Professional Air Traffic Controllers Organization (Union) and Federal Aviation Administration (Agency) (Authority decision, May 29, 1981)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116; this decision does not state that it involves one.

Plain-English summary

The FAA changed an aviation safety reporting program that had provided certain immunity from discipline, and a union won an arbitration order restoring the earlier version for controllers. The Authority held that a complete restoration would block management’s statutory right to discipline employees. It struck that remedy sentence and sustained the rest of the award.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(A), 5 U.S.C. § 7122(a).
• Outcome: Status quo restoration sentence removed; award otherwise sustained.
• Key point: An arbitration remedy could not entirely prevent the agency from exercising its discipline authority.

Full text (FLRA public release)

[ v05 p763 ]

05:0763(101)AR

The decision of the Authority follows:

5 FLRA No. 101

PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION
Union

and

FEDERAL AVIATION ADMINISTRATION
Agency

Case No. 0-AR-100

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR JOSEPH M. STONE FILED BY THE AGENCY UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).

ACCORDING TO THE ARBITRATOR, THIS GRIEVANCE AROSE WHEN THE AGENCY,
THE FEDERAL AVIATION ADMINISTRATION (FAA), CHANGED ITS AVIATION SAFETY
REPORTING PROGRAM (ASRP) WITHOUT NEGOTIATING THE CHANGES WITH THE UNION,
THE PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO). IN APRIL
1975, THE FAA PUBLISHED A NOTICE IN THE FEDERAL REGISTER ESTABLISHING
THE ASRP "TO STIMULATE THE FREE AND UNRESTRICTED FLOW OF INFORMATION
CONCERNING DEFICIENCIES IN THE AVIATION SYSTEM . . . (AND) TO INSURE THE
SAFEST POSSIBLE SYSTEM BY IDENTIFYING AND CORRECTING UNSAFE CONDITIONS
BEFORE THEY LEAD TO ACCIDENTS." TO INSURE THIS UNRESTRICTED FLOW OF
INFORMATION FROM PILOTS, AIR TRAFFIC CONTROLLERS, AND OTHERS UTILIZING
THE AVIATION SYSTEM, THE ASRP PROVIDED THAT IF ANYONE INVOLVED IN A
VIOLATION OF FEDERAL AVIATION REGULATIONS OR FAA DIRECTIVES COVERED BY
THE PROGRAM FILED A TIMELY REPORT OF THE VIOLATION WITH THE FAA, THE
ADMINISTRATOR WOULD WAIVE DISCIPLINARY ACTION. HOWEVER, VIOLATIONS WITH
RESPECT TO RECKLESS OPERATIONS, CRIMINAL OFFENSES, GROSS NEGLIGENCE,
WILLFUL MISCONDUCT, OR ACCIDENTS WERE EXPRESSLY EXCLUDED FROM THE
PROGRAM. THE NOTICE FURTHER STATED THAT THE ASRP "WILL BE CONSTANTLY
MONITORED TO DETERMINE ITS EFFECTIVENESS AND WILL BE CLARIFIED,
MODIFIED, OR EXPANDED AS NECESSARY."

IN JULY 1975, PATCO AND FAA ENTERED INTO A COLLECTIVE BARGAINING
AGREEMENT WHICH PROVIDED THAT BARGAINING UNIT EMPLOYEES WOULD NOT BE
SUBJECT TO DISCIPLINARY ACTION IF THE REQUIREMENTS OF THE ASRP AS
PUBLISHED IN APRIL 1975 WERE MET. /1/ THIS PROVISION WAS KNOWN AS THE
"IMMUNITY PROGRAM" AND WAS INCORPORATED INTO A SUBSEQUENT COLLECTIVE
BARGAINING AGREEMENT BETWEEN THE PARTIES WHICH BECAME EFFECTIVE MARCH
15, 1978, AND REQUIRED THE IMMUNITY FROM AND WAIVER OF THE RIGHT OF FAA
TO TAKE DISCIPLINARY ACTION TO BE IN EFFECT FOR THREE YEARS. IN 1979,
THE FAA NOTIFIED PATCO THAT THE ASRP WOULD BE MODIFIED TO PROVIDE THAT
THE FOLLOWING CATEGORIES OF INCIDENTS WOULD NOT BE COVERED BY THE ASRP:

