American Federation of Government Employees, National Council of EEOC Locals, No. 216, AFL-CIO (Union) and Equal Employment Opportunity, Washington, DC (Agency) (Authority decision, June 27, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

An EEOC union proposed terms about evaluating and training supervisors before discipline could be imposed. The Authority held that these matters concerned supervisory employees rather than bargaining unit employees’ conditions of employment. It sustained the agency’s nonnegotiability allegation.

Decision snapshot

• Authority: 5 U.S.C. § 7117.
• Outcome: Proposal held outside the duty to bargain.
• Key point: Supervisor evaluation and training terms were outside the union’s bargaining scope.

Full text (FLRA public release)

[ v03 p504 ]

03:0504(80)NG

The decision of the Authority follows:

3 FLRA No. 80

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL COUNCIL OF
EEOC LOCALS NO. 216, AFL-CIO
(Union)

and

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, WASHINGTON, D.C.
(Agency)

Case No. 0-NG-197

DECISION ON NEGOTIABILITY ISSUE

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 (5 U.S.C. 7101 ET SEQ.).

UNION PROPOSAL

ARTICLE 5

SECTION D.

AT LEAST ANNUALLY, EMPLOYEES SHALL HAVE THE OPPORTUNITY TO ASSESS IN
WRITING THE

PERFORMANCE OF SUPERVISORS. ASSESSMENT FORMS SHALL BE DEVELOPED
JOINTLY BY THE EMPLOYER AND

THE UNION.

SECTION H.

NO EMPLOYEE SHALL BE DISCIPLINED BY A SUPERVISOR WHO HAS NOT RECEIVED
TRAINING AS REQUIRED

BY THE FPM AND OPM REGULATIONS.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO
BARGAIN UNDER SECTION 7117 OF THE STATUTE, /1/ AS ALLEGED BY THE AGENCY.

OPINION

CONCLUSION: THE PROPOSAL IS OUTSIDE THE SCOPE OF BARGAINING UNDER
SECTION 7117 OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10
OF THE AUTHORITY'S RULES AND REGULATIONS, 45 FED.REQ. 3513(1980), THE
AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO
BARGAIN IS SUSTAINED.

REASONS: THE AGENCY CONTENDS, AMONG OTHER THINGS, THAT BOTH SECTIONS
OF THE PROPOSAL ARE OUTSIDE THE DUTY TO BARGAIN BECAUSE THE ASSESSMENT
OF SUPERVISORY PERFORMANCE AND THE TRAINING OF SUPERVISORS AS A
PRECONDITION TO THE EXERCISE OF MANAGEMENT'S RIGHT TO DISCIPLINE DO NOT
INVOLVE THE CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES. WE
AGREE WITH THE AGENCY'S CONTENTION.

IN A RECENT DECISION, NATIONAL COUNCIL OF FIELD LABOR LOCALS,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. DEPARTMENT
OF LABOR, WASHINGTON, D.C., CASE NO. O-NG-79, 3 FLRA NO. 44 (MAY 29,
1980), THE AUTHORITY FOUND NONNEGOTIABLE A PROPOSAL WHICH PERTAINED TO
THE FILLING OF SUPERVISORY AND MANAGEMENT POSITIONS WITH BARGAINING UNIT
EMPLOYEES. IN ITS DECISION, THE AUTHORITY STATED THAT:

AN EXCLUSIVE REPRESENTATIVE'S OBLIGATION AND CORRELATIVE RIGHTS . . .
EXTEND ONLY TO

EMPLOYEES IN THE UNIT, UNDER SECTION 7114(A)(1). FURTHERMORE, THE
DEFINITION OF "COLLECTIVE

BARGAINING" FOUND IN SECTION 7103(A)(12) . . . RESTRICTS THE SCOPE OF
THE OBLIGATION TO

BARGAIN IN GOOD FAITH TO MATTERS AFFECTING THE CONDITIONS OF
EMPLOYMENT OF EMPLOYEES IN AN

APPROPRIATE UNIT. CONSEQUENTLY, THE AGENCY HAS NO OBLIGATION TO
BARGAIN OVER MATTERS RELATING

TO THE NON-BARGAINING UNIT POSITIONS REFERRED TO IN THE PROPOSAL.
THUS, AS THE PROPOSAL GOES

BEYOND THE REPRESENTATION RIGHTS OF THE EXCLUSIVE REPRESENTATIVE AND
DOES NOT DIRECTLY RELATE

TO CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES, IT IS OUTSIDE THE DUTY
TO BARGAIN UNDER THE

STATUTE.

THE PROPOSAL IN THE INSTANT CASE SIMILARLY DOES NOT DIRECTLY RELATE
TO CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES. RATHER, IT RELATES TO
THE ASSESSMENT AND TRAINING OF SUPERVISORS. CONSEQUENTLY, FOR THE
REASONS STATED IN MORE DETAIL IN THE DEPARTMENT OF LABOR CASE CITED
ABOVE, THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN UNDER THE
STATUTE. ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THE DISPUTED
PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN MUST BE SUSTAINED.

ISSUED, WASHINGTON, D.C., JUNE 27, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ SECTION 7117(A)(1) OF THE STATUE PROVIDES:

SECTION 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY
TO CONSULT

(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH

SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR

REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE

OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.

THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
7103(A)(12)AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
STATUTE:

SECTION 7103. DEFINITIONS; APPLICATION

(A) FOR THE PURPOSE OF THIS CHAPTER--

. . . .

(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE

REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE

UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH

EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH

EMPLOYEES . . . .

. . . .

(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES
AND MATTERS, WHETHER

ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS . . . .