18:0320(42)NG - NLRBU and NLRB, Office of the General Counsel -- 1985 FLRAdec NG
[ v18 p320 ]
18:0320(42)NG
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).