1. SYSTEM ERRORS OCCURRING ON AIRPORT MOVEMENT AREAS.

2. A CONTROLLER PERMITTING A FLIGHT TO OPERATE INTO ANOTHER
   CONTROLLER'S ASSIGNED AIRSPACE

WITHOUT PRIOR APPROVAL.

3. FAILURE TO MAINTAIN PERTINENT DATA, SUCH AS ALPHA NUMERIC AND
   FLIGHT DATA STRIP

INFORMATION.

4. INCOMPLETE/IMPROPER POSITION RELIEF BRIEFING. THE 1979
   MODIFICATIONS ALSO PROVIDED THAT IF VIOLATIONS OF LAW, FEDERAL AVIATION
   REGULATIONS, OR FAA POLICIES, PROCEDURES, OR ORDERS WERE FOUND, FAA
   WOULD NOT WAIVE DISCIPLINARY ACTION UNLESS CERTAIN SPECIFIC CONDITIONS
   HAD BEEN MET IN ADDITION TO FILING A REPORT UNDER THE ASRP.
   ADDITIONALLY, THE MODIFICATIONS PROVIDED THAT IF A VIOLATION OF FEDERAL
   AVIATION REGULATIONS CAME TO THE ATTENTION OF FAA FROM SOURCES OTHER
   THAN A REPORT FILED UNDER THE ASRP, APPROPRIATE ACTION WOULD BE TAKEN.
   IN RESPONSE TO THESE CHANGES, PATCO FILED A GRIEVANCE THAT WAS
   ULTIMATELY SUBMITTED TO ARBITRATION. IN ITS GRIEVANCE PATCO ALLEGED
   THAT THE FAA VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT WHEN
   IT CHANGED THE "IMMUNITY PROGRAM" (ARTICLE 70) UNILATERALLY, AND PATCO
   ASKED THE ARBITRATOR TO RESTORE THE STATUS QUO ANTE.

THE ARBITRATOR STATED THE ISSUE AS FOLLOWS:

(E)VEN IF THE CHANGES WERE 100% CORRECT, THE QUESTION HERE TO BE
DETERMINED IS WHETHER THEY

WERE CONTRACTUALLY PROHIBITED UNDER ARTICLE 70 TO BE MADE
UNILATERALLY WITHOUT NEGOTIATION

WITH PATCO. ON THE BASIS OF THE RECORD BEFORE HIM AND AFTER
CONSIDERING THE NEGOTIATING HISTORY WHICH RESULTED IN ARTICLE 70, THE
ARBITRATOR RULES THAT THE "SCOPE OF THE IMMUNITY PROGRAM FOR AIR TRAFFIC
CONTROLLERS, THAT IS, THE INCIDENTS TO BE COVERED AND THE WAIVER OF
DISCIPLINARY ACTION, CAN BE MODIFIED ONLY THROUGH NEGOTIATIONS BETWEEN
FAA AND PATCO." ACCORDINGLY, HE ISSUED THE FOLLOWING AWARD:

TO THE EXTENT THAT THE IMMUNITY PROGRAM HAS BEEN REDUCED BY THE 1979

"MODIFICATIONS" THROUGH UNILATERAL ACTION BY THE FAA, THERE HAS BEEN
A VIOLATION OF ARTICLE

70. THE FAA IS DIRECTED TO RESTORE, INSOFAR AS AIR TRAFFIC
    CONTROLLERS ARE CONCERNED,

PRECISELY THE SAME IMMUNITY WHICH SUCH EMPLOYEES ENJOYED JUST PRIOR
TO THE ISSUANCE OF THE

1979 "MODIFICATIONS."

