, TAMPA, FLORIDA, 4 FLRA NO. 50(1980).  IN THIS REGARD, THE
 AUTHORITY DECIDED IN
 
    NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
 BUREAU OF THE PUBLIC DEBT, 3
 
    FLRA NO. 119(1980), THAT THE IDENTIFICATION OF THE CRITICAL ELEMENTS
 OF A POSITION AND THE
 
    ESTABLISHMENT OF PERFORMANCE STANDARDS CONSTITUTE AN EXERCISE OF THE
 RIGHTS OF AGENCY
 
    MANAGEMENT TO DIRECT ITS EMPLOYEES AND TO ASSIGN WORK UNDER SECTION
 7106 OF THE
 
    STATUTE.  THEREFORE, AS TO UNION PROPOSAL 4, THE QUESTION PRESENTED
 IS WHETHER, IN EXTENDING
 
    THE COVERAGE OF THE GRIEVANCE PROCEDURE TO THE AGENCY' EXERCISE OF
 ITS AUTHORITY TO IDENTIFY
 
    THE CRITICAL ELEMENTS OF A POSITION (SUBSECTION 1), TO ESTABLISH
 PERFORMANCE STANDARDS
 
    (SUBSECTION 2), AND TO ANY ACTION TAKEN AS A RESULT OF A PERFORMANCE
 APPRAISAL (SUBSECTION 4),
 
    THE PROPOSAL VIOLATES SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE
 AND THUS IS OUTSIDE THE
 
    DUTY TO BARGAIN.
 
   .          .          .          .
 
 
    THE PLAIN LANGUAGE OF SECTION 7106 PROVIDES THAT "NOTHING" IN THE
 STATUTE, I.E., 5
 
    U.S.C. 7101 ET SEQ., SHALL "AFFECT THE AUTHORITY" OF AN AGENCY TO
 EXERCISE THE RIGHTS
 
    ENUMERATED THEREIN.  THEREFORE, NO GRIEVANCE PROCEDURE COULD BE
 NEGOTIATED PURSUANT TO SECTION
 
    7121 OF THE STATUTE WHICH WOULD DENY THE AUTHORITY OF AN AGENCY TO
 EXERCISE ITS STATUTORY
 
    RIGHTS UNDER SECTION 7106.  SECTION 7106 ALSO PROVIDES THAT THE
 RIGHTS OF AGENCY MANAGEMENT
 
    SET FORTH THEREIN ARE SUBJECT TO THE PROVISIONS OF SECTION 7106(B),
 I.E., SECTION 7106(B)(2)
 
    AND (3).  HOWEVER, SUBSECTIONS 1 AND 2 OF UNION PROPOSAL 4 ARE NOT
 CONCERNED IN ANY MANNER
 
    WITH PROCEDURES LEADING UP TO OR APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED BY
 
    THE EXERCISE OF AGENCY MANAGEMENT'S RIGHT TO IDENTIFY CRITICAL
 ELEMENTS AND TO ESTABLISH
 
    PERFORMANCE STANDARDS. THUS, THE PROVISIONS OF SECTION 7106(B)(2) AND
 (3) ARE NOT APPLICABLE
 
    TO THE DISPOSITION OF SUBSECTIONS 1 AND 2 OF THE PROPOSAL.
 
