22:0385(37)NG - AFGE Local 2298 and Navy, Navy Exchange, Charleston, SC -- 1986 FLRAdec NG
[ v22 p385 ]
The decision of the Authority follows:
22 FLRA No. 37 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2298 Union and DEPARTMENT OF THE NAVY NAVY EXCHANGE CHARLESTON, SOUTH CAROLINA Agency Case No. 0-NG-1214 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor Management Relations Statute (the Statute) and concerns the negotiability of one Union proposal. II. Union Proposal Article 19 -- Promotions and Assignments Section 5: Normally rating and ranking panels will not be used for unit positions, however, if they are used, the selecting official will not be a member of the panel and the Union will be provided the opportunity to have an observer present to review the deliberations of the panel. A. Positions of the Parties The Agency contends the proposal violates its right, to direct employees, to assign work, and to select employees for promotion under section 7106(a)(2)(A), (B) and (C) of the Statute, respectively. The Union argues that the proposal does not violate management's rights because it asserts that as the proposal "simply allows a union representative to observe the proceedings," it differs from proposals found nonnegotiable which have called for union participation in the rating and ranking process. The Union contends that while it does "not envision the observer as being able to stop the proceedings, or having the authority to interfere in the timely rating and ranking, (it) do(es) see the observer as being able to challenge questionable practices of the panel. Such matters could and likely would be resolved . . . on the spot." Union Reply Brief at 3. The Union also describes the clause as "a form of 'sunshine act'" and asserts that the "management decisional process is not shielded from observation by the privacy act, any other law, nor any government-wide regulation." Union Reply Brief at 3. B. Analysis While the Union claims that its representative on the rating and ranking panels would only be an observer, its statements that such representative would be "able to challenge questionable practices of the panel" and that "(s)uch matters . . . likely would be resolved . . . on the spot" indicate a more active role for its representative in proceedings of the panels. However, such distinction in the actual intended role of the Union's representative does not affect the negotiability of this proposal. The Authority has held that a provision requiring participation of a union representative on a promotion rating panel interfered with management's right to select under section 7106(a)(2)(C) of the Statute. American Federation of Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA No. 81 (1985)(provision 3). The Authority has also held that even a purely passive role of a union observer at management meetings concerning the exercise of management rights (in that case involving the development of performance standards) would interfere with an agency's right freely to engage in internal discussion and deliberations prior to making decisions on those management rights. American Federation of Government Employees, AFL-CIO, Local 2302 and U.S. Army Armor Center, Ft. Knox, Kentucky, 15 FLRA 17, 18-19 (1984) (Union proposal 2). Thus, even if the Union observer contemplated by this proposal were to play only a passive role in attending deliberations of the panel, the proposal must be found to be nonnegotiable because such presence would interfere with management's right to select under section 7106(a)(2)(C). Finally, the Union's reliance on the Authority's decisions in National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270 (1983) and National Federation of Federal Employees, Local 1579 and Veterans Administration Regional Office, Louisville, Kentucky, 12 FLRA 600 (1983) is misplaced. Unlike the proposal in this case, the Proposal found negotiable in Veterans Administration Hospital, Long Beach, and Proposal 1 found negotiable in Veterans Administration Regional Office, Louisville, provided for union participation in incentive awards programs which did not concern the exercise of management rights. The Agency has not demonstrated how this proposal would interfere with management's rights to direct employees under section 7106(a)(2)(A), or to assign work under section 7106(a)(2)(B) of the Statute. The Authority shall, therefore, make no determinations on those claims. C. Conclusion The Union proposal is inconsistent with management's right to select under section 7106(a)(2)(C) of the Statute and therefore is not negotiable. IV. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition be, and it hereby is, dismissed. Issued, Washington, D.C. July 7, 1986.