27:0191(32)NG - AFSCME Local 2027 and ACTION -- 1987 FLRAdec NG



[ v27 p191 ]
27:0191(32)NG
The decision of the Authority follows:


 27 FLRA No. 32
 
 AFSCME, LOCAL 2027
 Union
 
 and
 
 ACTION
 Agency
 
                                            Case No. 0-NG-1201
 
                DECISION AND ORDER OF 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).  The case concerns the
 negotiability of two proposals.
 
                              II.  Proposal 1
 
    The FLRA Members have expressed different opinions concerning
 Proposal 1.  The decision and order on Proposal 1 and Chairman Calhoun's
 concurring opinion immediately follow this decision.
 
                             III.  Proposal 2
 
       In those cases where both a removal action is involved and the
       employee has applied for disability retirement, the agency, upon
       request of either the employee or his/her representative, agrees
       to consider placing that employee in LWOP status pending a
       decisiqon on the disability retirement application.
 
                        A.  Position of the Parties
 
    The Agency argues that this proposal violates 5 CFR Section
 831.501(d), which provides that an employee's application for disability
 retirement shall not preclude or delay any other appropriate personnel
 action by the employing agency.  In addition, the Agency argues that
 this proposal interferes with its rights under section 7106(a)(2)(A) to
 hire and remove employees.
 
    The Union claims that this proposal does not mandate any particular
 course of action or suggest that the Agency's removal notice must be
 rescinded.  All that the proposal requires, according to the Union, is
 that the Agency "consider" placing the employee on leave without pay
 (LWOP) status pending a decision on disability retirement.  The Union
 states that this proposal constitutes a procedural arrangement clearly
 related to conditions of employment.
 
                        B.  Analysis and Conclusion
 
              1.  No Violation of Government-wide Regulations
 
    The Government-wide regulation relied upon by the Agency, namely, 5
 CFR Section 831.501(d) provides that "(a)n employee's application for
 disability retirement shall not preclude or delay any other personnel
 action by the agency." Thus, it is apparent that an agency cannot be
 required to delay taking a personnel action against an employee simply
 because the employee has applied for disability retirement.  See, for
 example, Ward v. General Services Administration, MSPB Docket No.
 SL07528510045 (July 1, 1985).  However, it is also clear that an agency
 does have discretion to delay taking a personnel action against an
 employee and instead to grant that employee leave without pay pending a
 decision on that employee's application for disability retirement.  See
 Raymond W. Walker v. Department of the Air Force, MSPB Docket No.
 DA0752841065 (October 25, 1984).
 
    Proposal 2 in this case does not require the Agency to act in any
 manner inconsistent with the Government-wide regulation.  Rather, the
 proposal only requires the Agency to "consider" taking the action
 enumerated in the proposal.  Thus, we conclude that Proposal 2 does not
 violate the cited Government-wide regulation.
 
                  2.  No Violation of Management's Rights
 
    The Agency claims that this proposal violates its rights under
 section 7106(a)(2)(A) to hire and remove employees.  We disagree.  We
 noted above that the proposal only requires the Agency to "consider"
 taking certain action.  As such it does not require the Agency to act in
 any manner which is inconsistent with the rights reserved to it under
 section 7106 of the Statute.  See International Federation of
 Professiqonal and Technical Engineers, Local 4 and American Federation
 of Government Employees, Local 2024, AFL-CIO and Department of the Navy,
 Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 14 FLRA 52 (1984).
 
                                IV.  Order
 
    The Agency must, upon request or as otherwise agreed to by the
 parties, negotiate on Proposal 2.  /1/
 
    Issued, Washington, D.C., May 29, 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 1
 
                                Proposal 1
 
          Details and Merit Promotion (Article XV, Section E, Paragraph
       3).  If an eligible employee is not selected under part 3, above,
       and appears on the best qualified list for the same vacancy after
       having applied through the competitive process and is not
       selected, he/she shall be provided written, persuasive reasons for
       non-selection and given seven (7) days to rebut these reasons to
       the selecting officially orally and/or in writing.  The selecting
       official shall have seven (7) days to respond in writing.  The
       agency shall not fill the vacancy until the rebuttal phase is
       complete.
 
