[ v05 p70 ]
05:0070(14)NG
The decision of the Authority follows:
5 FLRA No. 14
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1968
Union
and
DEPARTMENT OF TRANSPORTATION, SAINT
LAWRENCE SEAWAY DEVELOPMENT
CORPORATION, MASSENA, NEW YORK
Agency
Case No. 0-NG-194
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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.).
UNION PROPOSAL 1
SECTION 1: THE PARTIES AGREE THAT CRITICAL ELEMENTS OF A POSITION
USED FOR PERFORMANCE
APPRAISAL 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 THIS PROPOSAL HAVE
BEEN ALLEGED TO BE OUTSIDE THE DUTY TO BARGAIN.)
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTIONS OF THE
UNION'S PROPOSAL VIOLATE SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE
AND ARE, THEREFORE, NOT WITHIN THE DUTY TO BARGAIN.
OPINION
CONCLUSION AND ORDER: THE UNDERSCORED PORTIONS OF THE PROPOSAL
VIOLATE SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE. /1/ ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR 2424.10, AS AMENDED BY 45 F.R. 48575), IT IS ORDERED THAT THE
PETITION FOR REVIEW OF THE DISPUTED PROPOSAL BE DISMISSED.
REASONS: TAKEN TOGETHER, THE LANGUAGE OF THE DISPUTED PORTIONS OF
THE PROPOSAL WOULD REQUIRE THAT THE CRITICAL ELEMENTS OF A POSITION BE
BASED ONLY ON THE GRADE-CONTROLLING FACTORS OF A POSITION AND BE
WEIGHTED IN DIRECT PROPORTION TO THEIR RELATIVE IMPORTANCE IN GRADE
DETERMINATION. CONSISTENT WITH THIS LANGUAGE, THE UNION STATES IN THE
RECORD ITS INTENT THAT THE PROPOSAL "RESTRICT CRITICAL ELEMENTS TO ONLY
THOSE FACTORS WHICH ARE GRADE CONTROLLING" COMPONENTS OF A JOB. /2/
THUS, THE PROPOSAL ON ITS FACE, AND AS INTERPRETED BY THE UNION, WOULD
NOT PERMIT THE AGENCY TO DESIGNATE AS A CRITICAL ELEMENT ANY COMPONENT
OF A JOB OTHER THAN A GRADE-CONTROLLING COMPONENT. NOTWITHSTANDING THIS
CONCEDED LIMITATION UNDER THE PROPOSAL ON WHAT COULD BE DESIGNATED A
CRITICAL ELEMENT OF A POSITION, THE UNION ARGUES, FIRST OF ALL, THE
PROPOSAL DOES NOT INTERFERE WITH MANAGEMENT'S RIGHT TO ASSIGN OTHER
DUTIES TO AN EMPLOYEE AND, SECONDLY, THE PROPOSAL MERELY "ESTABLISHES A
STANDARD BY WHICH AN APPROPRIATE THIRD PARTY WILL BE ABLE TO JUDGE THE
ADEQUACY OF ANY CHALLENGED CRITICAL ELEMENT." THESE ARGUMENTS CANNOT BE
SUSTAINED.
IN ITS DECISION IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT
OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), THE
AUTHORITY HELD A PROPOSAL WHICH WOULD HAVE IDENTIFIED A PARTICULAR
CRITICAL ELEMENT OF A POSITION AND ESTABLISHED THE STANDARD OF
PERFORMANCE FOR THAT ELEMENT WAS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT
WAS INCONSISTENT WITH MANAGEMENT'S STATUTORY AUTHORITY TO DIRECT ITS
EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106(A)(2)(A) AND (B) OF THE
STATUTE. IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO.
120(1980), THE AUTHORITY HELD THAT A PROPOSAL WHICH, IN CONTRAST,
ESTABLISHED A GENERAL, NONQUANTITATIVE REQUIREMENT BY WHICH THE
APPLICATION OF THE CRITICAL ELEMENTS AND PERFORMANCE STANDARDS DEVELOPED
BY AGENCY MANAGEMENT COULD SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE BY
AN EMPLOYEE WHO BELIEVED HE OR SHE HAD BEEN ADVERSELY AFFECTED BY THE
APPLICATION OF THOSE CRITICAL ELEMENTS AND PERFORMANCE STANDARDS TO HIM
OR HER WAS WITHIN THE DUTY TO BARGAIN.
THE DECISION IN BUREAU OF THE PUBLIC DEBT IS CONTROLLING AS TO THE
DISPUTED PORTION OF THE PROPOSAL IN THE PRESENT CASE BECAUSE THAT PART
OF THE PROPOSAL EXPRESSLY WOULD PRECLUDE THE AGENCY FROM ESTABLISHING
PARTICULAR CRITICAL ELEMENTS, I.E., THOSE WHICH ARE NOT BASED ON
GRADE-CONTROLLING FACTORS FOR A PARTICULAR JOB. SUCH A LIMITATION WOULD
DIRECTLY PREVENT MANAGEMENT FROM EXERCISING ITS STATUTORY AUTHORITY TO
DIRECT EMPLOYEES AND ASSIGN WORK BY ESTABLISHING THE CRITICAL ELEMENTS
OF POSITIONS. SIMILARLY, THE PROPOSAL AT ISSUE HEREIN IS
DISTINGUISHABLE FROM THE ONE HELD TO BE WITHIN THE DUTY TO BARGAIN IN
AFGE, LOCAL 32. IN THE PRESENT CASE, THE PROPOSAL WOULD NOT MERELY
PRESCRIBE GENERAL, NONQUANTITATIVE CRITERIA UNDER WHICH AN ARBITRATOR
COULD REVIEW APPLICATION TO AN EMPLOYEE OF A PERFORMANCE STANDARD
ESTABLISHED BY AGENCY MANAGEMENT. RATHER, AS ALREADY STATED, IT WOULD
PRECLUDE MANAGEMENT FROM IDENTIFYING AND ESTABLISHING AS A CRITICAL
ELEMENT ANY JOB ELEMENT WHICH IS NOT GRADE-CONTROLLING. THUS, FOR THE
REASONS MORE FULLY SET FORTH IN BUREAU OF THE PUBLIC DEBT, THE INSTANT
PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN.
UNION PROPOSAL 2
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 EMPLOYEES IN
IMPROVING PERFORMANCE TO THE
LEVEL REQUIRED. (ONLY THE UNDERSCORED PORTION OF THIS PROPOSAL HAS
BEEN ALLEGED TO BE OUTSIDE
THE DUTY TO BARGAIN.)
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTION OF THE
UNION'S PROPOSAL IS, AS ALLEGED BY THE AGENCY, INCONSISTENT WITH LAW AND
GOVERNMENT-WIDE RULES OR REGULATIONS AND, THEREFORE, EXCLUDED FROM THE
OBLIGATION TO BARGAIN UNDER SECTION 7117(A)(1) OF THE STATUTE.
CONCLUSION AND ORDER: TO THE EXTENT THE PROPOSAL PRESCRIBES PERIODIC
APPRAISAL OF EMPLOYEES ON AN ANNUAL BASIS IT IS CONSISTENT WITH LAW AND
GOVERNMENT-WIDE RULES OR REGULATIONS AND, THEREFORE, IS WITHIN THE DUTY
TO BARGAIN. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R. 48575, IT IS
ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
THE PARTIES) BARGAIN CONCERNING THE SUBJECT PROPOSAL EXCEPT AS INDICATED
BELOW. /3/ THE REMAINING PART OF THE UNDERSCORED PORTION OF THE UNION'S
PROPOSAL IS INCONSISTENT WITH SECTION 7106(A)(2)(A) AND (B) OF THE
STATUTE TO THE EXTENT THAT IT INCORPORATES BY REFERENCE THE REQUIREMENTS
OF UNION PROPOSAL 1, HELD TO BE OUTSIDE THE DUTY TO BARGAIN AT PAGE 2 OF
THIS DECISION. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R.
48575), IT IS ORDERED THAT THE UNION'S APPEAL BE DISMISSED TO THAT
EXTENT.
REASONS: ON ITS FACE AND AS INTERPRETED BY THE UNION THE PROPOSAL
PRINCIPALLY IS CONCERNED WITH THE FREQUENCY OF THE "PERIODIC" APPRAISALS
OF JOB PERFORMANCE REQUIRED UNDER SECTION 4302 OF TITLE 5 OF THE UNITED
STATES CODE, AS AMENDED BY THE CIVIL SERVICE REFORM ACT. /4/ THE
PROPOSAL WOULD REQUIRE, IN THIS REGARD, AN ANNUAL RATING.
THE AGENCY INTERPRETS THE PROPOSAL, HOWEVER, AS LIMITING MANAGEMENT'S
RIGHT TO PERIODICALLY APPRAISE AN EMPLOYEE'S PERFORMANCE AND, WHERE
NECESSARY, TO TAKE APPROPRIATE ACTION UNDER LAW, 5 U.S.C. 4303, AND
IMPLEMENTING REGULATIONS. /5/
THE AGENCY'S CHARACTERIZATION OF THE PROPOSAL CANNOT BE SUSTAINED.
THE PROPOSAL DOES NOT IN ANY MANNER PURPORT TO PROHIBIT AGENCY
MANAGEMENT FROM TAKING ACTION CONSISTENT WITH APPLICABLE LAWS AND
REGULATIONS AT ANY TIME THE AGENCY DETERMINES THAT AN EMPLOYEE'S
PERFORMANCE WARRANTS SUCH ACTION. THE PROPOSAL SIMPLY DOES NOT ADDRESS
SUCH MATTERS.
RATHER, AS INDICATED, THE PROPOSAL MERELY REQUIRES THAT EMPLOYEE
PERFORMANCE APPRAISALS BE CONDUCTED ON AN ANNUAL BASIS. IN THIS REGARD,
5 U.S.C. 4302(A)(1), SUPRA, NOTE 4, REQUIRES THAT PERFORMANCE APPRAISAL
SYSTEMS PROVIDE FOR PERIODIC APPRAISAL OF EMPLOYEE JOB PERFORMANCE BUT
DOES NOT SPECIFY THE FREQUENCY WITH WHICH SUCH APPRAISALS MUST OCCUR.
SIMILARLY, THE IMPLEMENTING REGULATIONS OF THE OFFICE OF PERSONNEL
MANAGEMENT (OPM), IN PARTICULAR, 5 CFR 430.203(E), INDICATE THAT EACH
AGENCY HAS DISCRETION IN ESTABLISHING THE FREQUENCY OF THE PERIODIC
APPRAISAL REQUIRED IN AN APPRAISAL SYSTEM UNDER 5 U.S.C. 4302. IN THIS
REGARD, THE OPM REGULATIONS STATE AS FOLLOWS:
SEC. 430.203 THE PERFORMANCE APPRAISAL PROCESS.
