26:0497(60)NG - NTEU and Treasury, Bureau of Alcohol, Tobacco and Firearms -- 1987 FLRAdec NG



[ v26 p497 ]
26:0497(60)NG
The decision of the Authority follows:


 26 FLRA No. 60
 
 NATIONAL TREASURY 
 EMPLOYEES UNION
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY, 
 BUREAU OF ALCOHOL, TOBACCO 
 AND FIREARMS
 Agency
 
                                            Case No. 0-NG-1158
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority on a petition for review of
 negotiability issues filed under section 7105(a)(2)(E) of the Federal
 Service Labor-Management Relations Statute and part 2424 of the
 Authority's Rules and Regulations.  It raises issues concerning the
 negotiability of two proposals.
 
                              II.  Proposal 1
 
          An employee, Chapter President, Chief Steward or Steward will
       have the right to use a government telephone concerning any matter
       for which remedial relief may be sought pursuant to the terms of
       this agreement.  When FTS or government leased lines are not
       available, access shall be for local calls only.
 
                       A.  Positions of the Parties
 
    The Agency contends that this proposal is nonnegotiable because use
 by the Union of the Agency's government telephones is contrary to law
 and Government-wide regulations, and is not otherwise expressly
 permitted by the Statute.  Specifically, the Agency contends that 31
 U.S.C. Section 1348(b), 41 CFR Section 101-37.105-4 (now located at 41
 CFR Section 201-38.007) and 5 CFR Section 735.205 restrict use of a
 Government telephone to "official business," "official Government
 business," or "officially approved activities." The Agency maintains
 that the labor-management relations activities of the proposal are
 restricted by these provisions from being conducted with use of a
 Government telephone.  The Agency claims that a labor organization and
 labor-management relations activities are no different than any other
 private organization which is prohibited from conducting its activities
 with use of Government telephones without reimbursement.  For these
 reasons, the Agency further argues that the proposal is contrary to 31
 U.S.C. Section 1301, which provides that appropriations shall be applied
 only for appropriate purposes.  The Union disputes these contentions.
 
                       B.  Analysis and Conclusions
 
    The proposal in this case in materially identical in its effect to
 the ones we considered in National Federation of Federal Employees and
 General Services Administration, 24 FLRA No. 45 (1986).  In General
 Services Administration, we specifically rejected contentions, virtually
 identical to the Agency's contentions in this case, that the use of a
 Government telephone for the purpose of conducting labor-management
 relations activities is prohibited by law and Government-wide
 regulations restricting use of a Government telephone to official
 business.  Consequently, for the reasons set forth in General Services
 Administration, we find in this case that the proposal is not
 inconsistent with law or Government-wide regulations, as alleged,
 specifically 31 U.S.C. Sections 1301, 1348(b), 41 CFR Section
 201-38.007, and 5 CFR Section 735.205.  Moreover, as in General Services
 Administration, the Agency in this case fails to cite any statutory or
 regulatory provision which would prohibit it from exercising through
 negotiations its discretion to determine that use of the Government
 telephone to conduct the enumerated labor-management relations
 activities is sufficiently within the interest of the United States so
 as to constitute official business.  Likewise, the proposal does not
 provide for telephone use which does not comport with cited statutory
 and regulatory requirements and restrictions.  Accordingly, we find that
 Proposal 1 is within the duty to bargain under the Statute.
 
                             III.  Proposal 2
 
    The FLRA Members disagree over the negotiability of this proposal.
 The decision and order on Proposal 2, and Chairman Calhoun's dissent
 immediately follow this decision.
 
                                IV.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain on Proposal 1.  /*/
 
    Issued, Washington, D.C., March 31, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                     DECISION AND ORDER ON PROPOSAL 2
 
                                Proposal 2
 
          The parties agree that agency employees should receive first
       consideration for all actions set forth in Section 2A below,
       except in an emergency or in those instances where there is no
       employee within the region at a grade level lower than the level
       specified on the vacancy announcement.
 
