Professional Air Traffic Controllers Organization (Union) and Federal Aviation Administration (Agency) 

 5 FLRA No. 101
 
 PROFESSIONAL AIR TRAFFIC
 CONTROLLERS ORGANIZATION
 Union
 
 and
 
 FEDERAL AVIATION ADMINISTRATION
 Agency
 
                                            Case No. 0-AR-100
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR JOSEPH M. STONE FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THIS GRIEVANCE AROSE WHEN THE AGENCY,
 THE FEDERAL AVIATION ADMINISTRATION (FAA), CHANGED ITS AVIATION SAFETY
 REPORTING PROGRAM (ASRP) WITHOUT NEGOTIATING THE CHANGES WITH THE UNION,
 THE PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO).  IN APRIL
 1975, THE FAA PUBLISHED A NOTICE IN THE FEDERAL REGISTER ESTABLISHING
 THE ASRP "TO STIMULATE THE FREE AND UNRESTRICTED FLOW OF INFORMATION
 CONCERNING DEFICIENCIES IN THE AVIATION SYSTEM . . . (AND) TO INSURE THE
 SAFEST POSSIBLE SYSTEM BY IDENTIFYING AND CORRECTING UNSAFE CONDITIONS
 BEFORE THEY LEAD TO ACCIDENTS." TO INSURE THIS UNRESTRICTED FLOW OF
 INFORMATION FROM PILOTS, AIR TRAFFIC CONTROLLERS, AND OTHERS UTILIZING
 THE AVIATION SYSTEM, THE ASRP PROVIDED THAT IF ANYONE INVOLVED IN A
 VIOLATION OF FEDERAL AVIATION REGULATIONS OR FAA DIRECTIVES COVERED BY
 THE PROGRAM FILED A TIMELY REPORT OF THE VIOLATION WITH THE FAA, THE
 ADMINISTRATOR WOULD WAIVE DISCIPLINARY ACTION.  HOWEVER, VIOLATIONS WITH
 RESPECT TO RECKLESS OPERATIONS, CRIMINAL OFFENSES, GROSS NEGLIGENCE,
 WILLFUL MISCONDUCT, OR ACCIDENTS WERE EXPRESSLY EXCLUDED FROM THE
 PROGRAM.  THE NOTICE FURTHER STATED THAT THE ASRP "WILL BE CONSTANTLY
 MONITORED TO DETERMINE ITS EFFECTIVENESS AND WILL BE CLARIFIED,
 MODIFIED, OR EXPANDED AS NECESSARY."
 
    IN JULY 1975, PATCO AND FAA ENTERED INTO A COLLECTIVE BARGAINING
 AGREEMENT WHICH PROVIDED THAT BARGAINING UNIT EMPLOYEES WOULD NOT BE
 SUBJECT TO DISCIPLINARY ACTION IF THE REQUIREMENTS OF THE ASRP AS
 PUBLISHED IN APRIL 1975 WERE MET. /1/ THIS PROVISION WAS KNOWN AS THE
 "IMMUNITY PROGRAM" AND WAS INCORPORATED INTO A SUBSEQUENT COLLECTIVE
 BARGAINING AGREEMENT BETWEEN THE PARTIES WHICH BECAME EFFECTIVE MARCH
 15, 1978, AND REQUIRED THE IMMUNITY FROM AND WAIVER OF THE RIGHT OF FAA
 TO TAKE DISCIPLINARY ACTION TO BE IN EFFECT FOR THREE YEARS.  IN 1979,
 THE FAA NOTIFIED PATCO THAT THE ASRP WOULD BE MODIFIED TO PROVIDE THAT
 THE FOLLOWING CATEGORIES OF INCIDENTS WOULD NOT BE COVERED BY THE ASRP:
 
    1.  SYSTEM ERRORS OCCURRING ON AIRPORT MOVEMENT AREAS.
 
    2.  A CONTROLLER PERMITTING A FLIGHT TO OPERATE INTO ANOTHER
 CONTROLLER'S ASSIGNED AIRSPACE
 
    WITHOUT PRIOR APPROVAL.
 
    3.  FAILURE TO MAINTAIN PERTINENT DATA, SUCH AS ALPHA NUMERIC AND
 FLIGHT DATA STRIP
 
    INFORMATION.
 