                        A.  Position of the Parties
 
    The Agency argues that this proposal interferes with its rights to
 hire employees from any appropriate source under section 7106(a)(2)(A)
 and (C) of the Statute.  According to the Agency, this proposal would
 allow repromotion eligible bargaining unit members to interject
 themselves and their judgment into management's decision-making process
 with respect to filling vacancies.  The Agency also contends that this
 proposal does not constitute a procedure which management must follow in
 exercising its rights under section 7106 of the Statute, but rather,
 would submit management's discretion in the hiring process to third
 party review and judgment.
 
    The Union argues that the proposal sets forth a negotiable procedure
 or arrangement for employees downgraded through no personel fault who
 are eligible for repromotion.  The Union further states that the
 rebuttal procedure has the purpose of assuring that the selecting
 official has all the information necessary to make a rational decision.
 
                        B.  Analysis and Conclusion
 
    The Union explains that this proposal applies to employees downgraded
 without personal fault who are eligible for repromotion under the terms
 of the agreement.  The proposal refers to a prior step ("part 3") in the
 selection process which allows repromotion eligibles to be considered
 for vacancies outside of the competitive promotion process.  Proposal 1
 is applicable when a repromotion eligible is not selected for the
 vacancy during the first stage of consideration but is rated among the
 best qualified candidates under the merit promotion procedures.  The
 proposal requires that nonselection of a repromotion eligible during the
 competitive phase of the promotion process be supported by "written,
 persuasive reasons." The proposal also delays filling the vacancy while
 the nonselected repromotion eligible "rebuts" the Agency's claimed
 "persuasive reasons" for the nonselection.
 
    The Agency claims this proposal is nonnegotiable because it permits a
 nonselected repromotion eligible to review and challenge the Agency's
 reasons for the nonselection.  Specifically, the Agency contends that
 this proposal creates "a procedure akin to a veto or an interlocutory
 appeal right" which permits a repromotion eligible to "substitute his
 own judgment for that of management's selecting official as to what
 constitutes 'persuasive reasons' for the nonselection." Statement of
 Position at 2.  In this connection, the Agency questions "how often a
 management official's reasons for nonselection are likely to be
 persuasive to a disgruntled repromotion eligible." Id. at note on 2.
 
    This claim is without merit.  The proposal in this regard merely
 requires the Agency to provide the employee with its reasons for not
 selecting the employee.  The inclusion of the proposal's language would
 not, of course, limit management's rights under section 7106(a)(2)(A)
 and (C) to hire an otherwise qualified candidate for a position.
 Further, the proposal would not establish any sort of a standard which
 management must meet in exercising its rights.  The proposal's
 requirement therefore does not have any particular bearing on whether
 management's selection decision will ultimately be sustained if
 challenged in some subsequent proceeding, such as a proceeding before an
 arbitrator.
 
    Challenges to agency selection decisions typically have as their
 basis a claim by a nonselected employee that the nonselection was
 improper or in other words, that the reasons for the nonselection were
 not deemed "persuasive" by the nonselected employee.  In such disputed
 selection action cases where an arbitrator finds that the selection
 process did not conform with applicable requirements the arbitrator may
 order the selection rerun or reconstructed as corrective action.  See
 Local R-1-185, National Association of Government Employees and the
 Adjutant General of the State of Connecticut, 26 FLRA No. 36 (1987).
 However, the Authority has repeatedly indicated that the incumbent
 employee in the case is entitled to be retained in the position pending
 corrective action unless it is specifically determined that the
 incumbent could not originally have been selected under law and
 regulation and the parties' collective bargaining agreement.  See, for
 example, American Federation of Government Employees, Local 1546 and
 Sharpe Army Depot, Department of the Army, Lathrop, California, 16 FLRA
 1122 (1984).
 