THE AGENCY FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
2425). THE UNION FILED AN OPPOSITION.

IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD VIOLATES SECTION
7106(A)(2)(A) OF THE STATUTE /3/ IN THAT IT PROHIBITS MANAGEMENT FROM
EXERCISING ITS RESERVED RIGHT TO SUSPEND, REMOVE, REDUCE IN GRADE OR
PAY, OR TAKE OTHER DISCIPLINARY ACTION AGAINST CERTAIN EMPLOYEES. THE
AGENCY'S POSITION IN SUPPORT OF ITS EXCEPTION IS THAT THE AWARD WILL
PREVENT THE FAA FROM DISCIPLINING EMPLOYEES FOR A WIDE RANGE OF
VIOLATIONS OF LAW, REGULATIONS, AND AGENCY PROCEDURES AND POLICIES. IN
PARTICULAR, THE AGENCY MAINTAINS THAT THE ARBITRATOR ESSENTIALLY
DETERMINED THAT MANAGEMENT NEGOTIATED AWAY FOR THE TERM OF THE
COLLECTIVE BARGAINING AGREEMENT ITS RIGHT TO TAKE CERTAIN DISCIPLINARY
ACTION, AND THE AGENCY ARGUES THAT THIS DETERMINATION IS CONTRARY TO
SECTION 7106(A) OF THE STATUTE. THE AGENCY FURTHER ASSERTS THAT AN
ARBITRATION AWARD WHICH INTERPRETS AN AGREEMENT PROVISION SO AS TO
INTERFERE WITH OR PRECLUDE THE EXERCISE OF A SECTION 7106(A) RIGHT IS
UNENFORCEABLE AND MUST BE OVERTURNED. FINALLY, THE AGENCY ARGUES THAT
ARTICLE 70, AS INTERPRETED BY THE ARBITRATOR, PREVENTS MANAGEMENT FROM
ACTING AT ALL TO DISCIPLINE EMPLOYEES FOR OPERATIONAL ERRORS THAT DO NOT
INVOLVE CRIMINAL OFFENSES, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR
ACCIDENTS, AND THEREFORE IT DOES NOT INVOLVE A PROCEDURE TO BE USED ONCE
MANAGEMENT MAKES THE DECISION TO IMPOSE DISCIPLINE.

IN ITS OPPOSITION TO THE AGENCY'S EXCEPTION, THE UNION PRINCIPALLY
ARGUES THAT THE AWARD IS NOT AN INFRINGEMENT UPON MANAGEMENT'S SECTION
7106(A)(2)(A) RIGHT TO DISCIPLINE. PRIMARILY, THE UNION MAINTAINS THAT
ALTHOUGH MANAGEMENT HAS THE RIGHT TO DISCIPLINE, THE GROUNDS ON WHICH
DISCIPLINE MAY LAWFULLY BE BASED ARE SUBJECT TO PROVISIONS OF COLLECTIVE
BARGAINING AGREEMENTS NEGOTIATED BY THE PARTIES PURSUANT TO THEIR DUTY
TO BARGAIN UNDER THE STATUTE. IN THIS RESPECT THE UNION FURTHER
MAINTAINS THAT THE IMMUNITY PROGRAM PROVISION WAS AGREED TO BY
MANAGEMENT FOR GOOD AND SUFFICIENT REASONS. ALTERNATIVELY, THE UNION
ARGUES THAT ANY LIMITATION ON MANAGEMENT'S RIGHT TO DISCIPLINE IS NOT
CONTRARY TO SECTION 7106 BECAUSE THE AWARD AND THE IMMUNITY PROGRAM
PROVISION ONLY CONCERN PROCEDURES IN ACCORDANCE WITH SECTION 7106(B)(2)
OF THE STATUTE THAT MUST BE FOLLOWED BEFORE DISCIPLINE CAN BE IMPOSED.
THE UNION CLAIMS THAT MANAGEMENT IS NOT PREVENTED FROM ACTING WITH
RESPECT TO DISCIPLINE BECAUSE AN AIR TRAFFIC CONTROLLER MAY BE
DISCIPLINED IF THAT CONTROLLER DID NOT COMPLY WITH THE IMMUNITY PROGRAM
REQUIREMENTS.

