15:0055(12)NG - NLRBU and NLRB, Office of the General Counsel -- 1984 FLRAdec NG

 15 FLRA No. 12
 
 NATIONAL LABOR RELATIONS BOARD
 UNION
 Union
 
 and
 
 NATIONAL LABOR RELATIONS BOARD,
 OFFICE OF THE GENERAL COUNSEL
 Agency
 
                                            Case No. O-NG-781
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 relating to the negotiability of the following Union proposal.  Upon
 careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determination.
 
                              Union Proposal
 
          No employee shall be reduced in grade as a result of a
       performance-based adverse action unless such employee has first
       been reassigned to an available noncompetitive position for which
       the employee is qualified and could reasonably be expected to
       demonstrate acceptable performance.  No employee shall be removed
       from employment as a result of a performance-based adverse action
       unless such employee has first, where applicable, been reduced in
       grade as a result of his/her performance to a grade level the
       employee could reasonably be expected to demonstrate acceptable
       performance.  Further, no employee will be removed from employment
       if a position exists for which the employee is qualified and could
       reasonably be expected to demonstrate acceptable performance.
 
    This proposal is materially to the same effect as Union Proposal 1 in
 American Federation of Government Employees, Local 1760 and Department
 of Health and Human Services, Social Security Administration Northeast
 Program Service Center, 9 FLRA 1025 (1982).  The proposal in that case
 would have prevented the Agency from terminating or demoting an employee
 without first allowing the employee to work in a like graded position.
 The Authority concluded that the proposal interfered with the Agency's
 rights to assign, remove, or reduce employees in grade or pay pursuant
 to section 7106(a)(2)(A) of the Statute by placing a condition upon the
 exercise of those rights.  /1/ In the same way, the instant proposal
 improperly places a condition, i.e., reassignment to a new position,
 upon the Agency's right to reduce in grade or pay or remove an employee.
  Thus for the reasons set forth in greater detail in Social Security
 Administration Northeast Program Service Center, the instant proposal is
 also inconsistent with section 7106(a)(2)(A) of the Statute and is
 outside the duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.
 
    Issued, Washington, D.C., June 8, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7106 of the Statute provides, in relevant 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 laws--
 
          (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;