15:0804(154)NG - NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1001 DEPARTMENT OF THE AIR FORCE, VANDENBERG AIR FORCE BASE, CALIFORNIA



[ v15 p804 ]
15:0804(154)NG
The decision of the Authority follows:


15 FLRA NO. 154

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1001

     Union

     and

DEPARTMENT OF THE AIR FORCE,
VANDENBERG AIR FORCE BASE,
CALIFORNIA

     Agency

Case No. 0-NG-463

 

DECISION AND ORDER ON NEGOTIABILITY ISSUES

The petition for review in this case comes before the Federal Labor Relations Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute), and raises issues concerning the negotiability of three provisions of a local agreement which were disapproved by the Agency head pursuant to section 7114(c) of the Statute.

The Union also appealed to the Authority from the Agency's disapproval of a fourth provision of the local parties' agreement concerning assignment of overtime work. In its subsequent statement of position to the Authority the Agency withdrew its disapproval with respect to that provision. 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 as to the "assignment of overtime" provision, with respect to which the Agency withdrew its allegation of nonnegotiability.

Provision 1

Article 14, Paragraph 7

DISCRIMINATION: In accordance with PL 95-454, Title VII, if the grievance contains allegations of prohibited discrimination an employee has a choice of filing a grievance, in accordance with the negotiated procedure this article, or filing an Equal Opportunity complaint, in accordance with AFR 40-713 but does not have the [ v15 p804 ] authority to file both. If the employee chooses to file a grievance through the negotiated procedure he must notify the Union and ask for representation or if he chooses his own representative, they must be approved by the Union in writing. If the employee chooses the EEO complaint system he/she must contact the EEO Counselor and file IAW AFR 40-713.

Question Before the Authority

The question is whether Provision 1 is inconsistent with law, i.e., sections 7114(a)(5) and 7121(b)(3)(B) of the Statute.

Opinion

Conclusion and Order: Provision 1 is inconsistent with law, i.e., sections 7114(a)(5) and 7121(b)(3)(B) of the Statute, and, thus, under section 7117(a)(1) of the Statute, is outside the duty to bargain. 1 Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review with respect to Provision 1 be, and it hereby is, dismissed.

Reasons: Under section 7114(a)(5) and section 7121(b)(3) of the Statute, a bargaining unit employee whose grievance is being processed under the negotiated grievance procedure can elect to be represented by the exclusive representative or to present the grievance on his or her own behalf. Provision 1 herein, as explained by the Union, 2 would establish another option for those unit employees who decide to have their discrimination complaints processed under the negotiated grievance procedure, 3 i.e., to select their own personal representative. Thus, the question presented is whether the aforementioned provisions of the Statute preclude an employee from selecting a personal representative [ v15 p805 ] approved by the exclusive representative, to process his or her grievance under the negotiated grievance procedure.

Specifically, section 7114(a)(5) provides as follows:

7114. Representation rights and duties

(5) The rights of an exclusive representative under the provisions of this subsection shall not be construed to preclude an employee from--

(A) being represented by an attorney or other representative, other than the exclusive representative, of the employee's own choosing in any grievance or appeal action; or

(B) exercising grievance or appellate rights established by law, rule, or regulation;

except in the case of grievance or appeal procedures negotiated under (the Statute).

In essence, this provision sets forth certain rights of employees in units of exclusive recognition as distinguished from the rights of the exclusive representative which are enumerated in the remaining portions of section 7114 and elsewhere in the Statute. As relevant herein, unit employees, under section 7114(a)(5), have the right to choose their own attorney or representative, other than the exclusive representative, in any grievance or appeal procedure except those grievance or appeal procedures which are negotiated under the Statute. Thus, unit employees may only be represented in negotiated grievance and appeal procedures by the exclusive representative. Therefore, based upon the clear language of that section, unit employees may not be represented by representatives of their own choosing, including attorneys, in such procedures.