* * * *
(E) 5 U.S.C. 4302 REQUIRES THAT EACH APPRAISAL SYSTEM SHALL PROVIDE
FOR PERIODIC APPRAISALS
OF PERFORMANCE. EMPLOYEES SHALL GENERALLY BE APPRAISED ON AT LEAST
AN ANNUAL BASIS. AGENCIES
MAY PROVIDE FOR LONGER APPRAISAL PERIODS WHEN DUTIES AND
RESPONSIBILITIES OF A POSITION OR THE
TOUR OF DUTY OF A POSITION SO WARRANT.
THUS, UNDER BOTH LAW AND OPM REGULATIONS THE FREQUENCY OF PERIODIC
PERFORMANCE APPRAISALS IS A MATTER WITHIN THE DISCRETION OF THE AGENCY.
HENCE, TO THE EXTENT THAT THE PROPOSAL WOULD ESTABLISH SUCH FREQUENCY,
I.E., PROVIDES FOR ANNUAL PERFORMANCE APPRAISALS, IT IS NOT INCONSISTENT
WITH, BUT MERELY IMPLEMENTS, THE REQUIREMENTS OF LAW AND REGULATION FOR
PERIODIC APPRAISALS AND DOES NOT PREVENT MANAGEMENT FROM TAKING
APPROPRIATE ACTION UNDER LAW. IN THIS RESPECT, THEREFORE, CONTRARY TO
THE POSITION OF THE AGENCY, THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN.
FINALLY, UNION PROPOSAL 2 PROVIDES THAT CRITICAL ELEMENTS OF A
POSITION SHALL BE IDENTIFIED BY AGENCY MANAGEMENT IN ACCORDANCE WITH
SECTION 1, I.E., HEREIN, UNION PROPOSAL 1, SUPRA. TO THE EXTENT THAT
SECTION 1 HAS BEEN DETERMINED TO BE OUTSIDE THE DUTY TO BARGAIN UNDER
SECTION 7106 OF THE STATUTE, SECTION 3, I.E., UNION PROPOSAL 2, IS
LIKEWISE OUTSIDE THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE.
UNION PROPOSAL 3
SECTION 4. THERE SHALL BE NO SECRET STUDIES BEARING ON PERFORMANCE
APPRAISALS. ALL
STUDIES CONDUCTED BY THE CORPORATION WILL BE CONDUCTED ON TYPICAL
WORKERS UNDER NORMAL WORKING
CONDITIONS. THE UNION SHALL PARTICIPATE ON AN EQUAL BASIS IN THE
DEVELOPMENT OR REVISIONS 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 IMPASSES 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.)
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTION OF THE
UNION'S PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE OR, AS
ALLEGED BY THE AGENCY, THE PROPOSAL VIOLATES SECTION 7106 OF THE
STATUTE.
OPINION
CONCLUSION AND ORDER: THE UNDERSCORED PORTION OF THE PROPOSAL WOULD
REQUIRE NEGOTIATION ON THE CONTENT OF PERFORMANCE STANDARDS AND,
THEREFORE, VIOLATES SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R. 48575), IT IS ORDERED
THAT THE PETITION FOR REVIEW OF THE UNDERSCORED PORTION OF THE DISPUTED
PROPOSAL BE DISMISSED.
REASONS: THE UNDERSCORED PORTION OF UNION PROPOSAL 3 WOULD REQUIRE
BARGAINING TO IMPASSE CONCERNING THE PARTICULAR PERFORMANCE STANDARDS TO
BE ESTABLISHED FOR EMPLOYEES IN THE BARGAINING UNIT. CONSEQUENTLY, THAT
PORTION OF THE PROPOSAL BEARS NO MATERIAL DIFFERENCE IN ITS EFFECT FROM
THE PROPOSAL WHICH WAS BEFORE THE AUTHORITY IN BUREAU OF THE PUBLIC
DEBT, SUPRA, PAGE 3. IN THAT DECISION, THE AUTHORITY HELD THAT A
PROPOSAL TO ESTABLISH A PARTICULAR CRITICAL ELEMENT AND PERFORMANCE
STANDARD WAS INCONSISTENT WITH MANAGEMENT'S RIGHTS TO DIRECT EMPLOYEES
AND TO ASSIGN WORK UNDER SECTION 1706(A)(2)(A) AND (B) OF THE STATUTE
AND, THEREFORE, WAS NOT WITHIN THE DUTY TO BARGAIN. THEREFORE, FOR THE
REASONS FULLY SET FORTH IN BUREAU OF THE PUBLIC DEBT, THE PROPOSAL HERE
IN DISPUTE, TO THE EXTENT THAT IT WOULD REQUIRE NEGOTIATIONS ON
PARTICULAR PERFORMANCE STANDARDS AND CRITICAL ELEMENTS, MUST ALSO BE
HELD TO BE OUTSIDE THE DUTY TO BARGAIN.
UNION PROPOSAL 4
SECTION 6. ANY DISPUTES UNDER THIS ARTICLE MAY BE RESOLVED UNDER THE
NEGOTIATED GRIEVANCE
PROCEDURE INCLUDING BUT NOT LIMITED TO:
1. CHALLENGES TO CRITICAL ELEMENTS OF 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. (ONLY THE UNDERSCORED PORTIONS OF THIS
PROPOSAL HAVE BEEN ALLEGED
TO BE OUTSIDE THE DUTY TO BARGAIN.)