    MORE PARTICULARLY, SUBSECTIONS 1 AND 2 OF UNION PROPOSAL 4, BY
 PROVIDING FOR GRIEVANCES
 
    WHICH CHALLENGE THE AGENCY'S IDENTIFICATION OF THE CRITICAL ELEMENTS
 OF A POSITION AND
 
    ESTABLISHMENT OF PERFORMANCE STANDARDS, WOULD PERMIT NEGOTIATED
 GRIEVANCE PROCEDURES TO EXTEND
 
    TO THE AGENCY'S EXERCISE OF ITS RIGHTS TO DIRECT EMPLOYEES AND TO
 ASSIGN WORK UNDER SECTION
 
    7106(A)(2)(A) AND (B).  THESE SUBSECTIONS OF THE PROPOSAL THEREBY
 WOULD SUBJECT THE AGENCY'S
 
    EXERCISE OF THESE RESERVED RIGHTS TO ARBITRAL REVIEW AND THEREFORE TO
 THE POSSIBILITY OF
 
    ARBITRATORS SUBSTITUTING THEIR JUDGMENT FOR THAT OF THE AGENCY WITH
 RESPECT TO THOSE STATUTORY
 
    RIGHTS. THAT IS, SUBSECTIONS 1 AND 2 WOULD, IN EFFECT, PERMIT
 ARBITRATORS TO OVERTURN THE
 
    AGENCY'S IDENTIFICATION OF CRITICAL ELEMENTS AND ESTABLISHMENT OF
 PERFORMANCE STANDARDS AND TO
 
    RENDER AWARDS WHICH WOULD REQUIRE THE AGENCY TO USE DIFFERENT
 CRITICAL ELEMENTS OR SET
 
    DIFFERENT STANDARDS, CONTRARY TO THE AGENCY'S RIGHTS UNDER THE
 STATUTE. THUS, BY PROVIDING FOR
 
    ARBITRAL REVIEW OF AGENCY MANAGEMENT'S IDENTIFICATION OF CRITICAL
 ELEMENTS AND ESTABLISHMENT
 
    OF PERFORMANCE STANDARDS PURSUANT TO ITS STATUTORY RIGHTS UNDER
 SECTION 7106, THE PROPOSED
 
    SUBSECTIONS 1 AND 2 VIOLATE SECTION 7106 AND ARE OUTSIDE THE DUTY TO
 BARGAIN.  THEREFORE, FOR THE REASONS SET FORTH IN SAINT LAWRENCE SEAWAY
 DEVELOPMENT CORPORATION, SUPRA, THE PROPOSAL HERE IN DISPUTE MUST ALSO
 BE HELD TO BE INCONSISTENT WITH SECTION 7106 OF THE STATUTE.
 
    TURNING TO THE SPECIFIC CONTENTION OF THE UNION IN THE INSTANT CASE,
 WHICH WAS NOT RAISED BY THE PARTIES OR ADDRESSED BY THE AUTHORITY IN
 SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION, FOR THE FOLLOWING
 REASONS
 THE AUTHORITY FINDS THAT THIS CONTENTION PROVIDES NO BASIS FOR CHANGING
 THE RESULT HEREIN.  THE UNION ARGUES GENERALLY THAT SECTION 7106(A) OF
 THE STATUTE IS NOT INTENDED TO PRECLUDE BARGAINING ON UNION PROPOSALS
 WHICH RELATE TO THE EXERCISE OF THE MANAGEMENT RIGHTS ENUMERATED THEREIN
 BUT, INSTEAD, IS INTENDED TO APPLY ONLY AS A DEFENSE TO A REMEDIAL ORDER
 WITH RESPECT TO A CHALLENGED AGENCY ACTION.  THUS, THE UNION CONCLUDES,
 SECTION 7106(A) PROVIDES NO BASIS ON WHICH TO FIND THE DISPUTED PROPOSAL
 OUTSIDE THE AGENCY'S DUTY TO BARGAIN.
 
    ANALYSIS OF THE LANGUAGE AND THE LEGISLATIVE HISTORY OF THE STATUTE
 DOES NOT SUPPORT THE POSITION OF THE UNION.  IN THIS REGARD, BY
 CONSTRUING SECTION 7106(A) OF THE STATUTE AS A LIMITATION ON BARGAINING
 ORDERS AND ARBITRATION AWARDS WHICH CAN BE ISSUED AGAINST AN AGENCY,
 RATHER THAN AS A LIMITATION ON THE SCOPE OF BARGAINING, THE UNION HAS
 MISINTERPRETED SECTION 7106(A).  THE PLAIN LANGUAGE OF SECTION 7106
 PROVIDES THAT SUBJECT TO SUBSECTION (B), NOTHING IN THE STATUTE SHALL
 AFFECT THE AUTHORITY OF AGENCY MANAGEMENT TO EXERCISE THE RIGHTS SET
 FORTH THEREIN.  /4/ CLEARLY, THAT PROHIBITION EXTENDS TO AN AGENCY'S
 DUTY TO BARGAIN UNDER THE STATUTE AND PRECLUDES BARGAINING OVER THE
 EXERCISE OF THE STATED MANAGEMENT RIGHTS, EXCEPT TO THE EXTENT PROVIDED
 IN SUBSECTION (B) WITH RESPECT TO PROCEDURES LEADING UP TO, OR
 APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY, THE
 EXERCISE OF SUCH RIGHTS.  THUS, THE PLAIN LANGUAGE OF THE STATUTE IS
 CONTRARY TO THE UNION'S POSITION.
 
