[ v18 p320 ]
The decision of the Authority follows:
18 FLRA No. 42 NATIONAL LABOR RELATIONS BOARD UNION Union and NATIONAL LABOR RELATIONS BOARD, OFFICE OF THE GENERAL COUNSEL Agency Case No. 0-NG-781 15 FLRA No. 12 DECISION AND ORDER ON REMAND On December 11, 1984, the United States Court of Appeals for the District of Columbia Circuit granted the Authority's request that this case be remanded to the Authority /1/ for further consideration of its negotiability determination with respect to the following proposal: 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. The Authority had held the proposal to be nonnegotiable, finding, in reliance upon its earlier decision 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), that the proposal improperly would place a condition, i.e., reassignment to a new position, upon the agency's right to reduce in grade or pay or remove an employee pursuant to section 7106(a)(2)(A) of the Statute. /2/ National Labor Relations Board Union and National Labor Relations Board, Office of the General Counsel, 15 FLRA No. 12 (1984). The case is now back before the Authority to consider arguments, which it did not rule on in reaching its original decision, concerning whether the Union's proposal constitutes a negotiable procedure and/or an appropriate arrangement within the meaning of section 7106(b)(2) and (3) of the Statute. /3/ In this connection, the Union argues that the proposal at issue herein constitutes both a section 7106(b)(2) procedure management will follow in exercising its statutory rights to appraise and effect remedial discipline and a section 7106(b)(3) appropriate arrangement for employees adversely affected by the exercise of those rights. Specifically, the Union states that the proposal would become operative only after management appraised an employee pursuant to the provisions of chapter 43 of title 5 and concluded that remedial action was warranted. Then, according to the Union, the proposal would merely prescribe the procedures which management must apply to determine which remedial action was appropriate under the circumstances or, in other words, to consider limiting the severity of the remedial action to what would be commensurate with the employee's performance deficiencies. Thus, according to the Union, the proposal only would require the Agency "to consider less severe discipline before more severe; and, absent good reasons ('good cause'), the Agency would be expected to opt for the lesser of the discipline options." /4/ We turn first to the question of whether the disputed proposal in this case is properly a "procedure" within the meaning of section 7106(b)(2) of the Statute, so that it would be negotiable unless its adoption would prevent management from acting at all; /5/ or, whether implementation of the proposal would "directly interfere with the agency's basic right . . . (reserved) under section 7106(a) . . . ." /6/ In this respect, the Union's position that the proposal constitutes a procedure is unpersuasive in that it is at odds with the plain language of the proposal. /7/ Specifically, the express language of the proposal, despite being expressed in terms which arguably are procedural, is so prescriptive as to directly interfere with management's rights to make decisions of substance. The proposal does not, as the Union claims, obligate the Agency merely to consider reassigning an employee before terminating or demoting that employee for unacceptable performance. Rather, this proposal would require in all instances, without regard to an individual's particular performance deficiencies which resulted in the proposed termination or demotion action, that the Agency refrain from demoting or terminating an employee for unacceptable performance until it first assigned that employee to work in a different noncompetitive position which is available and for which the employee is qualified and reasonably expected to perform acceptably. Furthermore, there is nothing in the express language of the proposal which indicates that if an available position has been identified for which the employee is qualified and could be expected to perform acceptably, the Agency could decide not to fill such position. Thus, in these circumstances, adoption of this proposal would result in the Agency's being obligated to reassign the employee in question or rescind the proposed demotion or termination action altogether. Clearly, therefore, as this proposal would expressly place a substantive restriction on management's discretion to decide to remove or reduce employees in grade or pay pursuant to section 7106(a)(2)(A) of the Statute (which restriction itself involves the exercise of management's right to assign employees pursuant to section 7106(a)(2)(A) of the Statute) the proposal directly interferes with that management right and does not constitute a procedure within the meaning of section 7106(b)(2) of the Statute. Hence, the proposal is not within the duty to bargain under section 7106(b)(2). The Authority now turns to the question of whether the disputed proposal constitutes an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute. In this respect and as previously noted herein, this case was remanded to the Authority by the U.S. Court of Appeals for the D.C. Circuit. That Court has held that a union proposal which directly interferes with the exercise of management rights reserved under section 7106(a) of the Statute may, nonetheless, constitute a negotiable appropriate arrangement within the meaning of section 7106(b)(3) so long as the proposal does not "impinge upon management's prerogatives to an excessive degree." /8/ The Authority applied that Court's "excessive degree" rationale upon remand and direction of the Court in American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 14 FLRA 801 (1984), motion for reconsideration granted on other grounds (June 