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTIONS OF THE
UNION'S PROPOSAL ARE INCONSISTENT WITH LAW AND GOVERNMENT-WIDE
REGULATION.
OPINION
CONCLUSION AND ORDER: SUBSECTIONS 1 AND 2 OF THE UNION'S PROPOSAL
ARE INCONSISTENT WITH LAW, I.E., SECTION 7106 OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R. 48575), IT IS ORDERED
THAT THE PETITION FOR REVIEW AS TO SUBSECTIONS 1 AND 2 OF THE DISPUTED
PROPOSAL BE DISMISSED. HOWEVER, SUBSECTION 4 OF UNION PROPOSAL 4
RELATES TO THE ADVERSE AFFECT ON EMPLOYEES OF THE EXERCISE OF
MANAGEMENT'S RIGHTS, I.E., THE APPLICATION OF CRITICAL ELEMENTS AND
PERFORMANCE STANDARDS ESTABLISHED BY MANAGEMENT, WITHIN THE MEANING OF
SECTION 7106(B)(3) OF THE STATUTE AND, THUS, IS NOT EXCLUDED BY LAW FROM
THE SCOPE OF A NEGOTIATED GRIEVANCE PROCEDURE; NOR IS IT OTHERWISE
CONTRARY TO LAW AND GOVERNMENT-WIDE REGULATION. ACCORDINGLY, PURSUANT
TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.10, AS AMENDED BY 45 F.R. 48575), IT IS ORDERED THAT THE AGENCY
SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
CONCERNING SUBSECTION 4 OF THE UNION'S PROPOSAL. /6/
REASONS: UNION PROPOSAL 4, INSOFAR AS DISPUTED HEREIN, WOULD EXTEND
THE COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE TO THE AGENCY'S
IDENTIFICATION OF THE CRITICAL ELEMENTS OF A POSITION AND ESTABLISHMENT
OF PERFORMANCE STANDARDS, AND TO ANY ACTION TAKEN PURSUANT TO THE
APPLICATION OF SUCH CRITICAL ELEMENTS AND PERFORMANCE STANDARDS TO AN
EMPLOYEE IN A PERFORMANCE APPRAISAL. THE AGENCY ALLEGES THAT THE
UNION'S PROPOSAL IS CONTRARY TO SECTION 7106 OF THE STATUTE. THE AGENCY
FURTHER ALLEGES THAT SUBSECTION 4 OF THE PROPOSAL, IN PARTICULAR,
VIOLATES APPLICABLE LAW AND GOVERNMENT-WIDE REGULATION BY REQUIRING ANY
ACTION TAKEN AS A RESULT OF A PERFORMANCE APPRAISAL TO BE TREATED AS ANY
OTHER DISCIPLINARY MATTER. FOR THE FOLLOWING REASONS, THE AUTHORITY
SUSTAINS THE AGENCY'S POSITION AS TO SUBSECTIONS 1 AND 2 OF THE
PROPOSAL, BUT NOT AS TO SUBSECTION 4.
CONSISTENT WITH THE LANGUAGE AND THE LEGISLATIVE HISTORY OF THE
STATUTE, THE AUTHORITY HAS HELD THAT THE SCOPE OF A NEGOTIATED GRIEVANCE
PROCEDURE SHALL EXTEND TO ALL MATTERS WHICH UNDER PROVISIONS OF LAW
COULD BE COVERED UNLESS THE PARTIES NEGOTIATE THE EXCLUSION OF SUCH
MATTERS. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
3669 AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA,
3 FLRA NO. 48(1980); AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 547, AFL-CIO AND VETERANS ADMINISTRATION MEDICAL CENTER, TAMPA,
FLORIDA, 4 FLRA NO. 50(1980). IN THIS REGARD, THE AUTHORITY DECIDED IN
NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU
OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980), THAT THE IDENTIFICATION OF
THE CRITICAL ELEMENTS OF A POSITION AND THE ESTABLISHMENT OF PERFORMANCE
STANDARDS CONSTITUTE AN EXERCISE OF THE RIGHTS OF AGENCY MANAGEMENT TO
DIRECT ITS EMPLOYEES AND TO ASSIGN WORK UNDER SECTION 7106 OF THE
STATUTE. THEREFORE, AS TO UNION PROPOSAL 4, THE QUESTION PRESENTED IS
WHETHER, IN EXTENDING THE COVERAGE OF THE GRIEVANCE PROCEDURE TO THE
AGENCY'S EXERCISE OF ITS AUTHORITY TO IDENTIFY THE CRITICAL ELEMENTS OF
A POSITION (SUBSECTION 1), TO ESTABLISH PERFORMANCE STANDARDS
(SUBSECTION 2), AND TO ANY ACTION TAKEN AS A RESULT OF A PERFORMANCE
APPRAISAL (SUBSECTION 4), THE PROPOSAL VIOLATES SECTION 7106(A)(2)(A)
AND (B) OF THE STATUTE AND THUS IS OUTSIDE THE DUTY TO BARGAIN.
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--
(1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
EMPLOYEES, AND INTERNAL
SECURITY PRACTICES OF THE AGENCY; AND
(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;
(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO
DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED(.)
* * * *
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR
POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE
TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK;
(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.