THE UNION ADDITIONALLY ARGUES THAT EVEN IF THE AWARD WERE IN SOME WAY
CONTRARY TO A LITERAL READING OF SECTION 7106, THIS INFRINGEMENT MUST BE
WEIGHED AGAINST OTHER FACTORS. IN THIS CASE THE UNION MAINTAINS THAT
THE EFFECT OF ANY INFRINGEMENT ON MANAGEMENT'S RIGHT TO DISCIPLINE IS
OFFSET BY THE COUNTERVAILING BENEFITS TO MANAGEMENT. THE UNION ALSO
ASSERTS THAT MANAGEMENT SHOULD BE HELD TO HAVE WAIVED ITS SECTION 7106
DEFENSE AND SHOULD BE ESTOPPED FROM RAISING IT AS AN EXCEPTION TO THE
AWARD BECAUSE MANAGEMENT FAILED TO RAISE IT AT ARBITRATION.

THE AGENCY'S EXCEPTION THAT THE AWARD VIOLATES SECTION 7106(A)(2)(A)
OF THE STATUTE STATES A GROUND UPON WHICH THE AUTHORITY WILL FIND AN
AWARD DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE. FOR THE
REASONS THAT FOLLOW, WE FIND THAT THE ARBITRATOR'S AWARD IN THIS CASE IS
DEFICIENT BECAUSE IT IS CONTRARY TO SECTION 7106(A)(2)(A). AS WAS
NOTED, THE ARBITRATOR'S AWARD IN THIS CASE HAS DIRECTED THAT THE
AGENCY'S 1979 CHANGES TO THE IMMUNITY PROGRAM BE RESCINDED AS TO AIR
TRAFFIC CONTROLLERS AND THAT THE PROGRAM AS IT EXISTED BEFORE THESE
CHANGES BE RESTORED. BECAUSE THIS STATUS QUO ANTE REMEDY SO INTERFERES
WITH THE EXERCISE BY THE AGENCY OF ITS RIGHT TO TAKE DISCIPLINARY ACTION
AGAINST ITS EMPLOYEES, THE AWARD IN THIS RESPECT IS CONTRARY TO SECTION
7106 OF THE STATUTE AND MUST BE MODIFIED ACCORDINGLY.

THE AUTHORITY HAS HELD THAT THE PLAIN LANGUAGE OF SECTION 7106
PROVIDES THAT "NOTHING" IN THE STATUTE SHALL "AFFECT THE AUTHORITY" OF
AN AGENCY TO EXERCISE THE RIGHTS ENUMERATED IN THAT SECTION. /4/
PURSUANT TO THIS PLAIN LANGUAGE, NO ARBITRATION AWARD UNDER A NEGOTIATED
GRIEVANCE PROCEDURE MAY INTERPRET OR ENFORCE A PROVISION OF A COLLECTIVE
BARGAINING AGREEMENT SO AS TO DENY AN AGENCY THE AUTHORITY TO EXERCISE
ITS RIGHTS UNDER SECTION 7106 OF THE STATUTE. ACCORDINGLY, THE RIGHTS
RESERVED TO MANAGEMENT MAY NOT BE INFRINGED BY AN AWARD OF AN ARBITRATOR
AND MAY NOT BE WAIVED OR RELINQUISHED BY AN AWARD OF AN ARBITRATOR.
THUS, CONTRARY TO THE ARGUMENT OF THE UNION, INFRINGEMENT ON THE
AGENCY'S RIGHT TO TAKE DISCIPLINARY ACTION IS NOT TO BE WEIGHED AGAINST
OTHER FACTORS. AS WAS EMPHASIZED, THE PLAIN LANGUAGE OF SECTION 7106 IS
THAT NOTHING SHALL AFFECT THE RIGHT OF THE AGENCY TO ACT IN THIS
RESPECT. LIKEWISE, ALSO CONTRARY TO THE ARGUMENT OF THE UNION, THE
AGENCY CANNOT HAVE WAIVED ITS RIGHT TO TAKE DISCIPLINARY ACTION AGAINST
ITS EMPLOYEES AND ITS EXCEPTION THAT THE AWARD IS CONTRARY TO SECTION
7106 IS THEREFORE PROPERLY BEFORE THE AUTHORITY UNDER THE STATUTE.

