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[ v28 p969 ]
The decision of the Authority follows:

28 FLRA NO. 126






Case No. 0-NG-1408


I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(B) of the Federal Service Labor - Management Relations Statute (the Statute). The appeal concerns the negotiability of a single Union proposal, which we find is outside the duty to bargain because it conflicts with the Agency's rights to direct employees and assign work.

II. Union Proposal

A Title 32 employee who is not satisfied with the appraisal may appeal to the State Impartial Review Board appointed by the Adjutant General. On this board, which shall consist of three (3) members, the Union shall be allowed one (1) member. This will only be allowed when the appeal concerns a bargaining unit member. This member shall be selected by the Union. approved and appointed along with the other two (2) members by the Adjutant General, and shall have the same responsibilities as the other members. . . . The union official that is sitting on the Board shall not be the employee's representative. (Only the underscored language is in dispute.) 

III. Positions of the Parties

The Agency argues that the underscored language of this proposal, which requires that a union representative shall be a member of the state impartial review board, is substantively identical to the requirement of Proposal 5 in National Association of Government Employees, SEIU, AFL - CIO and National Guard Bureau, Adjutant General, 26 FLRA No. 62 (1987) (SEIU), which we held nonnegotiable as being inconsistent with section 7106(a)(2)(A) and (B) of the Statute. Based on SEIU, the Agency also argues that the proposal's requirement is nonnegotiable regardless of contrary provisions in a National Guard Bureau regulation.

The Union argues that the proposal is negotiable because (1) it does not conflict with management's rights under 7106 of the Statute, and (2) a National Guard Bureau regulation--Technician Personnel Manual No. 430, part V, section A--specifically provides that union membership on the board may be negotiated.

IV. Analysis and Conclusion

This proposal's requirement--that a union representative shall be a member of the state review board--is identical to the requirement of Proposal 5 in SEIU, 26 FLRA No. 62. As we explained in SEIU, the requirement is non-negotiable for the following reasons:

The Board reviews appeals by employees concerning their performance appraisals and recommends to the Adjutant General whether the appraisal should be upheld. We find that the Board's function constitutes an integral part of the process by which the Agency exercises its rights under section 7106(a)(2)(A) and (B) (of the Statute) to direct employees and assign work by appraising the performance of its employees. By placing a Union representative on the Appeals Board, the proposal would allow the union to interject itself into the Agency's decision-making process and prevent the management officials on the Board from engaging in free and open deliberations . . . (which) are an essential part of management's right to make decisions under section 7106 of the Statute. . . . Accordingly, we conclude that Proposal 5 would interfere with the Agency's rights to direct employees and assign work and is outside the duty to bargain. (Citations omitted.) 

Based on this conclusion--that the negotiation of this proposal's requirement is barred by section 7106(a) of the Statute--we find that the Union's contention that the proposal is rendered negotiable by the Agency's regulation cannot be sustained. An agency cannot make negotiable, by regulation or otherwise, matters which are barred from negotiation by section 7106(a) of the Statute. See Overseas Education Association v. FLRA, No. 86-1491, slip op. at 9 (D.C. Cir. Aug. 28, 1987).

Accordingly, we conclude that this proposal is outside the duty to bargain.

V. Order

The petition for review is dismissed.

Issued, Washington, D.C., September 15, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member