THE PLAIN LANGUAGE OF SECTION 7106 PROVIDES THAT "NOTHING" IN THE
STATUTE, I.E., 5 U.S.C. 7101 ET SEQ., SHALL "AFFECT THE AUTHORITY" OF AN
AGENCY TO EXERCISE THE RIGHTS ENUMERATED THEREIN. THEREFORE, NO
GRIEVANCE PROCEDURE COULD BE NEGOTIATED PURSUANT TO SECTION 7121 OF THE
STATUTE WHICH WOULD DENY THE AUTHORITY OF AN AGENCY TO EXERCISE ITS
STATUTORY RIGHTS UNDER SECTION 7106. /7/ SECTION 7106 ALSO PROVIDES
THAT THE RIGHTS OF AGENCY MANAGEMENT SET FORTH THEREIN ARE SUBJECT TO
THE PROVISIONS OF SECTION 7106(B), I.E., SECTION 7106(B)(2) AND (3).
HOWEVER, SUBSECTIONS 1 AND 2 OF UNION PROPOSAL 4 ARE NOT CONCERNED IN
ANY MANNER WITH PROCEDURES LEADING UP TO OR APPROPRIATE ARRANGEMENTS
FOR
EMPLOYEES ADVERSELY AFFECTED BY THE EXERCISE OF AGENCY MANAGEMENT'S
RIGHT TO IDENTIFY CRITICAL ELEMENTS AND TO ESTABLISH PERFORMANCE
STANDARDS. THUS, THE PROVISIONS OF SECTION 7106(B)(2) AND (3) ARE NOT
APPLICABLE TO THE DISPOSITION OF SUBSECTIONS 1 AND 2 OF THE PROPOSAL.
MORE PARTICULARLY, SUBSECTIONS 1 AND 2 OF UNION PROPOSAL 4, BY
PROVIDING FOR GRIEVANCES WHICH CHALLENGE THE AGENCY'S IDENTIFICATION OF
THE CRITICAL ELEMENTS OF A POSITION AND ESTABLISHMENT OF PERFORMANCE
STANDARDS, WOULD PERMIT NEGOTIATED GRIEVANCE PROCEDURES TO EXTEND TO THE
AGENCY'S EXERCISE OF ITS RIGHTS TO DIRECT EMPLOYEES AND TO ASSIGN WORK
UNDER SECTION 7106(A)(2)(A) AND (B). THESE SUBSECTIONS OF THE PROPOSAL
THEREBY WOULD SUBJECT THE AGENCY'S EXERCISE OF THESE RESERVED RIGHTS TO
ARBITRAL REVIEW AND THEREFORE TO THE POSSIBILITY OF ARBITRATORS
SUBSTITUTING THEIR JUDGMENT FOR THAT OF THE AGENCY WITH RESPECT TO THOSE
STATUTORY RIGHTS. THAT IS, SUBSECTIONS 1 AND 2 WOULD, IN EFFECT, PERMIT
ARBITRATORS TO OVERTURN THE AGENCY'S IDENTIFICATION OF CRITICAL ELEMENTS
AND ESTABLISHMENT OF PERFORMANCE STANDARDS AND TO RENDER AWARDS WHICH
WOULD REQUIRE THE AGENCY TO USE DIFFERENT CRITICAL ELEMENTS OR SET
DIFFERENT STANDARDS, CONTRARY TO THE AGENCY'S RIGHTS UNDER THE STATUTE.
THUS, BY PROVIDING FOR ARBITRAL REVIEW OF AGENCY MANAGEMENT'S
IDENTIFICATION OF CRITICAL ELEMENTS AND ESTABLISHMENT OF PERFORMANCE
STANDARDS PURSUANT TO ITS STATUTORY RIGHTS UNDER SECTION 7106, THE
PROPOSED SUBSECTIONS 1 AND 2 VIOLATE SECTION 7106 AND ARE OUTSIDE THE
DUTY TO BARGAIN.
TURNING NOW TO SUBSECTION 4, THIS PART OF THE UNION'S PROPOSAL
PROVIDES THAT THE GRIEVANCE PROCEDURE EXTENDS TO ANY ACTION TAKEN AS A
RESULT OF A PERFORMANCE APPRAISAL. AS NOTED ABOVE, SUPRA, PAGE 10,
SECTION 7106 OF THE STATUTE PROVIDES THAT AN AGENCY'S EXERCISE OF THE
MANAGEMENT RIGHTS RESERVED THEREIN IS SUBJECT TO THE PROVISIONS OF
SUBSECTION (B). THAT IS, INSOFAR AS RELEVANT HEREIN, AN AGENCY IS
OBLIGATED, UNDER SECTION 7106(B)(2), TO NEGOTIATE ON PROCEDURES IT WILL
OBSERVE IN EXERCISING ITS RESERVED RIGHTS AND, UNDER SECTION 7106(B)(3),
ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF THOSE RIGHTS. THUS, TO THE EXTENT THAT MATTERS PROPOSED FOR
INCLUSION WITHIN THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE
CONSTITUTE PROCEDURES UNDER SECTION 7106(B)(2) OR APPROPRIATE
ARRANGEMENTS UNDER SECTION 7106(B)(3) THEY ARE MATTERS WHICH UNDER LAW
CAN BE COVERED BY SUCH PROCEDURES. FOR EXAMPLE, IN AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
MANAGEMENT, WASHINGTON, D.C., 3 FLRA NO. 120(1980), THE AUTHORITY HELD A
PROPOSAL ESTABLISHING THE CRITERION "FAIR AND EQUITABLE" BY WHICH THE
APPLICATION OF CRITICAL ELEMENTS AND PERFORMANCE STANDARDS ESTABLISHED
BY MANAGEMENT COULD BE EVALUATED IN A SUBSEQUENT GRIEVANCE BY AN
EMPLOYEE WHO BELIEVED THAT HE HAD BEEN ADVERSELY AFFECTED BY THE
APPLICATION OF MANAGEMENT'S PERFORMANCE STANDARD TO HIM WAS WITHIN THE
DUTY TO BARGAIN. THUS, UNDER THE RESULT IN AFGE, LOCAL 32, AGENCY
MANAGEMENT'S RIGHT TO ESTABLISH PERFORMANCE STANDARDS AND CRITICAL
ELEMENTS WAS NOT DENIED. HOWEVER, AN EMPLOYEE COULD CHALLENGE
DISCIPLINE FOR ALLEGED FAILURE TO MEET SUCH STANDARDS THROUGH, FOR
EXAMPLE, EITHER "JUST CAUSE" LANGUAGE OF AN ESTABLISHED GRIEVANCE
PROCEDURE OR IN ACCORDANCE WITH A NEGOTIATED "FAIR AND EQUITABLE"
STANDARD.
