34:0704(121)NG - - SEIU Local 100 and HHS, Gillis W. Long Hansen's Disease Center, Carville, LA - - 1990 FLRAdec NG - - v34 p704



[ v34 p704 ]
34:0704(121)NG
The decision of the Authority follows:


34 FLRA No. 121

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SERVICE EMPLOYEES INTERNATIONAL UNION

AFL-CIO

LOCAL 100

and

DEPARTMENT OF HEALTH AND HUMAN SERVICES

GILLIS W. LONG HANSEN'S DISEASE CENTER

CARVILLE, LOUISIANA

0-NG-1612

DECISION AND ORDER ON NEGOTIABILITY ISSUE

February 1, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority based upon a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of a proposal submitted by the Service Employees International Union, AFL-CIO, Local 100 (the Union) to the Department of Health and Human Services, Gillis W. Long Hansen's Disease Center, Carville, Louisiana (the Agency) during negotiations for a new collective bargaining agreement. The proposal concerns the presence of a union observer on merit promotion panels. We find that the proposal is outside the duty to bargain because it interferes with management's right to make selections for appointments under section 7106(a)(2)(C) and its right to assign work under section 7106(a)(2)(B).

II. The Proposal

The Union will be notified of all [merit promotion] panels and given the opportunity to have an observer present. The employer will select the Union observer from a panel of not less than five (5) names provided by the Union. The role of the Union observer shall be solely to monitor the process to insure compliance with the Agreement. The observer shall not be allowed to vote or to comment on the selection during the panel, and shall have no role in the decision making or deliberative process.

III. Positions of the Parties

The Agency contends that, by requiring management to give the Union an opportunity to have its observer present at every merit promotion panel, the proposal interferes with the right to make selections for appointments under section 7106(a)(2)(C) of the Statute. The Agency also contends that requiring management to choose the Union's observer from among those persons selected by the Union interferes with the right to assign work under section 7106(a)(2)(B).

The Union contends that the proposal does not interfere with management's right to make selections because "[t]he observer does not participate in the hiring and selection process, but simply monitors that process for compliance with the negotiated agreement." Petition for Review at 2. The Union also contends that the proposal does not interfere with management's right to assign work. The Union argues that: (1) the proposal does not allow the Union to select the observer but only to provide a list of employees; (2) the observer would have no role in the deliberative process of the merit promotion panel; and (3) the observer is necessary to protect employees against prohibited personnel practices such as the use of nonmerit factors in ranking.

IV. Discussion

The Agency's merit promotion panels rate and refer candidates to the selecting official. Petition for Review at 1. The proposal requires the Agency to: (1) offer the Union the opportunity to have an observer on all merit promotion panels; and (2) select the observer from a list of employees provided by the Union.

A. The Right to Make Selections for Appointments

The rights reserved to management under section 7106 include more than the right to decide to take final actions. Management rights encompass actions which are integral to the exercise of the rights, such as discussion and deliberation on the various factors on which a determination will be made. See American Federation of Government Employees, Local 2094 v. FLRA, 833 F.2d 1037, 1042-43 (D.C. Cir. 1987), affirming American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710, 712-15 (1986) (Proposals 2 and 3). Requiring union presence, whether active or passive, at these discussions and deliberations interferes with an agency's right to engage freely in internal discussions and deliberation prior to making decisions to take actions which are within the purview of section 7106(a). Id.

Promotion and rating panels are permanent or ad hoc committees established to evaluate, compare, and rank employees and, as such, constitute a part of the deliberative process by which management determines which employees will be selected for promotion under section 7106(a)(2)(C). American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 410 (1987) (citing American Federation of Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640, 643-45 (1985)). Union participation in the deliberative process leading to management's exercising its right to make selections for appointments, even in a purely passive role as an observer, interferes with that management right. Id. at 411 (citing American Federation of Government Employees, AFL-CIO, Local 2298 and Department of the Navy, Navy Exchange, Charleston, South Carolina, 22 FLRA 385, 386 (1986), affirmed mem. sub nom. American Federation of Government Employees, Local 2298 v. FLRA, No. 86-1497 (D.C. Cir. Dec. 15, 1987)).

In Navy Exchange, Charleston, 22 FLRA at 385, the proposal provided for a union observer to be "present to review the deliberations of the panel." The Authority found that the proposal was nonnegotiable because the observer's passive presence would inhibit the exercise of, and thereby interfere with, management's right to make selections for appointments. We find that the instant proposal, which requires the Union's observer to be present to "monitor" the deliberations of the panel, likewise would inhibit the exercise of, and thereby interfere with, management's right to make selections.

B. The Right to Assign Work

A requirement that management have a union-appointed observer on a rating and ranking panel constitutes the assignment of duties associated with rating and ranking candidates for promotion and, therefore, interferes with management's right to assign work. Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA at 411 (citing Association of Civilian Technicians, Inc., Pennsylvania State Council and The Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346, 355-57 (1981), reversed per curiam as to other matters sub nom. Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, Department of Defense v. FLRA, 685 F.2d 93 (3d Cir. 1982)). Requiring management to select an employee from a list of union nominees requires management to assign certain duties to particular employees and prevents the assignment of those duties to other employees, thereby interfering with management's right to assign work. American Federation of Government Employees, Local 2094, AFL-CIO, and Veterans Administration Medical Center, New York, New York, 22 FLRA 710, 711 (1986) (requiring management to select part-time EEO Counselors from a list of union nominees) (citing American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982)), affirmed as to other matters sub nom. American Federation of Government Employees, Local 2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987)).

In Veterans Administration Medical Center, Leavenworth, 30 FLRA at 410, Proposal 9 required management to release an employee from regular duties to participate as a union-appointed observer on a promotion panel for rating and ranking candidates. The Authority found that designation of particular employees to serve on a rating and ranking panel constitutes the assignment of duties associated with rating and ranking candidates for promotion and interferes with management's right to assign work.

The proposal in the present case also involves an employee serving as a union observer on a promotion panel. The main difference between the proposal in this case and the proposal in Veterans Administration Medical Center, Leavenworth is the method by which a union observer is selected. In Veterans Administration Medical Center, Leavenworth, the union appointed the observer whereas in the present case management selects the observer from a list of nominees provided by the Union. See Veterans Administration Medical Center, New York, 22 FLRA at 711 (requiring management to select part-time EEO Counselors from a list of union nominees interferes with right to assign work).