[ v09 p716 ]
09:0716(86)NG
The decision of the Authority follows:
9 FLRA No. 86
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2192
Union
and
VETERANS ADMINISTRATION REGIONAL
OFFICE, ST. LOUIS, MISSOURI
Agency
Case No. O-NG-420
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN 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.). THE ISSUE PRESENTED IS THE NEGOTIABILITY OF FIVE
UNION PROPOSALS. /1/ UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD,
INCLUDING THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
DETERMINATIONS.
UNION PROPOSAL 1
SECTION 1: THE PARTIES AGREE THAT CRITICAL ELEMENTS OF A POSITION
USED FOR PERFORMANCE
APPRAISAL PURPOSES WILL BE BASED ONLY ON THE GRADE-CONTROLLING
FACTORS OF A POSITION FOR WHICH
THERE WILL BE AN ACCURATE POSITION OR JOB DESCRIPTION. SUCH CRITICAL
ELEMENTS FOR PERFORMANCE
APPRAISALS WILL BE WEIGHTED IN DIRECT PROPORTION TO THE RELATIVE
IMPORTANCE IN GRADE
DETERMINATION. EACH EMPLOYEE WILL BE GIVEN A COPY OF THE CRITICAL
ELEMENTS FOR THEIR POSITION
AT THE BEGINNING OF THE APPRAISAL YEAR. (ONLY THE UNDERSCORED
PORTIONS OF THE PROPOSAL HAVE
BEEN ALLEGED TO BE OUTSIDE THE DUTY TO BARGAIN.)
THE AGENCY CONTENDS, AND THE AUTHORITY AGREES, THAT THE UNDERSCORED
PORTIONS OF THE PROPOSAL ARE INCONSISTENT WITH AGENCY MANAGEMENT'S
RIGHTS TO "DIRECT" EMPLOYEES AND "ASSIGN WORK" UNDER SECTION
7106(A)(2)(A) AND (B) OF THE STATUTE BECAUSE THEY WOULD PRECLUDE THE
AGENCY FROM IDENTIFYING AS A CRITICAL ELEMENT ANY JOB ELEMENT WHICH IS
NOT GRADE-CONTROLLING. IN THIS RESPECT, THE PROPOSAL IS IDENTICAL TO
PROPOSALS IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
3804 AND FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO REGION,
ILLINOIS, 7 FLRA NO. 34 (1981), AND 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), REQUIRING THAT CRITICAL ELEMENTS OF A POSITION BE BASED ONLY
ON THE GRADE-CONTROLLING FACTORS OF THE POSITION, WHICH THE AUTHORITY
HELD TO BE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7106(A)(2)(A) AND
(B). THEREFORE, FOR THE REASONS SET FORTH IN DETAIL IN FEDERAL DEPOSIT
INSURANCE CORPORATION AND SAINT LAWRENCE SEAWAY DEVELOPMENT
CORPORATION,
THE UNDERSCORED PORTIONS OF THE DISPUTED PROPOSAL IN THIS CASE MUST BE
HELD TO BE OUTSIDE THE DUTY TO BARGAIN. ACCORDINGLY, PURSUANT TO
SECTION 2420.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10
(1981)), IT IS ORDERED THAT THE PETITION FOR REVIEW OF THE UNDERSCORED
PORTIONS OF UNION PROPOSAL 1 BE, AND IT HEREBY IS, DISMISSED.
UNION PROPOSAL 2
SECTION 2: STANDARDS USED FOR MEASUREMENT OF PERFORMANCE FOR
CRITICAL ELEMENTS OF THE JOB
WILL BE FAIR, OBJECTIVE, REASONABLE AND DIRECTLY RELATED TO AN
EMPLOYEE'S OFFICIAL
POSITION. STANDARDS OF PERFORMANCE WILL MAKE ALLOWANCE FOR FACTORS
BEYOND THE CONTROL OF THE
EMPLOYEE. SUCH STANDARDS WILL BE IN WRITING AND GIVEN TO EMPLOYEES
AT THE BEGINNING OF THE
APPRAISAL YEAR. (ONLY THE UNDERSCORED PORTIONS OF THIS PROPOSAL HAVE
BEEN ALLEGED TO BE
OUTSIDE THE DUTY TO BARGAIN.)