IN THIS REGARD, SUBSECTION 4 OF UNION PROPOSAL 4 PROVIDES, AS
INDICATED, THAT THE GRIEVANCE PROCEDURE EXTENDS TO ANY ACTION TAKEN AS A
RESULT OF A PERFORMANCE APPRAISAL, I.E., TO ANY ACTION TAKEN AS A RESULT
OF THE APPLICATION OF CRITICAL ELEMENTS AND PERFORMANCE STANDARDS TO AN
EMPLOYEE COVERED BY THE PROCEDURE. THUS, SUBSECTION 4 OF UNION PROPOSAL
4 HEREIN, IN A MANNER SIMILAR TO THE PROPOSAL IN AFGE, LOCAL 32, EXTENDS
THE NEGOTIATED GRIEVANCE PROCEDURE TO MATTERS RELATING TO THE ADVERSE
EFFECT ON AN EMPLOYEE OF THE EXERCISE OF MANAGEMENT'S RIGHTS AND, THUS,
DOES NOT VIOLATE SECTION 7106 OF THE STATUTE.
AS STATED AT THE OUTSET, IN ADDITION TO ITS ALLEGATION THAT
SUBSECTION 4 OF THE PROPOSAL VIOLATES SECTION 7106 OF THE STATUTE, THE
AGENCY ARGUES SUBSECTION 4 VIOLATES APPLICABLE LAW AND GOVERNMENT-WIDE
REGULATION BY REQUIRING ANY ACTION TAKEN AS A RESULT OF A PERFORMANCE
APPRAISAL TO BE TREATED AS ANY OTHER DISCIPLINARY MATTER. THAT IS,
ACCORDING TO THE AGENCY, SUBSECTION 4 WOULD REQUIRE AN ACTION FOR
UNACCEPTABLE PERFORMANCE TO BE PROCESSED AS ANY OTHER DISCIPLINARY
ACTION, RATHER THAN UNDER THE PROVISIONS OF CHAPTER 43 OF TITLE 5 OF THE
UNITED STATES CODE SPECIFICALLY GOVERNING ACTIONS FOR UNACCEPTABLE
PERFORMANCE. /8/ THE UNION STATES IN RESPONSE THAT SUBSECTION 4 MERELY
PROVIDES, AS A PROCEDURAL MATTER CONSISTENT WITH LAW AND REGULATION,
THAT GRIEVANCES CHALLENGING ACTIONS FOR UNACCEPTABLE PERFORMANCE TAKEN
PURSUANT TO SECTION 4303, SEE, SUPRA, NOTE 5, MAY BE BROUGHT UNDER THE
CONTRACT PROVISIONS REGARDING DISCIPLINARY MATTERS.
THUS, BASED ON THE UNION'S INTERPRETATION OF ITS OWN PROPOSAL, THE
AGENCY HAS MISINTERPRETED THE EFFECT OF SUBSECTION 4. CONTRARY TO THE
AGENCY CONTENTION, THE UNION'S PROPOSAL DOES NOT REQUIRE THE UTILIZATION
OF THE NEGOTIATED GRIEVANCE PROCEDURE IN PLACE OF THE PROCEDURES
GOVERNING ACTIONS FOR UNACCEPTABLE PERFORMANCE SET FORTH IN SECTION
4303(B) - (D). RATHER, IT MERELY STATES THE PROCEDURES FOR PROCESSING A
GRIEVANCE CHALLENGING AN ACTION FOR UNACCEPTABLE PERFORMANCE AFTER THE
AGENCY HAS TAKEN SUCH ACTION IN ACCORDANCE WITH THE PROCEDURES SET FORTH
IN SECTION 4303. THAT IS, SUBSECTION 4 PROVIDES THAT WHEN AN ACTION FOR
UNACCEPTABLE PERFORMANCE PURSUANT TO SECTION 4303 IS GRIEVED UNDER THE
PROVISIONS OF THE NEGOTIATED GRIEVANCE PROCEDURE, /9/ INSTEAD OF
APPEALED TO THE MERIT SYSTEMS PROTECTION BOARD IN ACCORDANCE WITH
SECTIONS 4303(E) AND 7701 OF TITLE 5 OF THE UNITED STATES CODE, SUCH A
GRIEVANCE WILL BE TREATED UNDER THE GRIEVANCE PROCEDURE AS WOULD ANY
OTHER DISCIPLINARY ACTION. IN THIS CONNECTION, THE UNION EXPRESSLY
CONCEDES THAT AN ARBITRATOR, IN REVIEWING A GRIEVANCE FOR UNACCEPTABLE
PERFORMANCE PURSUANT TO SUBSECTION 4, WOULD BE BOUND BY THE REQUIREMENT
IN SECTION 7121(E)(2) OF THE STATUTE /10/ TO APPLY THE STANDARD SET
FORTH IN SECTION 7701(C)(1). /11/ THE AUTHORITY ADOPTS THE UNION'S
INTERPRETATION OF SUBSECTION 4. SO INTERPRETED, THE SUBSECTION IS
CONSISTENT WITH LAW AND GOVERNMENT-WIDE REGULATION AND IS WITHIN THE
DUTY TO BARGAIN.
