Association of Civilian Technicians, Columbine Council and The Adjutant General, Colorado (Authority decision, September 15, 1987)

Final FLRA decision. The Authority holds a proposal requiring a union representative on an appraisal review board outside the duty to bargain and dismisses the petition. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The Association of Civilian Technicians proposed a union seat on the Colorado National Guard's impartial board for employee performance appraisal appeals. The Authority found that the board's review and recommendations were part of management's process for directing employees and assigning work. Requiring union membership on the board would place the union in that decision process and inhibit management deliberations. A National Guard regulation permitting negotiation could not override the statute's management rights, so the Authority dismissed the petition.

Decision snapshot

• Authority: Management rights to direct employees and assign work under 5 U.S.C. § 7106(a)(2)(A) and (B).
• Outcome: Proposal outside the duty to bargain; petition dismissed.
• Key point: An agency regulation could not make a subject negotiable when the statute reserved it to management.

Full text (FLRA public release)

[ v28 p969 ]
28:0969(126)NG

The decision of the Authority follows:

28 FLRA NO. 126

ASSOCIATION OF CIVILIAN TECHNICIANS,
COLUMBINE COUNCIL

Union

and

THE ADJUTANT GENERAL, COLORADO

Agency

Case No. 0-NG-1408

DECISION AND ORDER ON NEGOTIABILITY ISSUE

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

FEDERAL LABOR RELATIONS AUTHORITY