35:0362(41)NG - - NFFE Local 2099 and Navy, Naval Plant Representative Office, St. Louis, MO - - 1990 FLRAdec NG - - v35 p362



[ v35 p362 ]
35:0362(41)NG
The decision of the Authority follows:


35 FLRA No. 41

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2099

(Union)

and

DEPARTMENT OF THE NAVY

NAVAL PLANT REPRESENTATIVE OFFICE

ST. LOUIS, MISSOURI

(Agency)

0-NG-1630

DECISION AND ORDER

March 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on 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 single provision that was agreed to locally, but was disapproved during agency head review conducted under section 7114(c) of the Statute.

The provision requires a ranking panel to be used to determine the best qualified candidates in any promotion action where three or more qualified candidates are identified. The Agency asserts that the provision interferes with its rights to determine its organization, assign work to employees and make selections. The Agency further contends that the provision does not constitute an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute. For the reasons that follow, we find that the provision does not interfere with any of the rights enumerated by the Agency and constitutes a procedure negotiable under section 7106(b)(2).

II. The Provision (1)

Where three or more qualified applicants are identified, a ranking panel will be established to determine the best qualified candidates.

III. Positions of the Parties

A. The Agency

The Agency asserts that management rights include the right to discuss and deliberate concerning the relevant factors upon which determinations will be based. The Agency argues that, because rating and ranking panels constitute part of the deliberative process by which management determines which employees will be selected for promotion under section 7106(a)(2)(C), the provision's requirement that the Agency establish a ranking panel directly affects the exercise of the Agency's right to make selections.

Likening the provision in this case to the proposal at issue in Hawaii Federal Employees Metal Trades Council, AFL-CIO and Pearl Harbor Naval Shipyard, 23 FLRA 189 (1986) (Pearl Harbor), the Agency contends that the provision interferes with the Agency's rights to assign work and to determine its organization.

As to the right to assign work, the Agency states that "[p]art and parcel of a ranking panel is the assignment of work to individuals who will perform the duties of the panel." Agency statement of position at 6-7. The Agency asserts that the disputed provision "constitutes a requirement for management to assign work to individuals not chosen by management." Id. at 7. The Agency argues, further, that the provision interferes with the Agency's right to assign work by requiring that a "panel" perform the rating and ranking.

As to the right to determine its organization, the Agency contends that (1) the ranking panel would perform Agency functions with respect to evaluating candidates for promotion, and (2) the determination of how Agency components are organized to accomplish these functions is a matter encompassed within the right to determine its organization.

The Agency contends that the Authority should not consider the Union's arguments that the provision constitutes an "appropriate arrangement" under section 7106(b)(3) because the arguments were raised for the first time in the Union's response to the Agency's statement of position. As to the merits of those arguments, the Agency contends that the provision does not constitute an "arrangement" under section 7106(b)(3) because there is no basis for concluding that employees will be adversely affected by the Agency's exercise of the rights involved in evaluating promotion candidates for purposes of selection.

B. The Union

The Union argues that the provision does not interfere with the exercise of management's rights and is a procedure negotiable under section 7106(b)(2). In response to the Agency's contention that the provision interferes with the Agency's right to make selections, the Union asserts that the provision does not interject the Union into the selection process. The Union asserts that the provision neither allows the Union access to the deliberative process involved in making selections nor requires disclosure of any factors relevant to those deliberations.

In response to the Agency's argument that the provision interferes with the right to assign work, the Union contends that the provision does not violate that right because it "does not require or suggest Union representation to be a part of the rating and ranking panel" and "does not mandate any particular managers or managerial representatives to perform the ranking of candidates. Management is capable of assigning the ranking duties to whomever it chooses." Union's response at 5, 7. The Union argues that, other than requiring that the ranking panel include more than one person, the provision places no restrictions on the Agency's ability to assign duties. The Union asserts that the provision merely requires the Agency to follow a procedure in which more than one Agency representative is involved.

The Union denies that the provision interferes with the Agency's right to determine its organization. The Union contends that the provision does not require the establishment of an organizational structure or the assignment of specific managers to a formal organizational structure.

The Union contends that the provision does not directly interfere with the Agency's management rights but, rather, is a procedure within the meaning of section 7106(b)(2), which management will observe in exercising its authority. The Union argues that insofar as the provision would require the Agency to use more than one person to accomplish the ranking function, the provision is like other negotiable procedures that require an agency to take action to carry them out. The Union maintains that this requirement does not bring a proposal into conflict with the right to assign work.

Finally, the Union asserts that, even assuming that the proposal conflicts with management rights, it is negotiable under section 7106(b)(3) as an appropriate arrangement for employees adversely affected by the exercise of management rights. The Union contends that the provision constitutes an arrangement for employees who are adversely affected by being denied promotion opportunities as a result of improper ranking and that this arrangement does not excessively interfere with the Agency's management rights.

IV. Analysis

The provision at issue in this case was part of the merit promotion article of the parties' negotiated agreement. Union response at 1. The provision requires that where three or more qualified applicants have been identified, they will be ranked by a panel. By "panel," the Union intends a dictionary definition of "a list or group of persons selected for a specific purpose, as judging discussing, etc." Union response at 12-13. The issue in this case is the requirement that a "panel," rather than one individual, perform the ranking function.

A. The Provision Does Not Interfere with the Right To Select

The rights reserved to management under section 7106 include more than the right to decide to take final actions. Management rights encompass actions that are integral to the exercise of those rights, such as discussion and deliberation on the various factors on which a determination will be made. See, American Federation of Government Employees, AFL-CIO, Local 2094 v. FLRA, 833 F.2d 1037, 1042-43 (D.C. Cir. 1987). 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 within the purview of section 7106. Id.