ACCORDINGLY, FOR THE FOREGOING REASONS, SUBSECTIONS 1 AND 2 OF UNION
PROPOSAL 4 ARE OUTSIDE THE DUTY TO BARGAIN AND SUBSECTION 4 IS WITHIN
THE DUTY TO BARGAIN.
ISSUED, WASHINGTON, D.C., FEBRUARY 9, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7106 OF THE STATUTE (5 U.S.C. 7106) 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;
(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO
DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED(.)
/2/ UNION RESPONSE AT 14.
/3/ IN SO DECIDING THAT THE PROPOSAL TO THIS EXTENT IS WITHIN THE
DUTY TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSAL.
/4/ 5 U.S.C. 4302(A)(1) PROVIDES AS FOLLOWS:
SEC. 4302. ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS
(A) EACH AGENCY SHALL DEVELOP ONE OR MORE PERFORMANCE APPRAISAL
SYSTEMS WHICH--
(1) PROVIDE FOR PERIODIC APPRAISALS OF JOB PERFORMANCE OF
EMPLOYEES(.)
/5/ 5 U.S.C. 4303 PROVIDES AS FOLLOWS:
SEC. 4303. ACTIONS BASED ON UNACCEPTABLE PERFORMANCE
(A) SUBJECT TO THE PROVISIONS OF THIS SECTION, AN AGENCY MAY REDUCE
IN GRADE OR REMOVE AN
EMPLOYEE FOR UNACCEPTABLE PERFORMANCE.
(B)(1) AN EMPLOYEE WHOSE REDUCTION IN GRADE OR REMOVAL IS PROPOSED
UNDER THIS SECTION IS
ENTITLED TO--
(A) 30 DAYS' ADVANCE WRITTEN NOTICE OF THE PROPOSED ACTION WHICH
IDENTIFIES--
(I) SPECIFIC INSTANCES OF UNACCEPTABLE PERFORMANCE BY THE EMPLOYEE ON
WHICH THE PROPOSED
ACTION IS BASED; AND
(II) THE CRITICAL ELEMENTS OF THE EMPLOYEE'S POSITION INVOLVED IN
EACH INSTANCE OF
UNACCEPTABLE PERFORMANCE;
(B) BE REPRESENTED BY AN ATTORNEY OR OTHER REPRESENTATIVE;
(C) A REASONABLE TIME TO ANSWER ORALLY AND IN WRITING; AND
(D) A WRITTEN DECISION WHICH--
(I) IN THE CASE OF A REDUCTION IN GRADE OR REMOVAL UNDER THIS
SECTION, SPECIFIES THE
INSTANCES OF UNACCEPTABLE PERFORMANCE BY THE EMPLOYEE ON WHICH THE
REDUCTION IN GRADE OR
REMOVAL IS BASED, AND
(II) UNLESS PROPOSED BY THE HEAD OF THE AGENCY, HAS BEEN CONCURRED IN
BY AN EMPLOYEE WHO IS
IN A HIGHER POSITION THAN THE EMPLOYEE WHO PROPOSED THE ACTION.
(2) AN AGENCY MAY, UNDER REGULATIONS PRESCRIBED BY THE HEAD OF SUCH
AGENCY, EXTEND THE
NOTICE PERIOD UNDER SUBSECTION (B)(1)(A) OF THIS SECTION FOR NOT MORE
THAN 30 DAYS. AN AGENCY
MAY EXTEND THE NOTICE PERIOD FOR MORE THAN 30 DAYS ONLY IN ACCORDANCE
WITH REGULATIONS ISSUED
BY THE OFFICE OF PERSONNEL MANAGEMENT.
(C) THE DECISION TO RETAIN, REDUCE IN GRADE, OR REMOVE AN EMPLOYEE--
(1) SHALL BE MADE WITHIN 30 DAYS AFTER THE DATE OF EXPIRATION OF THE
NOTICE PERIOD, AND
(2) IN THE CASE OF A REDUCTION IN GRADE OR REMOVAL, MAY BE BASED ONLY
ON THOSE INSTANCES OF
UNACCEPTABLE PERFORMANCE BY THE EMPLOYEE--
(A) WHICH OCCURRED DURING THE 1-YEAR PERIOD ENDING ON THE DATE OF THE
NOTICE UNDER
SUBSECTION (B)(1)(A) OF THIS SECTION IN CONNECTION WITH THE DECISION;
AND
(B) FOR WHICH THE NOTICE AND OTHER REQUIREMENTS OF THIS SECTION ARE
COMPLIED WITH.