CONTRARY TO THE AGENCY'S CONTENTIONS, THE AUTHORITY FINDS THAT THE
UNDERSCORED PORTIONS OF THE PROPOSAL WOULD NOT BE DETERMINATIVE OF THE
CONTENT OF PERFORMANCE STANDARDS. FURTHER, CONTRARY TO THE AGENCY'S
POSITION, THE PROPOSAL WOULD NOT ESTABLISH CRITERIA FOR THE CONTENT OF
PERFORMANCE STANDARDS WHICH ARE INCONSISTENT WITH THOSE PROVIDED IN 5
U.S.C. 4302(B)(1). /2/ RATHER, THE PROPOSAL WOULD PROVIDE A
CONTRACTUAL STANDARD OF OBJECTIVITY AND JOB-RELATEDNESS BY WHICH AGENCY
ACTION UNDER ITS PERFORMANCE STANDARDS MAY BE REVIEWED. IN THIS REGARD,
THE PROPOSAL IS IDENTICAL TO UNION PROPOSAL 2 IN FEDERAL DEPOSIT
INSURANCE CORPORATION, SUPRA, WHICH THE AUTHORITY FOUND TO BE WITHIN THE
DUTY TO BARGAIN BECAUSE THE PROPOSAL ESTABLISHED GENERAL,
NONQUANTITATIVE REQUIREMENTS BY WHICH THE APPLICATION OF PERFORMANCE
STANDARDS ESTABLISHED BY MANAGEMENT COULD SUBSEQUENTLY BE EVALUATED IN A
GRIEVANCE BY AN EMPLOYEE WHO BELIEVED THAT HE OR SHE HAD BEEN ADVERSELY
AFFECTED BY THE APPLICATION OF SUCH STANDARDS. THEREFORE, FOR THE
REASONS MORE FULLY SET FORTH IN FEDERAL DEPOSIT INSURANCE CORPORATION
AND, AS REFERENCED THEREIN, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C.,
3 FLRA 783, 789 (1980), THE UNDERSCORED PORTION OF THE PROPOSAL IS
CONSISTENT WITH LAW AND IS WITHIN THE DUTY TO BARGAIN. ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR 2424.10 (1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST
(OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING UNION
PROPOSAL 2. /3/
UNION PROPOSAL 3
SECTION 3: EMPLOYEE'S ANNUAL PERFORMANCE RATING WILL BE THE RESULT
OF THE APPLICATION OF
STANDARDS OF PERFORMANCE TO THE APPROPRIATE CRITICAL ELEMENTS OF A
POSITION ESTABLISHED IN
ACCORDANCE WITH SECTIONS 1 AND 2 ABOVE. ALL PERFORMANCE APPRAISALS
SHALL BE IN WRITING, GIVEN
TO THE EMPLOYEE AND STATE IN DETAIL THE BASIS FOR THE RATING. THE
EMPLOYEE SHALL BE GIVEN
ADEQUATE OPPORTUNITY TO IMPROVE PERFORMANCE, NOT LIMITED TO THE
STATUTORY NOTICE PERIOD, AND
MANAGEMENT WILL MAKE A SINCERE EFFORT TO ASSIST THE EMPLOYEE IN
IMPROVING PERFORMANCE TO THE
LEVEL REQUIRED. (ONLY THE UNDERSCORED PORTION OF THIS PROPOSAL HAS
BEEN ALLEGED TO BE OUTSIDE
THE DUTY TO BARGAIN.)
THE UNDERSCORED PORTION OF THIS PROPOSAL, IN PART, CONCERNS THE
DURATION OF THE PERFORMANCE APPRAISAL CYCLE AND THE APPLICATION OF
PERFORMANCE STANDARDS TO EACH ELEMENT OF AN EMPLOYEE'S JOB. IN THIS
RESPECT THE PROPOSAL IS IDENTICAL TO PROPOSALS IN FEDERAL DEPOSIT
INSURANCE CORPORATION, SUPRA, AND SAINT LAWRENCE SEAWAY DEVELOPMENT
CORPORATION, SUPRA, ESTABLISHING THE FREQUENCY OF PERIODIC PERFORMANCE
APPRAISALS WHICH WERE HELD NEGOTIABLE. THEREFORE, FOR THE REASONS SET
FORTH IN DETAIL IN FEDERAL DEPOSIT INSURANCE CORPORATION AND SAINT
LAWRENCE SEAWAY DEVELOPMENT CORPORATION, THE UNDERSCORED PORTION OF
THE
PROPOSAL IS WITHIN THE DUTY TO BARGAIN TO THE EXTENT IT WOULD ESTABLISH
THE DURATION OF AN APPRAISAL CYCLE.