This statutory intent is confirmed by the legislative history of section 7114(a)(5). The provisions of the House Committee bill (H.R. 11280, 7114(a)) and the Senate Committee bill (S. 2640, 7212(c)(1)), from which section 7114(a)(5) as enacted into law was derived, both provided essentially that unit employees could opt to be represented by representatives of their own choosing, other than the exclusive representative, in any grievance or appeal procedure except for such procedures as were negotiated under the Statute. Moreover, the Senate Committee Report specifically emphasized that where a grievance is covered by and processed under a negotiated grievance procedure an [ v15 p806 ] employee may be represented only by the exclusive representation. 4 The use of the word "only" is a clear indication of congressional intent to preclude unit employees from being represented in negotiated grievance procedures by anyone other than the exclusive representative. 5

Further indication of this intent is found in the provisions of the Statute which pertain specifically to negotiated grievance procedures. In particular, section 7121(b)(3) provides, in relevant part, as follows:

7121. Grievance procedures

(b) Any negotiated grievance procedure referred to in subsection (a) of this section shall--

(3) include procedures that--

(A) assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances;

(B) assure such an employee the right to present a grievance on the employee's own behalf, and assure the exclusive representative the right to be present during the grievance proceeding(.) [ v15 p807 ]

By its terms, this section limits unit employees bringing grievances under the negotiated grievance procedure either to representing themselves or to being represented by the exclusive representative. Again, it is clear that unit employees may not have other representation.

Finally, the legislative history of section 7121(b)(3) also reinforces this conclusion. The section as enacted into law is identical to the provision as set forth in the House Committee bill (H.R. 11280, 7121(b)(3)). In explaining the meaning of the provision, the Committee Report stated as follows: 6

Section 7121(b) further provides that a negotiated grievance procedure must ... assure an employee the right to present a grievance on the employee's own behalf, as well as assure the labor organization the right to be present when the grievance is adjusted. Only the exclusive representative is entitled to represent employees under the negotiated grievance procedure, but employees may represent themselves.

Thus, while section 7121(b)(3)(B) expressly permits a unit employee to present a grievance on the employee's own behalf, the basic underlying policy of both sections remains the same, i.e., only the exclusive representative, and no other, may represent unit employees under the negotiated procedure. The clear intent of Congress, therefore, was, with the one stated exception whereby an employee may present and process a grievance on that employee's own behalf, to preclude unit employees from being represented in the negotiated grievance procedure by any person or organization other than the exclusive representative. 7

Consequently, contrary to the Union's contention, Provision 1 is inconsistent with sections 7114(a)(5) and 7121(b)(3)(B) of the Statute and, thus, is outside the duty to bargain. [ v15 p808 ]

Provision 2

Article 19, Paragraph 3

f. Panel members: There are three members on the panel. Each panel will consist of a member of the EEO Advisory Committee and two (2) technical experts well qualified in the career field of the vacancy being filled. Management will select one technical expert and the Union the other.

Provision 3

Article 20, Paragraph 15

b. In addition to the selecting supervisor, each panel will consist of a representative of the EEO Advisory Committee and a union designated technical expert well qualified in the career field of the vacancy being filled. The Civilian Personnel Officer will establish a duty roster assigning all EEO panel members.

Question Before the Authority

The question is whether Provisions 2 and 3 are inconsistent with section 7106(a)(2) of the Statute, as alleged by the Agency.

Opinion

Conclusion and Order: Provisions 2 and 3 are inconsistent with management's right to make selections for appointments under section 7106(a)(20)(C) of the Statute. 8 Accordingly, pursuant to section [ v15 p809 ] 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review with respect to Provisions 2 and 3 be, and it hereby is, dismissed. 9

Reasons: Provisions 2 and 3 at issue herein would provide for Union representatives on panels which are involved in selecting from among candidates for appointments to positions under the parties' negotiated Upward Mobility and Merit Promotion plans. Based on the record in this case, particularly the specific terms of Article 19 (Upward Mobility) and Article 20 (Merit Promotion) of the local parties' agreement, it appears that once an appropriate number of candidates for a position under either the Upward Mobility and Merit Promotion plans are identified through the procedures set forth in the respective plans, they are referred to the panels with which Provisions 2 and 3 are concerned for interviewing and final selection. 10 In this connection, according to the agreement, the members of the selection panel develop the questions to be asked of the candidates in an interview and, after reviewing their scores on the various rating and ranking procedures, attempt to reach agreement on the selection of one of the candidates. Thus, the record establishes that the Union representative on the selection panels, as proposed, would participate both in the deliberations and discussions attendant upon the [ v15 p810 ] decision to select a particular candidate to fill a position 11 and the decision to select itself. 12