    4.  INCOMPLETE/IMPROPER POSITION RELIEF BRIEFING.  THE 1979
 MODIFICATIONS ALSO PROVIDED THAT IF VIOLATIONS OF LAW, FEDERAL AVIATION
 REGULATIONS, OR FAA POLICIES, PROCEDURES, OR ORDERS WERE FOUND, FAA
 WOULD NOT WAIVE DISCIPLINARY ACTION UNLESS CERTAIN SPECIFIC CONDITIONS
 HAD BEEN MET IN ADDITION TO FILING A REPORT UNDER THE ASRP.
 ADDITIONALLY, THE MODIFICATIONS PROVIDED THAT IF A VIOLATION OF FEDERAL
 AVIATION REGULATIONS CAME TO THE ATTENTION OF FAA FROM SOURCES OTHER
 THAN A REPORT FILED UNDER THE ASRP, APPROPRIATE ACTION WOULD BE TAKEN.
 IN RESPONSE TO THESE CHANGES, PATCO FILED A GRIEVANCE THAT WAS
 ULTIMATELY SUBMITTED TO ARBITRATION.  IN ITS GRIEVANCE PATCO ALLEGED
 THAT THE FAA VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT WHEN
 IT CHANGED THE "IMMUNITY PROGRAM" (ARTICLE 70) UNILATERALLY, AND PATCO
 ASKED THE ARBITRATOR TO RESTORE THE STATUS QUO ANTE.
 
    THE ARBITRATOR STATED THE ISSUE AS FOLLOWS:
 
    (E)VEN IF THE CHANGES WERE 100% CORRECT, THE QUESTION HERE TO BE
 DETERMINED IS WHETHER THEY
 
    WERE CONTRACTUALLY PROHIBITED UNDER ARTICLE 70 TO BE MADE
 UNILATERALLY WITHOUT NEGOTIATION
 
    WITH PATCO.  ON THE BASIS OF THE RECORD BEFORE HIM AND AFTER
 CONSIDERING THE NEGOTIATING HISTORY WHICH RESULTED IN ARTICLE 70, THE
 ARBITRATOR RULES THAT THE "SCOPE OF THE IMMUNITY PROGRAM FOR AIR TRAFFIC
 CONTROLLERS, THAT IS, THE INCIDENTS TO BE COVERED AND THE WAIVER OF
 DISCIPLINARY ACTION, CAN BE MODIFIED ONLY THROUGH NEGOTIATIONS BETWEEN
 FAA AND PATCO." ACCORDINGLY, HE ISSUED THE FOLLOWING AWARD:
 
    TO THE EXTENT THAT THE IMMUNITY PROGRAM HAS BEEN REDUCED BY THE 1979
 
    "MODIFICATIONS" THROUGH UNILATERAL ACTION BY THE FAA, THERE HAS BEEN
 A VIOLATION OF ARTICLE
 
    70.  THE FAA IS DIRECTED TO RESTORE, INSOFAR AS AIR TRAFFIC
 CONTROLLERS ARE CONCERNED,
 
    PRECISELY THE SAME IMMUNITY WHICH SUCH EMPLOYEES ENJOYED JUST PRIOR
 TO THE ISSUANCE OF THE
 
    1979 "MODIFICATIONS."
 
    THE AGENCY FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
 2425).  THE UNION FILED AN OPPOSITION.
 
    IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD VIOLATES SECTION
 7106(A)(2)(A) OF THE STATUTE /3/ IN THAT IT PROHIBITS MANAGEMENT FROM
 EXERCISING ITS RESERVED RIGHT TO SUSPEND, REMOVE, REDUCE IN GRADE OR
 PAY, OR TAKE OTHER DISCIPLINARY ACTION AGAINST CERTAIN EMPLOYEES. THE
 AGENCY'S POSITION IN SUPPORT OF ITS EXCEPTION IS THAT THE AWARD WILL
 PREVENT THE FAA FROM DISCIPLINING EMPLOYEES FOR A WIDE RANGE OF
 VIOLATIONS OF LAW, REGULATIONS, AND AGENCY PROCEDURES AND POLICIES.  IN
 PARTICULAR, THE AGENCY MAINTAINS THAT THE ARBITRATOR ESSENTIALLY
 DETERMINED THAT MANAGEMENT NEGOTIATED AWAY FOR THE TERM OF THE
 COLLECTIVE BARGAINING AGREEMENT ITS RIGHT TO TAKE CERTAIN DISCIPLINARY
 ACTION, AND THE AGENCY ARGUES THAT THIS DETERMINATION IS CONTRARY TO
 SECTION 7106(A) OF THE STATUTE.  THE AGENCY FURTHER ASSERTS THAT AN
 ARBITRATION AWARD WHICH INTERPRETS AN AGREEMENT PROVISION SO AS TO
 INTERFERE WITH OR PRECLUDE THE EXERCISE OF A SECTION 7106(A) RIGHT IS
 UNENFORCEABLE AND MUST BE OVERTURNED.  FINALLY, THE AGENCY ARGUES THAT
 ARTICLE 70, AS INTERPRETED BY THE ARBITRATOR, PREVENTS MANAGEMENT FROM
 ACTING AT ALL TO DISCIPLINE EMPLOYEES FOR OPERATIONAL ERRORS THAT DO NOT
 INVOLVE CRIMINAL OFFENSES, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR
 ACCIDENTS, AND THEREFORE IT DOES NOT INVOLVE A PROCEDURE TO BE USED ONCE
 MANAGEMENT MAKES THE DECISION TO IMPOSE DISCIPLINE.
 