FINALLY, INSOFAR AS THIS PROPOSAL WOULD REQUIRE CRITICAL ELEMENTS OF
A POSITION AND PERFORMANCE STANDARDS TO BE ESTABLISHED IN ACCORDANCE
WITH THE DISPUTED PORTION OF UNION PROPOSAL 1, SUPRA, PREVIOUSLY
DETERMINED HEREIN TO BE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7106
OF THE STATUTE, UNION PROPOSAL 3 IS LIKEWISE OUTSIDE THE DUTY TO
BARGAIN. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE
AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
BARGAIN CONCERNING UNION PROPOSAL 3 TO THE EXTENT SET FORTH ABOVE. /4/
UNION PROPOSAL 4
SECTION 4. THERE SHALL BE NO SECRET STUDIES BEARING ON PERFORMANCE
APPRAISALS. ALL
STUDIES CONDUCTED BY THE EMPLOYER WILL BE CONDUCTED ON TYPICAL
WORKERS UNDER NORMAL WORKING
CONDITIONS.
THE UNION SHALL PARTICIPATE ON AN EQUAL BASIS IN THE DEVELOPMENT OR
REVISION OF ALL
MEASURES OF PERFORMANCE AND STUDIES INCLUDING BUT NOT LIMITED TO
SELECTION OF TYPICAL WORKERS
AND CONDITIONS. IF AGREEMENT CANNOT BE REACHED, FORMAL NEGOTIATIONS
WILL BE CONVENED. ANY
IMPASSE WILL BE REFERRED TO THE FEDERAL SERVICE IMPASSES PANEL FOR
RESOLUTION. (ONLY THE
UNDERSCORED PORTION OF THIS PROPOSAL HAS BEEN ALLEGED TO BE OUTSIDE
THE DUTY TO BARGAIN.)
BASED ON THE RECORD IN THIS CASE IT APPEARS THAT THE UNDERSCORED
PORTION OF THE PROPOSAL WOULD REQUIRE BARGAINING TO IMPASSE WITH THE
UNION AS AN EQUAL PARTNER IN DETERMINING THE SPECIFIC CONTENT OF
PARTICULAR PERFORMANCE STANDARDS. IN THIS REGARD, IT IS IDENTICAL TO
PROPOSALS THE AUTHORITY HELD TO BE OUTSIDE THE DUTY TO BARGAIN IN
FEDERAL DEPOSIT INSURANCE CORPORATION, SUPRA, AND SAINT LAWRENCE SEAWAY
DEVELOPMENT CORPORATION, SUPRA. IN EACH OF THESE CASES, THE PROPOSAL AT
ISSUE WAS FOUND TO REQUIRE BARGAINING WITH THE UNION CONCERNING THE
CONTENT OF PERFORMANCE STANDARDS AND, THEREFORE, TO BE INCONSISTENT WITH
MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES AND TO ASSIGN WORK UNDER SECTION
7106(A)(2)(A) AND (B). THEREFORE, FOR THE REASONS MORE FULLY SET FORTH
IN THOSE CASES, UNION PROPOSAL 4 HEREIN IS OUTSIDE THE DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE PETITION FOR
REVIEW OF THE UNDERSCORED PORTION OF UNION PROPOSAL 4 BE, AND IT HEREBY
IS, DISMISSED.
UNION PROPOSAL 5
SECTION 6: ANY DISPUTES UNDER THIS ARTICLE MAY BE RESOLVED UNDER THE
NEGOTIATED GRIEVANCE
PROCEDURE INCLUDING BUT NOT LIMITED TO:
(1) CHALLENGES TO THE CRITICAL ELEMENTS OF A 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.
(5) ANY DISPUTE UNDER THIS ARTICLE THAT IS MADE THE SUBJECT OF AN
APPEAL OR GRIEVANCE WILL
BE STAYED UNTIL A FINAL DECISION IS RENDERED ON THE DISPUTED ISSUE.
