National Labor Relations Board Union and National Labor Relations Board, Office of the General Counsel (Authority decision, June 8, 1984)

Final FLRA decision. The Authority held the union's proposed conditions on performance-based demotion and removal outside the duty to bargain and dismissed the negotiability petition. An aggrieved person may seek judicial review of a final Authority order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The NLRB Union proposed that the agency reassign an employee before a performance-based grade reduction and consider a lower grade or another suitable position before removal. The Authority found that these required steps would place conditions on management's statutory right to assign, reduce in grade, or remove employees. It held the entire proposal outside the duty to bargain and dismissed the union's petition on the merits.

Decision snapshot

• Authority: Management rights under 5 U.S.C. § 7106(a)(2)(A).
• Outcome: Proposal held nonnegotiable; petition dismissed.
• Key point: Mandatory reassignment or placement before demotion or removal constrained management rights.

Full text (FLRA public release)

[ v15 p55 ]

15:0055(12)NG

The decision of the Authority follows:

15 FLRA No. 12

NATIONAL LABOR RELATIONS BOARD
UNION
Union

and

NATIONAL LABOR RELATIONS BOARD,
OFFICE OF THE GENERAL COUNSEL
Agency

Case No. O-NG-781

DECISION AND ORDER ON NEGOTIABILITY ISSUE

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues relating to the negotiability of the following Union proposal. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination.

Union Proposal

No employee shall be reduced in grade as a result of a performance-based adverse action unless such employee has first been reassigned to an available noncompetitive position for which the employee is qualified and could reasonably be expected to demonstrate acceptable performance. No employee shall be removed from employment as a result of a performance-based adverse action unless such employee has first, where applicable, been reduced in grade as a result of his/her performance to a grade level the employee could reasonably be expected to demonstrate acceptable performance. Further, no employee will be removed from employment if a position exists for which the employee is qualified and could reasonably be expected to demonstrate acceptable performance.

This proposal is materially to the same effect as Union Proposal 1 in American Federation of Government Employees, Local 1760 and Department of Health and Human Services, Social Security Administration Northeast Program Service Center, 9 FLRA 1025 (1982). The proposal in that case would have prevented the Agency from terminating or demoting an employee without first allowing the employee to work in a like graded position. The Authority concluded that the proposal interfered with the Agency's rights to assign, remove, or reduce employees in grade or pay pursuant to section 7106(a)(2)(A) of the Statute by placing a condition upon the exercise of those rights. /1/ In the same way, the instant proposal improperly places a condition, i.e., reassignment to a new position, upon the Agency's right to reduce in grade or pay or remove an employee. Thus for the reasons set forth in greater detail in Social Security Administration Northeast Program Service Center, the instant proposal is also inconsistent with section 7106(a)(2)(A) of the Statute and is outside the duty to bargain.

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed.

Issued, Washington, D.C., June 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ 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--

. . . .

(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;