The Authority has consistently held that the management rights set forth in section 7106 of the Statute encompass not only final action with respect to those matters covered by the right, but also the right to deliberate on and discuss the relevant factors upon which any such action will be based. National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981), enforced sub nom. National Federation of Federal Employees v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982); National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982). Further, with respect to union participation in such management deliberations and discussions, the Authority stated, in is Veterans Administration Medical Center decision as follows: "when management establishes formal organizational structures to undertake such deliberations as an integral part of its substantive decision-making process, a proposal which would require union participation would have the effect of directly interfering with management's statutory right to make the decisions involved." In that case, the Authority held nonnegotiable a portion of a proposal which provided for union representation on Professional Standards Boards whose decision on the retention or removal of probationary employees is final. 13 Thus, by providing for Union representatives to participate in the decision-making process whereby management exercises its right to make selections for appointments under section 7106(a)(2)(C) of the Statute, Provisions 2 and 3, under Authority precedent, directly interfere with that right and are outside the duty to bargain. See [ v15 p811 ] National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA No. 95 (1983) (Union Proposals 1 and 2).

 

Issued, Washington, D.C., August 29, 1984

Barbara J. Mahone Chairman

Ronald W. Haughton, Member

Henry B. Frazier III, Member

FEDERAL LABOR RELATIONS AUTHORITY

 

[ v15 p812 ]

APPENDIX

ARTICLE 19 UPWARD MOBILITY

3. PROCEDURES:

a. Position Designation. The Upward Mobility process begins when a supervisor designates a vacant unit position to be filled through Upward mobility Program (UMP), Project Mainstream, provisions.

b. Advertise Vacancy: The vacancy designated for the UMP is advertised. The advertisement lists a minimum title, series, and grade of both the entry level and the target position and the criteria which are used in rating applicants for the position.

c. Position Criteria: The criteria will be derived from analysis of the position. Those who apply are asked to complete a questionnaire which is designed to solicit specific information concerning the applicant's ability and potential to perform the duties of the position being filed. A copy of the questionnaire is printed at the end of this article, and copies of forms and rating schedules are available in the Civilian Personnel Office on request.

d. Scoring: The questionnaire is scored on a 4-O point range for the appropriate elements. The total score will be divided by the number of elements rated for an average score. The average score will then be multiplied by ten for the total Questionnaire Score. Elements rated to Potential and Learning Ability are Screen - Out Elements. Candidates who fail to score two points or more on each Screen - Out Element will not receive further consideration for the position advertised. Scoring of the questionnaire will be accomplished by members of an Ad Hoc panel assembled for that purpose for each position filled by this procedure. This panel will consist of EEO Advisory Committee members and at least one NFFE representative to the Upward Mobility Sup - Panel of the EEO Advisory Committee.

e. Appraisal Factors: The score received on the questionnaire is added to the score received on Employee's Current Appraisal as rated against elements applicable to the job being filled. The score derived on the Supervisor Appraisal of Employee Current Performance will be converted as follows: 66 - 70 = 40; 61 - 65 = 36; 56 - 60 = 32; 51 - 55 = 28; 46 - 50 = 24; 41 - 45 = 20; 36 - 40 = 16; 31 - 35 = 12; 0 - 30 = 10. The combined scores of the Questionnaire and Current Appraisal are then totaled. The top ten (10) applicants at this time are referred to the selection panel for final selection, as provided in Article 20, Merit Promotion. If fewer than ten applicants have successfully completed the [ v15 p813 ] questionnaire and have scored two or more in the Screen - Out Elements, they will be referred to the panel. The panel interview will be based on ten (10) questions with a maximum score of four assigned to each question.

f. Panel Members: There are three members on the panel. Each panel will consist of a member of the EEO Advisory Committee and two (2) technical experts well qualified in the career field of the vacancy being filled. Management will select one technical expert and the Union the other.

g. Panel Evaluation Factors: The Selection Panel is concerned with such factors as performance in the present and previous jobs; efforts at self-development, including formalized coursework; personal accomplishments outside the job; review of the candidates completed questionnaire; and an overall impression given during the interview.

h. Numerical Rating: Each panel member assigns a score based upon a 4-0 point range for each question or item being evaluated on each applicant. The total score for each panel member is then added together. The final score is comprised of the questionnaire score and Supervisory Appraisal score. The top ten (10) candidates will be interviewed by the panel (see Art 20) for selection.