(ONLY THE UNDERSCORED PORTIONS OF THE PROPOSAL HAVE BEEN ALLEGED TO
BE OUTSIDE THE DUTY TO
BARGAIN.)
SUBSECTIONS (1) AND (2) OF THE PROPOSAL WOULD PROVIDE FOR REVIEW IN A
NEGOTIATED GRIEVANCE PROCEDURE OF THE AGENCY'S IDENTIFICATION OF THE
CRITICAL ELEMENTS OF A POSITION AND ESTABLISHMENT OF PERFORMANCE
STANDARDS. AN IDENTICAL PROPOSAL WAS DISPUTED IN FEDERAL DEPOSIT
INSURANCE CORPORATION, SUPRA, AND SAINT LAWRENCE SEAWAY DEVELOPMENT
CORPORATION, SUPRA. IN THOSE DECISIONS, THE AUTHORITY HELD THAT BY
PROVIDING FOR ARBITRAL REVIEW OF THE AGENCY'S IDENTIFICATION OF THE
CRITICAL ELEMENTS OF A POSITION AND THE ESTABLISHMENT OF PERFORMANCE
STANDARDS, THE PROPOSALS WERE INCONSISTENT WITH AGENCY MANAGEMENT'S
RIGHTS TO DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106(A)(2)(A)
AND (B) OF THE STATUTE. THUS, FOR THE REASONS MORE FULLY SET FORTH IN
FEDERAL DEPOSIT INSURANCE CORPORATION, AND SAINT LAWRENCE SEAWAY
DEVELOPMENT CORPORATION, SUBSECTIONS (1) AND (2) OF UNION PROPOSAL 5 ARE
OUTSIDE THE DUTY TO BARGAIN.
AS TO SUBSECTION (5), WHICH PROVIDES FOR THE STAYING OF AN AGENCY
ACTION PENDING A FINAL DECISION ON APPEAL OR THROUGH THE NEGOTIATED
GRIEVANCE PROCEDURE WITH RESPECT TO DISPUTES ARISING UNDER THE
PERFORMANCE STANDARD SECTION, THE AUTHORITY, IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE
SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA 152 (1979),
ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FLRA, 659 F.2D 1140 (D.C.
CIR. 1981), CERT. DENIED SUB NOM. AFGE V. FLRA, . . . U.S. . . ., 102
S.CT. 1443 (1982), HELD THAT PROPOSALS WHICH ESTABLISHED PROCEDURES
UNDER 7106(B)(2) OF THE STATUTE WERE WITHIN THE DUTY TO BARGAIN UNLESS
THE AGENCY WAS PREVENTED BY SUCH PROCEDURES FROM ACTING AT ALL. IN THAT
CASE, THE AUTHORITY HELD THAT A PROPOSAL PROVIDING FOR A STAY OF AGENCY
ACTION PENDING AN ARBITRATOR'S AWARD WAS WITHIN THE DUTY TO BARGAIN
BECAUSE IT DID NOT PREVENT THE AGENCY FROM ACTING AT ALL. THUS, IF THE
DISPUTED PROPOSAL HAD PROVIDED ONLY FOR THE STAYING OF AGENCY ACTION
PENDING A FINAL DECISION THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE IT
WOULD HAVE BEEN WITHIN THE DUTY TO BARGAIN. SEE ALSO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 547, AFL-CIO AND VETERANS
ADMINISTRATION MEDICAL CENTER, TAMPA, FLORIDA, 4 FLRA NO. 50 (1981),
ENFORCED SUB NOM. VETERANS ADMINISTRATION MEDICAL CENTER, TAMPA, FLORIDA
V. FLRA, 675 F.2D 260 (11TH CIR. 1982).
HOWEVER, THE DISPUTED PROPOSAL ALSO PROVIDES FOR A STAY OF AN AGENCY
ACTION PENDING AN APPEAL. IT IS CONCLUDED THAT THE TERM "APPEAL" MEANS
AN APPEAL TO THE MERIT SYSTEMS PROTECTION BOARD (MSPB) UNDER 5 U.S.C.
7701, WHICH APPEAL IS REFERENCED IN SECTION 7121(E)(1) OF THE STATUTE.
/5/ THUS, THE PROPOSAL IS NOT MATERIALLY DIFFERENT FROM THE PROPOSAL IN
NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, U.S.