    IN ITS OPPOSITION TO THE AGENCY'S EXCEPTION, THE UNION PRINCIPALLY
 ARGUES THAT THE AWARD IS NOT AN INFRINGEMENT UPON MANAGEMENT'S SECTION
 7106(A)(2)(A) RIGHT TO DISCIPLINE.  PRIMARILY, THE UNION MAINTAINS THAT
 ALTHOUGH MANAGEMENT HAS THE RIGHT TO DISCIPLINE, THE GROUNDS ON WHICH
 DISCIPLINE MAY LAWFULLY BE BASED ARE SUBJECT TO PROVISIONS OF COLLECTIVE
 BARGAINING AGREEMENTS NEGOTIATED BY THE PARTIES PURSUANT TO THEIR DUTY
 TO BARGAIN UNDER THE STATUTE.  IN THIS RESPECT THE UNION FURTHER
 MAINTAINS THAT THE IMMUNITY PROGRAM PROVISION WAS AGREED TO BY
 MANAGEMENT FOR GOOD AND SUFFICIENT REASONS.  ALTERNATIVELY, THE UNION
 ARGUES THAT ANY LIMITATION ON MANAGEMENT'S RIGHT TO DISCIPLINE IS NOT
 CONTRARY TO SECTION 7106 BECAUSE THE AWARD AND THE IMMUNITY PROGRAM
 PROVISION ONLY CONCERN PROCEDURES IN ACCORDANCE WITH SECTION 7106(B)(2)
 OF THE STATUTE THAT MUST BE FOLLOWED BEFORE DISCIPLINE CAN BE IMPOSED.
 THE UNION CLAIMS THAT MANAGEMENT IS NOT PREVENTED FROM ACTING WITH
 RESPECT TO DISCIPLINE BECAUSE AN AIR TRAFFIC CONTROLLER MAY BE
 DISCIPLINED IF THAT CONTROLLER DID NOT COMPLY WITH THE IMMUNITY PROGRAM
 REQUIREMENTS.
 
    THE UNION ADDITIONALLY ARGUES THAT EVEN IF THE AWARD WERE IN SOME WAY
 CONTRARY TO A LITERAL READING OF SECTION 7106, THIS INFRINGEMENT MUST BE
 WEIGHED AGAINST OTHER FACTORS.  IN THIS CASE THE UNION MAINTAINS THAT
 THE EFFECT OF ANY INFRINGEMENT ON MANAGEMENT'S RIGHT TO DISCIPLINE IS
 OFFSET BY THE COUNTERVAILING BENEFITS TO MANAGEMENT.  THE UNION ALSO
 ASSERTS THAT MANAGEMENT SHOULD BE HELD TO HAVE WAIVED ITS SECTION 7106
 DEFENSE AND SHOULD BE ESTOPPED FROM RAISING IT AS AN EXCEPTION TO THE
 AWARD BECAUSE MANAGEMENT FAILED TO RAISE IT AT ARBITRATION.
 
    THE AGENCY'S EXCEPTION THAT THE AWARD VIOLATES SECTION 7106(A)(2)(A)
 OF THE STATUTE STATES A GROUND UPON WHICH THE AUTHORITY WILL FIND AN
 AWARD DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE.  FOR THE
 REASONS THAT FOLLOW, WE FIND THAT THE ARBITRATOR'S AWARD IN THIS CASE IS
 DEFICIENT BECAUSE IT IS CONTRARY TO SECTION 7106(A)(2)(A).  AS WAS
 NOTED, THE ARBITRATOR'S AWARD IN THIS CASE HAS DIRECTED THAT THE
 AGENCY'S 1979 CHANGES TO THE IMMUNITY PROGRAM BE RESCINDED AS TO AIR
 TRAFFIC CONTROLLERS AND THAT THE PROGRAM AS IT EXISTED BEFORE THESE
 CHANGES BE RESTORED.  BECAUSE THIS STATUS QUO ANTE REMEDY SO INTERFERES
 WITH THE EXERCISE BY THE AGENCY OF ITS RIGHT TO TAKE DISCIPLINARY ACTION
 AGAINST ITS EMPLOYEES, THE AWARD IN THIS RESPECT IS CONTRARY TO SECTION
 7106 OF THE STATUTE AND MUST BE MODIFIED ACCORDINGLY.
 
