dissenting:
With great respect for the majority’s position and holding, I dissent. The case before us deals with a union proposal which would stay any pending or proposed personnel action made the subject of a grievance or arbitration until a final determination had been made. The FLRA found this proposal negotiable.
As Judge Thomberry points out, the choice of standards to be used is difficult. Although I cannot quarrel with the majority’s legal analysis nor with its selection of the “acting at all” standard, it seems to me that such is unnecessary here. In my opinion this proposal is not negotiable under either standard.
Section 7106 preserves specific management rights. Congress has found such to be necessary in order that the agency function efficiently. To suggest that appropriate officials could operate at all if any decision to hire, assign, direct, lay off, retain, suspend, remove, reduce in grade or pay, transfer, etc. could be automatically stayed by merely making it the subject of a grievance or arbitration is too much for me. Nor do I find solace in the argument of counsel that this proposal would never become the final product of negotiations and certainly would not be imposed by the Federal Services Impasses Panel. Today’s impossibilities seem to be tomorrow’s realities.
The argument has also been made that these grievance and arbitration procedures are designed to move rapidly and that such stays would be for reasonably short periods of time. I think we could take judicial notice that such is not so.
Concluding that this proposal is so clearly contrary to the express provisions of the statute as to be outside any area of negotiability under either standard, I would deny enforcement.