American Federation of Government Employees, Local 3656 (Union) and Federal Trade Commission, Boston Regional Office, Massachusetts (Agency) (Authority decision, November 24, 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

A union proposed that the Federal Trade Commission’s Boston office develop reasonable performance standards for bargaining unit employees. The agency argued the language conflicted with management rights and agency regulations. The Authority found the proposal permissible and rejected the claimed regulatory bar. It ordered the agency to bargain on request and set aside its nonnegotiability position.

Decision snapshot

• Authority: 5 U.S.C. § 7106, 5 U.S.C. § 7117.
• Outcome: Agency nonnegotiability allegation set aside; reasonable-standards proposal negotiable.
• Key point: A general reasonableness requirement did not dictate particular performance standards.

Full text (FLRA public release)

[ v04 p702 ]

04:0702(92)NG

The decision of the Authority follows:

4 FLRA No. 92

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3656
Union

and

FEDERAL TRADE COMMISSION, BOSTON
REGIONAL OFFICE, MASSACHUSETTS
Agency

Case No. 0-NG-273

DECISION AND ORDER 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 (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).

UNION PROPOSAL

ARTICLE 9

SECTION 1. THE EMPLOYER AGREES TO DEVELOP REASONABLE PERFORMANCE
STANDARDS FOR UNIT EMPLOYEES.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE
AGENCY'S DUTY TO BARGAIN OR, AS ALLEGED BY THE AGENCY, THE PROPOSAL
WOULD VIOLATE SECTION 7106 OF THE STATUTE OR AGENCY REGULATIONS FOR
WHICH A COMPELLING NEED EXISTS.

OPINION

CONCLUSION AND ORDER: THE UNION'S PROPOSAL DOES NOT VIOLATE SECTION
7106 OF THE STATUTE OR AGENCY REGULATIONS. 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 ON THIS
PROPOSAL. /1/

REASONS: THE PROPOSAL HERE IN DISPUTE, WHICH WOULD REQUIRE THE
AGENCY TO DEVELOP "REASONABLE" PERFORMANCE STANDARDS FOR UNIT EMPLOYEES,
BEARS NO MATERIAL DIFFERENCE FROM THE UNION PROPOSAL WHICH WAS BEFORE
THE AUTHORITY IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA
NO. 120 (1980) AND HELD TO BE WITHIN THE DUTY TO BARGAIN UNDER THE
STATUTE. IN THAT CASE, THE AUTHORITY DETERMINED THAT THE UNION'S
PROPOSAL, WHICH REQUIRED THAT PERFORMANCE STANDARDS BE "FAIR AND
EQUITABLE," DID NOT VIOLATE MANAGEMENT'S RIGHTS UNDER SECTION 7106 AND
WAS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE.
THEREFORE, BASED ON THE REASONS SET FORTH IN GREATER DETAIL IN AFGE,
LOCAL 32, THE PROPOSAL HERE IN DISPUTE MUST ALSO BE HELD NOT TO VIOLATE
SECTION 7106 OF THE STATUTE.

IN ADDITION, THE AGENCY IN THE PRESENT CASE CONTENDS THAT IT HAS NO
DUTY TO BARGAIN ON THE DISPUTED PROPOSAL BECAUSE PERFORMANCE STANDARDS
"ARE BEING PRESCRIBED" ON AN AGENCY-WIDE BASIS. IN THAT RESPECT, THE
AGENCY MAKES TWO ARGUMENTS. IN ESSENCE, THE AGENCY FIRST ARGUES THAT IT
IS INAPPROPRIATE FOR NEGOTIATIONS TO PROCEED AT THE LOCAL LEVEL SINCE IT
INTENDS TO RETAIN AUTHORITY OVER SUCH MATTERS AT THE AGENCY LEVEL.
ASSUMING, AS THE AGENCY STATES, THAT AUTHORITY TO NEGOTIATE OVER SUCH
MATTERS WILL BE EXERCISED ONLY AT THE AGENCY LEVEL AND NOT AT THE LEVEL
OF THE BARGAINING UNIT HERE INVOLVED, THE AGENCY'S ALLEGATION DOES NOT
RELATE TO THE BASES FOR FINDING THAT A PROPOSAL IS NOT WITHIN THE DUTY
TO BARGAIN UNDER SECTION 7117 OF THE STATUTE, I.E., INCONSISTENCY WITH
FEDERAL LAW, GOVERNMENT-WIDE RULE OR REGULATION, OR AGENCY REGULATION
FOR WHICH A COMPELLING NEED EXISTS. RATHER, UNDER SECTION 7114(B)(2) OF
THE STATUTE, THE DUTY OF AN AGENCY TO NEGOTIATE IN GOOD FAITH INCLUDES
THE OBLIGATION "TO BE REPRESENTED AT THE NEGOTIATIONS BY DULY AUTHORIZED
REPRESENTATIVES PREPARED TO DISCUSS AND NEGOTIATE ON ANY CONDITION OF
EMPLOYMENT." THUS, THE STATUTE CLEARLY REQUIRES THE PARTIES TO PROVIDE
REPRESENTATIVES WHO ARE EMPOWERED TO NEGOTIATE AND ENTER INTO
AGREEMENTS
ON ALL MATTERS WITHIN THE SCOPE OF NEGOTIATIONS IN THE BARGAINING UNIT.
ACCORDINGLY, THE AGENCY'S CONTENTION TO THE CONTRARY MUST BE SET ASIDE.

THE AGENCY'S SECOND ARGUMENT IS THAT A COMPELLING NEED EXISTS FOR ANY
"AGENCY-WIDE DETERMINATION" UNLESS THE AUTHORITY DETERMINES TO THE
CONTRARY. UNDER SECTION 2424.11 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.11), HOWEVER, IT IS CLEAR THAT THE BURDEN IS
PLACED UPON AN AGENCY TO DEMONSTRATE THAT A COMPELLING NEED EXISTS FOR
AN AGENCY RULE OR REGULATION TO BAR NEGOTIATIONS ON A CONFLICTING
BARGAINING PROPOSAL. IN THE PRESENT CASE, THE AGENCY HAS NOT ADVERTED
TO A PARTICULAR AGENCY REGULATION WITH WHICH THE PROPOSAL CONFLICTS.
THUS, SINCE THE AGENCY HAS NOT SUPPORTED A FINDING THAT A COMPELLING
NEED EXISTS FOR AGENCY REGULATIONS TO BAR NEGOTIATIONS ON THE DISPUTED
PROPOSAL, THE AGENCY'S ARGUMENT CANNOT BE SUSTAINED.

FOR THE FOREGOING REASONS, THE PROPOSAL IN QUESTION MUST BE HELD TO
BE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.

ISSUED, WASHINGTON, D.C., NOVEMBER 24, 1980

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE PROPOSAL.