    THE AUTHORITY HAS HELD THAT THE PLAIN LANGUAGE OF SECTION 7106
 PROVIDES THAT "NOTHING" IN THE STATUTE SHALL "AFFECT THE AUTHORITY" OF
 AN AGENCY TO EXERCISE THE RIGHTS ENUMERATED IN THAT SECTION. /4/
 PURSUANT TO THIS PLAIN LANGUAGE, NO ARBITRATION AWARD UNDER A NEGOTIATED
 GRIEVANCE PROCEDURE MAY INTERPRET OR ENFORCE A PROVISION OF A COLLECTIVE
 BARGAINING AGREEMENT SO AS TO DENY AN AGENCY THE AUTHORITY TO EXERCISE
 ITS RIGHTS UNDER SECTION 7106 OF THE STATUTE.  ACCORDINGLY, THE RIGHTS
 RESERVED TO MANAGEMENT MAY NOT BE INFRINGED BY AN AWARD OF AN ARBITRATOR
 AND MAY NOT BE WAIVED OR RELINQUISHED BY AN AWARD OF AN ARBITRATOR.
 THUS, CONTRARY TO THE ARGUMENT OF THE UNION, INFRINGEMENT ON THE
 AGENCY'S RIGHT TO TAKE DISCIPLINARY ACTION IS NOT TO BE WEIGHED AGAINST
 OTHER FACTORS.  AS WAS EMPHASIZED, THE PLAIN LANGUAGE OF SECTION 7106 IS
 THAT NOTHING SHALL AFFECT THE RIGHT OF THE AGENCY TO ACT IN THIS
 RESPECT.  LIKEWISE, ALSO CONTRARY TO THE ARGUMENT OF THE UNION, THE
 AGENCY CANNOT HAVE WAIVED ITS RIGHT TO TAKE DISCIPLINARY ACTION AGAINST
 ITS EMPLOYEES AND ITS EXCEPTION THAT THE AWARD IS CONTRARY TO SECTION
 7106 IS THEREFORE PROPERLY BEFORE THE AUTHORITY UNDER THE STATUTE.
 
    UNDER THE LANGUAGE OF SECTION 7106(A)(2)(A) OF THE STATUTE, IT IS
 CLEAR THAT MANAGEMENT HAS THE RIGHT TO TAKE DISCIPLINARY ACTION AGAINST
 ITS EMPLOYEES.  IN THIS CASE, THE ARBITRATOR'S AWARD, BY ENFORCING THE
 IMMUNITY PROGRAM PROVISION WITHOUT THE AGENCY'S CHANGES, PREVENTS THE
 AGENCY'S EXERCISE OF ITS STATUTORY RIGHT TO TAKE DISCIPLINARY ACTION
 AGAINST ITS EMPLOYEES.  THE AWARD DENIES THE AGENCY ITS RIGHT TO TAKE
 DISCIPLINARY ACTION WITH RESPECT TO THE CATEGORIES OF INCIDENTS COVERED
 BY THE IMMUNITY PROGRAM AS SET FORTH IN THE AGREEMENT AND REQUIRES
 INSTEAD THAT THE AGENCY CONTINUE TO GRANT IMMUNITY FROM DISCIPLINARY
 ACTION TO ALL AIR TRAFFIC CONTROLLERS WHO COMPLY WITH THE REQUIREMENTS
 OF THE PROGRAM.  THE AWARD THEREFORE CONSTITUTES AN ABSOLUTE PROHIBITION
 AGAINST DISCIPLINE OF AN AIR TRAFFIC CONTROLLER FOR THE INCIDENTS
 SPECIFIED IN THE IMMUNITY PROVISION IF THE CONTROLLER HAS MET THE
 REQUIREMENTS OF THE PROGRAM.  THUS, THIS AWARD DIRECTLY INTERFERES WITH
 THE RIGHT OF THE AGENCY TO TAKE DISCIPLINARY ACTION AND CONSEQUENTLY IS
 CONTRARY TO SECTION 7106(A)(2)(A) OF THE STATUTE.
 