UNDER THE LANGUAGE OF SECTION 7106(A)(2)(A) OF THE STATUTE, IT IS
CLEAR THAT MANAGEMENT HAS THE RIGHT TO TAKE DISCIPLINARY ACTION AGAINST
ITS EMPLOYEES. IN THIS CASE, THE ARBITRATOR'S AWARD, BY ENFORCING THE
IMMUNITY PROGRAM PROVISION WITHOUT THE AGENCY'S CHANGES, PREVENTS THE
AGENCY'S EXERCISE OF ITS STATUTORY RIGHT TO TAKE DISCIPLINARY ACTION
AGAINST ITS EMPLOYEES. THE AWARD DENIES THE AGENCY ITS RIGHT TO TAKE
DISCIPLINARY ACTION WITH RESPECT TO THE CATEGORIES OF INCIDENTS COVERED
BY THE IMMUNITY PROGRAM AS SET FORTH IN THE AGREEMENT AND REQUIRES
INSTEAD THAT THE AGENCY CONTINUE TO GRANT IMMUNITY FROM DISCIPLINARY
ACTION TO ALL AIR TRAFFIC CONTROLLERS WHO COMPLY WITH THE REQUIREMENTS
OF THE PROGRAM. THE AWARD THEREFORE CONSTITUTES AN ABSOLUTE PROHIBITION
AGAINST DISCIPLINE OF AN AIR TRAFFIC CONTROLLER FOR THE INCIDENTS
SPECIFIED IN THE IMMUNITY PROVISION IF THE CONTROLLER HAS MET THE
REQUIREMENTS OF THE PROGRAM. THUS, THIS AWARD DIRECTLY INTERFERES WITH
THE RIGHT OF THE AGENCY TO TAKE DISCIPLINARY ACTION AND CONSEQUENTLY IS
CONTRARY TO SECTION 7106(A)(2)(A) OF THE STATUTE.

AS WAS NOTED, THE UNION HAS ALSO ARGUED THAT THE AWARD IS NOT
CONTRARY TO SECTION 7106 BECAUSE THE AWARD AND THE IMMUNITY PROGRAM
PROVISION ONLY CONCERN PROCEDURES IN ACCORDANCE WITH SECTION 7106(B)(2)
THAT MANAGEMENT MUST FOLLOW IN THE EXERCISE OF ITS RIGHT TO TAKE
DISCIPLINARY ACTION. ALTHOUGH THE RIGHTS OF MANAGEMENT SET FORTH IN
SECTION 7106(A) ARE SUBJECT TO SECTION 7106(B)(2) AND (3), /5/ THE
AUTHORITY HAS CONSISTENTLY HELD THAT THESE PROVISIONS ONLY AUTHORIZE THE
ESTABLISHMENT OF PROCEDURES OR APPROPRIATE ARRANGEMENTS TO THE EXTENT
THAT THEY DO NOT PREVENT AN AGENCY FROM ACTING AT ALL. /6/ THUS, BY
ENFORCING IMMUNITY FROM DISCIPLINARY ACTION, THE AWARD DOES NOT MERELY
CONCERN A PROCEDURE THAT MANAGEMENT WILL OBSERVE IN EXERCISING ITS
RESERVED RIGHT TO TAKE DISCIPLINARY ACTION AND DOES NOT MERELY CONCERN
AN APPROPRIATE ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY
DISCIPLINARY ACTION. /7/ INSTEAD, THE AWARD IMPROPERLY PREVENTS THE
AGENCY FROM ACTING AT ALL WITH RESPECT TO DISCIPLINING CONTROLLERS FOR
THE CATEGORIES OF INCIDENTS COVERED BY THE PROGRAM IF THE CONTROLLERS
HAVE COMPLIED WITH THE REQUIREMENTS OF THE PROGRAM. THEREFORE, THE AWARD
IS CONTRARY TO SECTION 7106 OF THE STATUTE AND MUST BE MODIFIED
ACCORDINGLY.

FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS MODIFIED BY
STRIKING THE FINAL SENTENCE WHICH READS:

THE FAA IS DIRECTED TO RESTORE, INSOFAR AS AIR TRAFFIC CONTROLLERS
ARE CONCERNED, PRECISELY

THE SAME IMMUNITY WHICH SUCH EMPLOYEES ENJOYED JUST PRIOR TO THE
ISSUANCE OF THE 1979

"MODIFICATIONS." AS SO MODIFIED, THE AWARD IS SUSTAINED. ISSUED,
WASHINGTON, D.C., MAY 29, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ ACCORDING TO THE ARBITRATOR, ARTICLE 70 PROVIDED AS FOLLOWS:

SECTION 1. THE EMPLOYER AGREES, FOR A PERIOD OF TWO YEARS BEGINNING
MAY 1, 1975, TO WAIVE

THE RIGHT TO TAKE DISCIPLINARY ACTION AGAINST ANY BARGAINING UNIT
EMPLOYEE WHO MEETS ALL THE

REQUIREMENTS OF THE AVIATION SAFETY REPORTING PROGRAM PUBLISHED BY
THE EMPLOYER ON APRIL 22,

1975, AS IT MAY BE CLARIFIED, MODIFIED OR EXPANDED FROM TIME TO TIME
BY THE EMPLOYER AT HIS

DISCRETION. THIS WAIVER DOES NOT EXTEND TO INCIDENTS NOT COVERED BY
THE PROGRAM, CRIMINAL

OFFENSES, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR ACCIDENTS.

/2/ 5 U.S.C. 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION

TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
AWARD RELATING TO A

MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW
THE AUTHORITY FINDS THAT

THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS;

THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT

CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
REGULATIONS.

/3/ 5 U.S.C. 7106(A)(2)(A) PROVIDES:

(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 SUSPEND, REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER
DISCIPLINARY ACTION

AGAINST (ITS) EMPLOYEES(.)

/4/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1968
AND DEPARTMENT OF TRANSPORTATION, SAINT LAWRENCE SEAWAY DEVELOPMENT
CORPORATION, MASSENA, NEW YORK, 5 FLRA NO. 14(1981). IT IS CLEAR THAT
CONGRESS INTENDED THAT THERE WERE "CERTAIN MATTERS ON WHICH THE PARTIES
MAY NOT NEGOTIATE UNDER ANY CIRCUMSTANCES . . ." JOINT EXPLANATORY
STATEMENT OF THE COMMITTEE ON CONFERENCE, S. REP. NO. 95-1272, 95TH
CONG., 2D SESS. 153 (1978).

/5/ 5 U.S.C. 7106(B)(2) AND (3) PROVIDES:

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND AND 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.

/6/ E.G., NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE
TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119(1980).

/7/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 15 AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NORTH
ATLANTIC REGION, 2 FLRA NO. 109(1980).