(D) IF, BECAUSE OF PERFORMANCE IMPROVEMENT BY THE EMPLOYEE DURING THE
NOTICE PERIOD, THE
EMPLOYEE IS NOT REDUCED IN GRADE OR REMOVED, AND THE EMPLOYEE'S
PERFORMANCE CONTINUES TO BE
ACCEPTABLE FOR 1 YEAR FROM THE DATE OF THE ADVANCE WRITTEN NOTICE
PROVIDED UNDER SUBSECTION
(B)(1)(A) OF THIS SECTION, ANY ENTRY OR OTHER NOTATION OF THE
UNACCEPTABLE PERFORMANCE FOR
WHICH THE ACTION WAS PROPOSED UNDER THIS SECTION SHALL BE REMOVED
FROM ANY AGENCY RECORD
RELATING TO THE EMPLOYEE.
(E) ANY EMPLOYEE WHO IS A PREFERENCE ELIGIBLE OR IS IN THE
COMPETITIVE SERVICE AND WHO HAS
BEEN REDUCED IN GRADE OR REMOVED UNDER THIS SECTION IS ENTITLED TO
APPEAL THE ACTION TO THE
MERIT SYSTEMS PROTECTION BOARD UNDER SECTION 7701 OF THIS TITLE.
(F) THIS SECTION DOES NOT APPLY TO--
(1) THE REDUCTION TO THE GRADE PREVIOUSLY HELD OF A SUPERVISOR OR
MANAGER WHO HAS NOT
COMPLETED THE PROBATIONARY PERIOD UNDER SECTION 3321(A)(2) OF THIS
TITLE,
(2) THE REDUCTION IN GRADE OR REMOVAL OF AN EMPLOYEE IN THE
COMPETITIVE SERVICE WHO IS
SERVING A PROBATIONARY OR TRIAL PERIOD UNDER AN INITIAL APPOINTMENT
OR WHO HAS NOT COMPLETED 1
YEAR OF CURRENT CONTINUOUS EMPLOYMENT UNDER OTHER THAN A TEMPORARY
APPOINTMENT LIMITED TO 1
YEAR OR LESS, OR
(3) THE REDUCTION IN GRADE OR REMOVAL OF AN EMPLOYEE IN THE EXCEPTED
SERVICE WHO HAS NOT
COMPLETED 1 YEAR OF CURRENT CONTINUOUS EMPLOYMENT IN THE SAME OR
SIMILAR POSITIONS.
AGENCY STATEMENT OF POSITION AT 3.
/6/ IN SO DECIDING THAT SUBSECTION 4 IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THAT PART OF THE
PROPOSAL.
/7/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1603 AND NAVY EXCHANGE, NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, 3
FLRA NO. 1(1980) AT 2-3 OF THE DECISION; INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL F-61 AND PHILADELPHIA NAVAL SHIPYARD, 3 FLRA NO.
66(1980) AT 13 OF THE DECISION.
/8/ AGENCY STATEMENT OF POSITION AT 8-9.
/9/ SECTION 7121(E)(1) OF THE STATUTE (5 U.S.C. 7121(E)(1)) PROVIDES
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 GRIEVANCE 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. SIMILAR
MATTERS WHICH ARISE UNDER
OTHER PERSONNEL SYSTEMS APPLICABLE TO EMPLOYEES COVERED BY THIS
CHAPTER MAY, IN THE DISCRETION
OF THE AGGRIEVED EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE
PROCEDURES, IF ANY, APPLICABLE
TO THOSE MATTERS, OR UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT
NOT BOTH. AN EMPLOYEE
SHALL BE DEEMED TO HAVE EXERCISED HIS OPTION UNDER THIS SUBSECTION TO
RAISE A MATTER EITHER
UNDER THE APPLICABLE APPELLATE PROCEDURES OR UNDER THE NEGOTIATED
GRIEVANCE PROCEDURE AT SUCH
TIME AS THE EMPLOYEE TIMELY FILES A NOTICE OF APPEAL UNDER THE
APPLICABLE APPELLATE PROCEDURES
OR TIMELY FILES A GRIEVANCE IN WRITING IN ACCORDANCE WITH THE
PROVISIONS OF THE
PARTIES' NEGOTIATED GRIEVANCE PROCEDURE, WHICHEVER EVENT OCCURS
FIRST.
/10/ SECTION 7121(E)(2) OF THE STATUTE (5 U.S.C. 7121(E)(2)) PROVIDES
AS FOLLOWS:
SEC. 7121. GRIEVANCE PROCEDURES
* * * *
(E)(2) IN MATTERS COVERED UNDER SECTIONS 4303 AND 7512 OF THIS TITLE
WHICH HAVE BEEN RAISED
UNDER THE NEGOTIATED GRIEVANCE PROCEDURE IN ACCORDANCE WITH THIS
SECTION, AN ARBITRATOR SHALL
BE GOVERNED BY SECTION 7701(C)(1) OF THIS TITLE, AS APPLICABLE.
/11/ 5 U.S.C. 7701(C)(1) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 7701. APPELLATE PROCEDURES
* * * *
(C)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DECISION OF
THE AGENCY SHALL BE
SUSTAINED UNDER SUBSECTION (B) ONLY IF THE AGENCY'S DECISION--
(A) IN THE CASE OF AN ACTION BASED ON UNACCEPTABLE PERFORMANCE
DESCRIBED IN SECTION 4303 OF
THIS TITLE, IS SUPPORTED BY SUBSTANTIAL EVIDENCE(.)
UNION RESPONSE AT 22 OF PART I.