    AS WAS NOTED, THE UNION HAS ALSO ARGUED THAT THE AWARD IS NOT
 CONTRARY TO SECTION 7106 BECAUSE THE AWARD AND THE IMMUNITY PROGRAM
 PROVISION ONLY CONCERN PROCEDURES IN ACCORDANCE WITH SECTION 7106(B)(2)
 THAT MANAGEMENT MUST FOLLOW IN THE EXERCISE OF ITS RIGHT TO TAKE
 DISCIPLINARY ACTION.  ALTHOUGH THE RIGHTS OF MANAGEMENT SET FORTH IN
 SECTION 7106(A) ARE SUBJECT TO SECTION 7106(B)(2) AND (3), /5/ THE
 AUTHORITY HAS CONSISTENTLY HELD THAT THESE PROVISIONS ONLY AUTHORIZE THE
 ESTABLISHMENT OF PROCEDURES OR APPROPRIATE ARRANGEMENTS TO THE EXTENT
 THAT THEY DO NOT PREVENT AN AGENCY FROM ACTING AT ALL.  /6/ THUS, BY
 ENFORCING IMMUNITY FROM DISCIPLINARY ACTION, THE AWARD DOES NOT MERELY
 CONCERN A PROCEDURE THAT MANAGEMENT WILL OBSERVE IN EXERCISING ITS
 RESERVED RIGHT TO TAKE DISCIPLINARY ACTION AND DOES NOT MERELY CONCERN
 AN APPROPRIATE ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY
 DISCIPLINARY ACTION.  /7/ INSTEAD, THE AWARD IMPROPERLY PREVENTS THE
 AGENCY FROM ACTING AT ALL WITH RESPECT TO DISCIPLINING CONTROLLERS FOR
 THE CATEGORIES OF INCIDENTS COVERED BY THE PROGRAM IF THE CONTROLLERS
 HAVE COMPLIED WITH THE REQUIREMENTS OF THE PROGRAM. THEREFORE, THE AWARD
 IS CONTRARY TO SECTION 7106 OF THE STATUTE AND MUST BE MODIFIED
 ACCORDINGLY.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS MODIFIED BY
 STRIKING THE FINAL SENTENCE WHICH READS:
 
    THE FAA IS DIRECTED TO RESTORE, INSOFAR AS AIR TRAFFIC CONTROLLERS
 ARE CONCERNED, PRECISELY
 
    THE SAME IMMUNITY WHICH SUCH EMPLOYEES ENJOYED JUST PRIOR TO THE
 ISSUANCE OF THE 1979
 
    "MODIFICATIONS." AS SO MODIFIED, THE AWARD IS SUSTAINED.  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/ ACCORDING TO THE ARBITRATOR, ARTICLE 70 PROVIDED AS FOLLOWS:
 
    SECTION 1.  THE EMPLOYER AGREES, FOR A PERIOD OF TWO YEARS BEGINNING
 MAY 1, 1975, TO WAIVE
 
    THE RIGHT TO TAKE DISCIPLINARY ACTION AGAINST ANY BARGAINING UNIT
 EMPLOYEE WHO MEETS ALL THE
 
    REQUIREMENTS OF THE AVIATION SAFETY REPORTING PROGRAM PUBLISHED BY
 THE EMPLOYER ON APRIL 22,
 
    1975, AS IT MAY BE CLARIFIED, MODIFIED OR EXPANDED FROM TIME TO TIME
 BY THE EMPLOYER AT HIS
 
    DISCRETION.  THIS WAIVER DOES NOT EXTEND TO INCIDENTS NOT COVERED BY
 THE PROGRAM, CRIMINAL
 
    OFFENSES, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR ACCIDENTS.
 
    /2/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /3/ 5 U.S.C. 7106(A)(2)(A) PROVIDES:
 
    (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 LAWS--
 
    (A) . . .TO SUSPEND, REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER
 DISCIPLINARY ACTION
 
    AGAINST (ITS) EMPLOYEES(.)
 
    /4/ 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).  IT IS CLEAR THAT
 CONGRESS INTENDED THAT THERE WERE "CERTAIN MATTERS ON WHICH THE PARTIES
 MAY NOT NEGOTIATE UNDER ANY CIRCUMSTANCES . . ." JOINT EXPLANATORY
 STATEMENT OF THE COMMITTEE ON CONFERENCE, S. REP. NO. 95-1272, 95TH
 CONG., 2D SESS. 153 (1978).
 
    /5/ 5 U.S.C. 7106(B)(2) AND (3) PROVIDES:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND AND 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.
 
    /6/ E.G., NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE
 TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980).
 
    /7/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 15 AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NORTH
 ATLANTIC REGION, 2 FLRA NO. 109(1980).