CUSTOMS SERVICE, 9 FLRA NO. 70 (1982), WHICH PROVIDED FOR STAYING THE
EFFECT OF ANY AGENCY DECISION AGAINST ANY EMPLOYEE PENDING THE OUTCOME
OF ANY APPEAL TO MSPB. IN THAT CASE, THE AUTHORITY HELD THAT SINCE MSPB
REQUIRES FINAL AGENCY ACTION AS A PREREQUISITE TO AN EXERCISE OF ITS
APPELLATE JURISDICTION, THE REQUIREMENT OF A STAY OF AGENCY ACTION
PENDING AN APPEAL TO MSPB WOULD RESULT IN AGENCY ACTION BEING STAYED
PERMANENTLY AND, THEREFORE, THE AGENCY WOULD BE PREVENTED FROM ACTING AT
ALL TO EXERCISE ITS RIGHTS UNDER SECTION 7106(A)(2)(A) OF THE STATUTE.
THUS, FOR THE REASONS MORE FULLY SET FORTH IN NATIONAL TREASURY
EMPLOYEES UNION, SUPRA, SUBSECTION (5) OF THE DISPUTED PROPOSAL IS
OUTSIDE THE DUTY TO BARGAIN BECAUSE IT REQUIRES A STAY OF AGENCY ACTION
PENDING A FINAL DECISION IN AN APPEAL TO MSPB.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE PETITION FOR
REVIEW AS TO SUBSECTIONS (1) AND (2) OF UNION PROPOSAL 5 BE, AND IT
HEREBY IS, DISMISSED. FURTHER, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), BECAUSE
SUBSECTION (5) OF UNION PROPOSAL 5 REQUIRES THE STAYING OF A FINAL
DECISION PENDING APPEAL, IT IS ORDERED THAT THE PETITION FOR REVIEW BE,
AND IT HEREBY IS, DISMISSED. ISSUED, WASHINGTON, D.C., AUGUST 3, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ THE AGENCY WITHDREW ITS ALLEGATIONS OF NONNEGOTIABILITY AS TO TWO
OTHER PROPOSALS WHICH HAD BEEN APPEALED BY THE UNION IN THE INSTANT
CASE. CONSEQUENTLY, THE DISPUTES AS TO THOSE PROPOSALS HAVE BEEN
RENDERED MOOT AND THEY WILL NOT BE FURTHER CONSIDERED HEREIN.
/2/ 5 U.S.C. 4302(B)(1) PROVIDES AS FOLLOWS:
SEC. 4302. ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS
. . . .
(B) UNDER REGULATIONS WHICH THE OFFICE OF PERSONNEL MANAGEMENT SHALL
PRESCRIBE, EACH
PERFORMANCE APPRAISAL SYSTEM SHALL PROVIDE FOR--
(1) ESTABLISHING PERFORMANCE STANDARDS WHICH WILL, TO THE MAXIMUM
EXTENT FEASIBLE, PERMIT
THE ACCURATE EVALUATION OF JOB PERFORMANCE ON THE BASIS OF OBJECTIVE
CRITERIA (WHICH MAY
INCLUDE THE EXTENT OF COURTESY DEMONSTRATED TO THE PUBLIC) RELATED TO
THE JOB IN QUESTION FOR
EACH EMPLOYEE OR POSITION UNDER THE SYSTEM(.)
/3/ IN DECIDING THAT UNION PROPOSAL 2 IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS THEREOF.
/4/ IN DECIDING THAT UNION PROPOSAL 3 IS WITHIN THE DUTY TO BARGAIN
TO THE EXTENT INDICATED, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS
TO THE MERITS THEREOF.
/5/ SECTION 7121(E)(1) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
SEC. 7121. GRIEVANCE PROCEDURES
. . . .
(E)(1) MATTERS COVERED UNDER SECTIONS 4303 AND 7512 OF THIS TITLE
WHICH ALSO FALL WITHIN
THE COVERAGE OF THE NEGOTIATED PROCEDURE MAY, IN THE DISCRETION OF
THE AGGRIEVED EMPLOYEE, BE
RAISED EITHER UNDER THE APPELLATE PROCEDURES OF SECTION 7701 OF THIS
TITLE OR UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE, BUT NOT BOTH.