ARTICLE 20 MERIT PROMOTION

15. Selection.

a. Promotion Advisory Panels are established to assist the selecting supervisor in interviewing and evaluating promotion candidates. Any candidate properly certified by the CCPO for promotion consideration may be selected except as outlined in paragraph 14c(2)(f) above.

b. In addition to the selecting supervisor, each panel will consist of a representative of the EEO Advisory Committee and a union designated technical expert well qualified in the career field of the vacancy being filled. The Civilian Personnel Officer will establish a duty roster assigning all EEO panel members.

c. Panel members must not be potential or actual candidates for promotion to the position which is being filled. Each member will perform his or her panel responsibilities impartially and fairly.

d. Prior to the interview the panel members will review all pertinent official personnel folders. [ v15 p814 ]

f. The selecting supervisor and the two panel members will convene immediately before the first interview and will prepare the questions to be asked the promotion candidates. Each of the three will have the right to select one-third of the interview questions.

g. After interviewing and evaluating the candidates the panel will discuss their evaluations and reach mutual agreement on the candidate to be selected. On the occasions where agreement cannot be reached, the selection supervisor will make the decision and will prepare a written record of the reason for this selection for inclusion in the promotion file. [ v15 p815 ]

FOOTNOTES

Footnote 1 Section 7117(a)(1) provides: 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation.

Footnote 2 Union Reply Brief at 3.

Footnote 3 See section 7121(d) of the Statute.

Footnote 4 S. REP. N. 95-969, 95th Cong., 2nd Sess. 102-103 (1978) states as follows: (W)here the grievance or appeal is covered and pursued under a negotiated grievance procedure ... all employees in the bargaining unit--union members and nonmembers alike--must use that procedure to resolve the dispute, and may be represented only by the exclusive representative. Where the negotiated procedure covers adverse action and discrimination complaints, the employee has an option to use the negotiated procedure or the statutory appeal procedure, but not both. If the employee chooses the negotiated procedure, only the exclusive representative of the unit may act as the employee's representative. However, if the employee chooses the statutory appeal procedure, the employee may also choose his/her own representative, and the union (as exclusive representative of the unit) would have neither a right nor an obligation to represent the employee.

Footnote 5 H.R. REP. No.95-1403, 95th Cong., 2nd Sess. 48 (1978).

Footnote 6 H.R. REP. No. 95-1403, 95th Cong., 2nd Sess. 55-56 (1978).

Footnote 7 This conclusion regarding the exclusive representative's control of, and responsibility for, the grievance, and the grievance procedure which it has negotiated, is reinforced by section 7121(b)(3)(C), which provides that only the exclusive representative or the agency may invoke binding arbitration.

Footnote 8 Section 7106(a)(2)(C) provides as follows: 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-- (C) with respect to filling positions, to make selections for appointments from-- (i) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source(.)

Footnote 9 In light of this conclusion, the Authority finds it unnecessary to address the other contentions of the Agency concerning the negotiability of Provisions 2 and 3.

Footnote 10 The relevant provisions of the local parties' agreement are Article 19, Paragraph 3 a. - h. and Article 20, Paragraph 15 a. - g., which are set forth in an appendix hereto. By the terms of those provisions, it appears that the sections necessary for understanding the function of the selection panels either under the Upward Mobility plan or the Merit Promotion plan are set forth in Article 20. That is, particular provisions of Article 20 relating to these panels are incorporated by reference in Article 19 of the agreement.

Footnote 11 Article 20, Paragraph 15 d., f., and g. provides for panel members to develop the questions to be asked at the interview, to conduct portions of the interview and rate candidates' performance therein, and to participate in discussions as to which candidate should be selected.

Footnote 12 Article 20, Paragraph 15 g. provides that where all members of the panel agree on the selection of a particular candidate that candidate shall be selected.

Footnote 13 Cf. National Treasury Employees Union and U.S. Customs Service, Region VII, San Francisco, California, 2 FLR