    MOREOVER, IT IS CLEAR CONGRESS INTENDED THAT THERE WERE TO BE
 "CERTAIN MATTERS ON WHICH THE PARTIES MAY NOT NEGOTIATE UNDER ANY
 CIRCUMSTANCES . . ." /5/ IN THIS REGARD ALSO, DURING THE DEBATE ON THE
 "UDALL SUBSTITUTE", WHICH, IN RELEVANT PART, ULTIMATELY WAS ENACTED INTO
 LAW AS THE STATUTE, MAJOR PROPONENTS OF THAT BILL STATED THEIR INTENT
 THAT SECTION 7106 SERVE TO LIMIT THE SUBJECTS ON WHICH AN AGENCY CAN BE
 REQUIRED TO BARGAIN.  /6/ THUS, THERE IS NO EVIDENCE IN THE LANGUAGE OR
 LEGISLATIVE HISTORY OF THE STATUTE OF ANY INTENT THAT THE MANAGEMENT
 RIGHTS PROVISIONS ARE ONLY A DEFENSE TO BE RAISED WHEN AN AGENCY IS
 SUBJECT TO AN ORDER REQUIRING ACTION IN CONTRAVENTION OF ITS STATUTORY
 RIGHTS.  ON THE CONTRARY, THE EVIDENCE INDICATES THAT THE MANAGEMENT
 RIGHTS PROVISIONS CONSTITUTE A LIMITATION ON BARGAINING.  /7/
 
    THEREFORE, THIS CONTENTION OF THE UNION DOES NOT REQUIRE A DIFFERENT
 RESULT IN THE PRESENT CASE FROM THAT REACHED IN SAINT LAWRENCE SEAWAY
 DEVELOPMENT CORPORATION.  ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE
 DISPUTED PROPOSAL HEREIN, FOR THE REASONS STATED MORE FULLY IN SAINT
 LAWRENCE SEAWAY DEVELOPMENT CORPORATION, IS NOT WITHIN THE AGENCY'S DUTY
 TO BARGAIN UNDER THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., MAY 29, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7106 OF THE STATUTE (5 U.S.C. 7106) PROVIDES, IN PART, AS
 FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B)OF THIS SECTION, NOTHING IN THIS CHAPTER
 SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAW--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES;
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED(.)
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   .          .          .          .
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION;  OR
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY
 
    AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
 
    /2/ IN REACHING THE DECISION HEREIN, THE AUTHORITY DOES NOT PASS UPON
 THE AGENCY'S CONTENTIONS REGARDING ALLEGED PROCEDURAL DEFICIENCIES IN
 THE UNION'S APPEAL.
 
    /3/ THE DISPUTED PROPOSAL IN SAINT LAWRENCE SEAWAY DEVELOPMENT
 CORPORATION PROVIDED AS FOLLOWS:
 
    SECTION 6.  ANY DISPUTES UNDER THIS ARTICLE MAY BE RESOLVED UNDER THE
 NEGOTIATED GRIEVANCE PROCEDURE INCLUDING BUT NOT LIMITED TO:
 
    1.  CHALLENGES TO CRITICAL ELEMENTS OF POSITION.
 
    2.  THE MEASURE OF PERFORMANCE AS SET FORTH IN PERFORMANCE STANDARDS.
 
    3.  THE PERFORMANCE APPRAISAL ITSELF.
 
    4.  ANY DISPUTED ACTION TAKEN AS A RESULT OF A PERFORMANCE APPRAISAL
 WILL BE TREATED AS ANY OTHER DISCIPLINARY MATTER.
 
    /4/ SEE, SUPRA, NOTE 1.
 
    /5/ JOINT EXPLANATORY STATEMENT OF THE COMMITTEE ON CONFERENCE, S.
 REP. NO. 95-1272, 95TH CONG., 2ND SESS. 153 (1978).
 
    /6/ SEE, E.G., THE STATEMENT OF CONGRESSMAN CLAY OF MISSOURI, 124
 CONG. REC. H9637-38 (DAILY ED., SEPT. 13, 1978) AND THE STATEMENT OF
 CONGRESSMAN FORD OF MICHIGAN, 124 CONG. REC. H9648-49 (DAILY ED., SEPT.
 13, 1978).
 
    /7/ AS A PRACTICAL MATTER, THE UNION POSITION HEREIN AND THE HOLDING
 IN THE INSTANT CASE ARE CONSISTENT SINCE THE UNION EXPLICITLY CONCEDES
 THAT TO REQUIRE BARGAINING OVER UNENFORCEABLE CONTRACT TERMS SERVES NO
 USEFUL PURPOSE.  UNION RESPONSE AT 35-36.