American Federation of Government Employees, Afl-Cio, Local 1923 v. Federal Labor Relations Authority

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

In this case, we consider whether a proposal submitted by a union during negotiations for a new contract falls outside the scope of an agency-employer’s duty to bargain. The proposal at issue would have prohibited an agency supervisor from recommending the discharge of an employee for unacceptable performance unless the supervisor found that the employee would be incapable of performing any other position in the agency. The agency — the Department of Health and Human Services (HHS) — refused to bargain over the proposal,…