701 F.2d 781 (9th Cir. 1983), 82-7154, National Treasury Employees Union v. Federal Labor Relations Authority

Docket Nº:82-7154.
Citation:701 F.2d 781
Party Name:NATIONAL TREASURY EMPLOYEES UNION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
Case Date:March 14, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 781

701 F.2d 781 (9th Cir. 1983)

NATIONAL TREASURY EMPLOYEES UNION, Petitioner,

v.

FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 82-7154.

United States Court of Appeals, Ninth Circuit

March 14, 1983

Argued and Submitted Jan. 7, 1983.

Page 782

John F. Bufe, Deputy Counsel, Washington, D.C., for petitioner.

Pamela P. Johnson, Washington, D.C., for respondent.

OPINION

Petition for Review of a Federal Labor Relations Authority Decision.

Before BROWNING, FLETCHER, and PREGERSON, Circuit Judges.

PREGERSON, Circuit Judge:

Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. Secs. 7101-7135, governs labor-management relations within the federal civil service. The act guarantees employees of virtually all federal agencies, id. Sec. 7103(a)(3), the right to bargain collectively over conditions of employment, id. Sec. 7102(2), 1 but exempts from negotiation proposals affecting management rights, id. Sec. 7106. 2 If a federal agency takes the position that a proposal made on behalf of its employees is exempt from negotiation, the employees' exclusive bargaining representative may then appeal the agency's allegation of nonnegotiability to the Federal Labor Relations Authority (FLRA) 3 for a negotiability determination, id. Sec. 7117(c)(1). The Civil Service Reform Act requires the FLRA to issue a "written decision on the [agency's] allegation and specific reasons therefor ...." Id. Sec. 7117(c)(6).

The issue of negotiability arose in this case after the National Treasury Employees Union (Union) submitted to the Department of Health and Human Services (Department) four proposals concerning employee performance appraisal systems. 4

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The Department refused to bargain with the Union over these proposals, contending that they infringed on the Department's management rights. The Union then appealed to the FLRA for a negotiability determination under section 7117(c). The FLRA concluded that the Union's proposals interfered with the Department's management rights to assign and direct work and, therefore, were not within the Department's duty to bargain.

Pursuant to 5 U.S.C. Sec. 7123, the Union petitioned this court for review of two of its proposals that related to "critical elements." A "critical element" is a component of an employee's job that is of such importance that the failure to meet it requires remedial action, including removal. 5 C.F.R. Sec. 430.202 (1981).

The two proposals at issue are as follows:

Proposal 2

The employer and the union agree that the following...

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