    Further, it is well established that an arbitrator may not order an
 agency to select a grievant for the position in question unless the
 arbitrator has determined that the grievant was affected by an
 unjustified or unwarranted personnel action and that but for such
 unwarranted action on the part of the agency the grievant would have
 been selected for the position.  For example, Veterans Administration
 Hospital and American Federation of Government Employees Union, Lodge
 2201, 4 FLRA 419 (1980).  Moreover, the mere failure to provide
 "persuasive reasons" cannot by itself constitute such an improper action
 on the part of the Agency so as to permit an arbitrator to order a
 grievant selected for the position.  See Picatinny Arsenal, U.S. Army
 Research and Development Command, Dover New Jersey and National
 Federation of Federal Employees, Local 1437, 7 FLRA 703 (1982).
 
    In this case, the proposal does not require the Agency to select the
 repromotion eligible employee who is on the best qualified list but only
 to provide that nonselected employee "persuasive reasons" for
 nonselection.  In our view, therefore, this proposal merely establishes
 a procedure for management to follow in the exercise of its rights to
 hire and select.
 
    Finally, we do not find that the requirement to delay filling a
 position for up to a maximum of 14 days while the procedure set out in
 the proposal is implemented renders this proposal nonnegotiable.  In
 this respect, it is by now well established that a procedure which
 delays but does not prevent management from acting at all is negotiable
 under section 7106(b)(2) of the Statute.  American Federation of
 Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange
 Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979),
 enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C.
 Cir. 1981), cert. denied sub nom., AFGE v. FLRA, 445 U.S. 945 (1982).
 See also National Treasury Employees Union and Department of the
 Treasury, 24 FLRA No. 54 (1986).
 
                                 C.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain on Proposal 1.  /2/
 
    Issued, Washington, D.C., May 29, 1987.
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
       Separate Opinion of Chairman Calhoun Concurring on Proposal 1
 
    Proposal 1 requires the Agency to provide a repromotion eligible who
 is not selected for a position after appearing on a best qualified list
 "persuasive" reasons for nonselection and prohibits the Agency from
 filling the position until the affected employee has been given an
 opportunity -- 7 days -- to rebut the reasons orally and/or in writing.
 
    As I stated in my opinion in National Treasury Employees Union and
 Department of the Treasury, 24 FLRA No. 54 (1986), petition for review
 filed sub nom. Department of the Treasury v. FLRA, No. 87-1084 (D.C.
 Cir. February 13, 1987), I believe that the right to select includes the
 right to select immediately if necessary for the efficient functioning
 of the Agency.  See also my opinion in National Treasury Employees Union
 and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,
 26 FLRA No. 60 (1987).  As the United States Court of Appeals for the
 D.C. Circuit stated in National Treasury Employees Union v. FLRA, 691
 F.2d 553, 563 (D.C. Cir. 1982), "the right to determine what work will
 be done, and by whom and when it is to be done, is at the very core of
 successful management of the employer's business(.)" In my view,
 Proposal 1 conflicts with the right to select by preventing the Agency
 from exercising that right until the rebuttal phase of the process is
 complete.
 
    Despite the interference with the right to select, I would find
 Proposal 1 to be negotiable.  The proposal applies to employees who have
 been downgraded through no personal cause and by its terms ameliorates
 the adverse effects of the downgrading.  It applies only after one of
 these employees has been rated as best qualified under the Agency's
 competitive procedures.  It does not require the Agency to select the
 employee;  it provides only a further opportunity for consideration by
 enabling the employee to rebut the Agency's reasons for nonselection
 before the selection is made final.
 
    Under the criteria set forth in National Association of Government
 Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4
 (1986), I find that the proposal's benefits to affected employees
 outweighs the interference with the Agency's right.  Therefore, I would
 find the proposal to be a negotiable appropriate arrangement under
 section 7106(b)(3) of the Statute.  Accordingly, I concur in the
 majority's decision that the proposal is negotiable.
 
    Issued, Washington, D.C., May 29, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
 
 
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