          First consideration requires that a vacancy be available to
       agency employees and that they be ranked and considered for
       selection before any non-ATF applicants are solicited, ranked or
       considered for selection.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposal is nonnegotiable because it is
 contrary to merit system principles set forth in 5 U.S.C. Section
 2301(b)(1), 5 CFR Section 335.103, and Federal Personnel Manual chapter
 335, subchapter 1-4, Requirement 1.  The Agency argues that the proposal
 grants agency employees preferential treatment by being considered first
 and that such a preference conflicts with the cited merit system
 principles requiring that the selection actions encompassed by the
 proposal be based solely on job-related criteria.  The Agency also
 argues that by requiring the Agency to grant such a preference in
 violation of merit system principles, the proposal would require the
 Agency to engage in the prohibited personnel practice set forth in 5
 U.S.C. Section 2302(b)(6).  The Agency similarly contends that the
 preference required by proposal conflicts with equal employment
 opportunity principles.  Specifically, the Agency argues that the
 proposal conflicts with 5 CFR Section 300.103(c), prohibiting employment
 practices that discriminate on the basis of any non-merit factor, and 29
 CFR part 1613, requiring that equal opportunity in employment be
 provided all persons.  /1/ Finally, the Agency contends that this
 proposal directly interferes with its right under section 7106(a)(2)(C)
 of the Statute to choose from among candidates from any appropriate
 source in filling positions.  Specifically, the Agency argues that the
 proposal bars consideration of other candidates until all agency
 employees are considered and that this protracted process could result
 in a serious delay in filling a vacant position.
 
    The Union generally disputes the Agency's contentions.  Specifically,
 the Union asserts that the proposal "merely requires the agency to
 consider agency employees before others." Union Reply Brief at 3
 (emphasis by the Union).  Therefore, the Union contends that the
 proposal is not contrary to merit system principles because it does not
 grant a preference or advantage and would not define the scope or manner
 of competition.  The Union similarly contends that the proposal does not
 conflict with section 7106(a)(2)(C) because it merely requires that the
 Agency consider its employees first before expanding the area of
 consideration.  The proposal does not interfere with management's right
 to select from any appropriate source.
 
                       B.  Analysis and Conclusions
 
    In National Treasury Employees Union and Department of the Treasury,
 24 FLRA No. 54 (1986) (Chairman Calhoun dissenting), petition for review
 filed sub nom. Department of the Treasury v. FLRA, Case No. 87-1084
 (D.C. Cir. Feb. 13, 1987), we considered a provision and contentions
 virtually identical to the proposal and contentions in this case.  We
 rejected the contentions that by granting advance consideration to
 bargaining-unit employees for certain vacancies, the provision
 conflicted with merit system principles and required the agency to
 commit a prohibited personnel practice.  We further concluded that the
 provision did not impose any substantive limitation on management's
 right to select under section 7106(a)(2)(C).  We found instead that the
 provision constituted a procedure under section 7106(b)(2) and was
 negotiable even though it would delay in certain circumstances
 management's ability to select for promotion from other appropriate
 sources.  Consequently, for these reasons, which are fully discussed in
 Department of the Treasury, we conclude that the proposal does not
 establish any preference in violation of merit system or equal
 employment opportunity principles and constitutes a negotiable procedure
 under section 7106(b)(2).  Accordingly, we find that Proposal 2 is
 within the duty to bargain under the Statute.
 
                                 C.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain on Proposal 2.  /2/
 
    Issued, Washington, D.C., March 31, 1987.
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
            Separate Opinion of Chairman Calhoun on Proposal 2
 
    The first paragraph of Proposal 2 provides, with exceptions not
 relevant here, that Agency employees should receive first consideration
 for Agency positions.  The second paragraph of the proposal defines
 "first consideration" to mean that non-Agency employees may not be
 "solicited, ranked or considered" for selection until that process has
 been completed for Agency applicants.
 
    In my opinion, the first paragraph, standing alone, would be a
 negotiable procedure under section 7106(b)(2) of the Statute.  It would
 not interfere with the Agency's exercise of its right to make selections
 for positions;  it would require only that applicants for those
 positions be considered in a certain order:  Agency employees first.  By
 requiring only consideration of internal candidates before outsiders,
 the first paragraph is distinguishable from Proposal 5 in Colorado
 Nurses Association and Veterans Administration Medical Center, Ft.
 Lyons, Colorado, 25 FLRA No. 66 (1987) which would have required the
 agency to select an internal candidate and was found to be nonnegotiable
 for that reason.  Requiring that Agency applicants be considered before
 outsiders is consistent with good management, in my view, because it
 promotes the retention of qualified employees by enhancing their
 opp