22, 1984). There the Authority ascertained that a union proposal which expressly required selection of an employee who had previously been demoted through no fault of his or her own for the first vacancy for which he or she "fully meets the qualification standards" and which the agency "determines to fill" would constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. In that case the Authority found that the proposed appropriate arrangement would protect the needs of employees whom management had previously demoted through no fault of their own by ameliorating the adverse effects of management's exercise of its prerogatives. At the same time, however, the Authority found the proposed arrangement would protect the needs of management to determine qualifications requirements of positions, to decide whether to fill vacancies and, if so, which vacancies to fill and then to fill those vacancies only with fully qualified employees. Thus, the Authority determined the proposed arrangement would not interfere with management's rights under section 7106(a) to an "excessive degree" so as to be rendered "inappropriate" for negotiations under section 7106(b)(3) of the Statute. /9/ The circumstances of the instant case clearly are distinguishable from Bureau of the Census and require a different conclusion. The instant proposal concerns employees whom management is proposing to demote or terminate because they are at "fault," i.e., they have demonstrated an inability or unwillingness to perform the duties of their positions at an acceptable level. /10/ Further, unlike the proposal found to constitute an appropriate arrangement in Bureau of the Census, the proposal in the instant case does not expressly preserve the Agency's discretion to decide whether to fill a vacant position. Hence, the Agency would be obligated under the literal language of the proposal to fill such a position by reassignment of an employee against whom the Agency had proposed a demotion or termination action. Moreover, this proposal indiscriminately would require in every instance, without regard to the nature or extent of the performance deficiencies giving rise to a particular proposed demotion or termination action, that the Agency reassign before demoting and demote before terminating an employee. Thus, notwithstanding the Union's contention that the proposal merely requires management to "consider" limiting the severity of the proposed action to that which is commensurate with an employee's performance deficiencies, the express language of the proposal does not in any manner purport to preserve management's discretion in this regard. /11/ The proposed arrangement obviously would ameliorate the adverse effects on unacceptably performing employees of management's exercise of its statutory right to take action against them for such unacceptable performance. However, the proposed arrangement would not protect the needs of management to decide whether or which vacancies to fill or to determine what remedial actions are commensurate with a particular employee's performance deficiencies and the mission requirements of the Agency. Therefore, the Authority concludes that the proposed arrangement here in dispute would interfere with management's rights under section 7106(a)(2)(A) to an excessive degree. Consequently it is not an "appropriate" arrangement under section 7106(b)(3) of the Statute. /12/ Accordingly, for the foregoing reasons the Union's proposal in this case is found to be outside the duty to bargain. Issued, Washington, D.C., May 24, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ National Labor Relations Board Union v. FLRA, No. 84-1365 (D.C. Cir. Dec. 11, 1984) (Order Remanding Case to Authority). /2/ Section 7106(a)(2)(A) of the Statute provides: 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(.) /3/ Section 7106(b) provides in pertinent part: Sec. 7106. Management rights * * * * (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. /4/ Union Supplemental Submission at 5. /5/ American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153, 155 (1979), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). /6/ American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). /7/ The Authority has consistently held that it will not base a negotiability determination on an explanation of a proposal's meaning clearly at odds with the express language of that proposal. See, e.g., American Federation of Government Employees, AFL-CIO, Local 2955 and National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa, 5 FLRA 617 (1981). /8/ American Federation of Government Employees, Local 2782 v. Federal Labor Relations Authority, 702 F.2d 1183, 1188 (D.C. Cir. 1983). /9/ However, the Authority held the proposal to be outside the duty to bargain because it was inconsistent with a Government-wide regulation. /10/ Pursuant to 5 U.S.C. 4302(b)(6) an employee must first be given an opportunity to demonstrate acceptable performance of the duties of his or her position before action against that employee is taken. /11/ The statutory obligation of an agency to consider ameliorating circumstances in determining the severity of a disciplinary action against an employee for unacceptable performance is currently being litigated. See Lisiecki v. Federal Home Loan Bank Board, MSPB Docket No. CH04328410250 (Oct. 22, 1984), appeal docketed 85-899 (Fed. Cir. Dec. 18, 1984). /12/ Insofar as this proposal has been determined to excessively interfere with the exercise of management rights under section 7106(a)( it also "deals directly with the right of the agency" under section 7106(a) and therefore is not an appropriate arrangement under the test applied by the U.S. Court of Appeals for the 11th Circuit in United States Air Force, Headquarters, Warner Robins Air Force Logistics Command, Robins Air Force Base, Georgia v. FLRA, 727 F.2d 1502 (11th Cir. 1984).