28:0647(82)NG - NTEU VS HHS, REGION V

[ v28 p647 ]
The decision of the Authority follows:

28 FLRA NO. 82






Case No. 0-NG-1340


I. Statement of the Case

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute). It raises issues concerning the negotiability of a single proposal submitted by the Union in response to notification by the Agency that it would no longer enforce a provision of the parties' collective bargaining agreement. The particular provision allowed for Union observers at merit promotion rating and ranking panels. The Agency asserted that the provision was no longer enforceable in view of the Authority's decision in American Federation of Government Employees, AFL - CIO, Local 2298 and Department of the Navy, Navy Exchange, Charleston, South Carolina, 22 FLRA No. 37 (1986), that the presence of even a passive union observer would interfere with management's right to select under section 7106(a)(2)(C).

II. The Proposal

When a promotion panel is established for the purposes of ranking eligible candidates in accordance with subsection I of this section, the Employer will appoint at least three (3) members to evaluate the potential of the candidate for the vacant position. Whenever a bargaining unit [ v28 p] employee is appointed as a ranking panel member, the Union will be notified when such a panel is convened in order to designate a representative to observe the panel's operation. Such notification shall be in writing to the Chapter President and be at least five (5) days in advance.

III. Positions of the Parties

In its petition, the Union notes that the proposal would require a union observer on rating and ranking panels only when the Agency appoints a bargaining unit member to a rating and ranking panel. The Union argues that by appointing a bargaining unit member to the panel, the Agency would have elected to include members of the Union's bargaining unit in internal management discussions and deliberations involved in the exercise of a management right. Under the proposal, the role of the Union observer would be to ensure that the interests of unit employees who are members of ranking panels are maintained and to police the administration of the contract.

The Agency asserts that the proposal conflicts with its right to select under section 7106(a)(2)(C) of the Statute. In support, it contends that the presence of a Union representative on rating and ranking panels would hamper the operations of the panels.

The Union's response to the Agency's statement of position was untimely and, therefore, we have not considered it. The Union acknowledges receiving the Agency's statement on December 1, 1986. The Union's response contains a statement of service dated December 22, 1986, and the response was not received by the Authority until December 29, 1986. Under section 2424.7 of the Authority's regulations the response should have been filed with the Authority within 15 days after the date the Union received the Agency's statement of position.

IV. Analysis and Conclusions

The Authority has consistently held that the management rights enumerated in section 7106 of the Statute encompass not only the right to act but also the right to discuss and deliberate concerning the relevant factors upon which decisions as to the exercise of those rights will be [ v28 p 2] made. 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, 579-81 (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 Medic