Ranking candidates constitutes part of the deliberative process by which management determines which employees will be selected for positions under section 7106(a)(2)(C). American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 410-11 (1987). The provision in this case does not require union presence on the ranking panel, however. The provision requires only that where a specified number of qualified promotion candidates are identified, they will be ranked by a panel, not by a single individual. The provision neither interjects the union into the deliberative process nor impairs the Agency's decision-making process in a manner that violates section 7106. Compare American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 875-76 (1986).

Ensuring fair consideration and merit selection in promotions and internal placements are cornerstones of a merit system. See 5 U.S.C. § 2301(b); Federal Personnel Manual (FPM) Chapter 335, Subchapter 1-1. As written and explained by the Union, the disputed provision is limited to requiring that more than one person be involved in the rating and ranking process for the purpose of providing checks and balances in the merit promotion process. In our view the provision simply prescribes a procedure that the Agency will use to evaluate candidates for promotion. See National Federation of Federal Employees, Local 29 and Kansas City District, Corps of Engineers, Kansas City, Missouri, 23 FLRA 569, 576-77 (1986) (the Authority, addressing arguments different than those presented here, held that a proposal requiring use of a panel for the rating and ranking process constituted a negotiable procedure). The provision does not prescribe criteria for the selection of panel members or criteria on which the evaluations of applicants will be based. Compare National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565, 566-68 (1983). Under the provision, substantive decisions concerning selections are left to the unfettered discretion of the Agency. The provision does not stipulate "procedures that so affect the environment within which an agency is allowed to act that it places the equivalent of a substantive restraint on its ability to act[.]" Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819, 821 (D.C. Cir. 1988). Rather, the provision prescribes a "pure" procedure "for use in determining which employees possess characteristics identified by management as appropriate criteria for choice." Department of Defense v. FLRA, 659 F.2d 1140, 1152 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982).

Based on the foregoing we conclude that the provision does not directly interfere with the Agency's right under section 7106(a)(2)(C) to make selections for appointments. Rather, the provision constitutes a negotiable procedure for management to observe in making selections.

B. The Provision Does Not Interfere with the Right To Assign Work

The Agency claims that this requirement violates its right to assign work because "it constitutes a requirement for management to assign work to individuals not chosen by management." Agency statement of position at 7. Contrary to the Agency's assertion, we find that the provision does not require the Agency to assign duties to ranking panel members it has not chosen. Nothing in the wording of the provision contains such a requirement. Moreover, as noted earlier, the Union states that the provision "does not require or suggest Union representation to be a part of the rating and ranking panel" and "does not mandate any particular managers or managerial representatives to perform the ranking of candidates." Union response at 5, 7. Therefore, we find that the provision requires only that a panel perform the ranking function and that the Agency retains the ability to designate which employees will be on the ranking panel.

We, therefore, distinguish this case from those in which the Authority has held that proposals interfered with the right to assign work because they required management to assign specific duties to particular individuals. See, for example, National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 7 FLRA 235, 239-40 (1981). The instant provision does not specify which employees will rate and rank candidates, and under the provision the Agency retains its ability to designate who will be on the ranking panel. Therefore, we reject the Agency's contention that the provision is inconsistent with its right to assign work because the provision requires the Agency to assign work to individuals not chosen by management.

In addition, to the extent that the Agency argues that the provision violates its right to assign work because the provision requires the Agency to take some action, we reject that argument as well. Section 7106(b) of the Statute provides that "nothing" in section 7106 shall preclude parties from negotiating "procedures which management officials of the agency will observe in exercising any authority" under section 7106. As we have concluded above, this provision constitutes a procedure for the Agency to observe in exercising its right to make selections. This procedure, like many procedures, necessitates the assignment of work to fulfill its requirements. See American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1014-16 (1988). To bar the negotiation of procedures that would otherwise be negotiable under section 7106(b)(2) because they entail the assignment of work to agency personnel would nullify section 7106(b)(2) and overlook the explicit purpose and intent of that subsection. Id.

To conclude that a proposal or provision interferes with management's right to assign work simply because it requires an agency to take some action would completely nullify the obligation to bargain because no obligation of any kind could be placed on management through negotiations. See, for example, National Labor Relations Board Professional Association and General Counsel, National Labor Relations Board, 32 FLRA 557, 564 (1988). Consequently, we conclude that the provision does not directly interfere with the Agency's right to assign work.

C. The Provision Does Not Interfere with the Right To Determine Organization

The Authority has found that the right to determine organization refers to the administrative and functional structure of an agency, including the relationships of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. See, for example, Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 25 FLRA 465, 473 (1987). This right encompasses the determination of how an agency will structure itself to accomplish its mission and functions. This determination includes such matters as the geographic locations in which an agency will provide services or otherwise conduct its operations,(2) how positions will be structured in terms of grade levels,(3) and how the agency will be divided into organizational entities.(4)

The Agency argues that the provision requires it to establish an organizational component to perform an Agency function and is like a proposal which the Authority found nonnegotiable in Pearl Harbor, 23 FLRA 189 (1986). In Pearl Harbor the agency had established, by regulation, a committee to periodically review occupational safety and health deficiency abatement projects and to address and resolve problems in its deficiency abatement program. The regulation also specified the composition of the committee. The proposal in Pearl Harbor would have prevented the agency from disestablishing that committee and required the addition of union representatives to the membership of the committee. The Authority found that, by requiring the agency to retain the committee and to add union representatives to its membership, the proposal interfered with management's decision as to the formal organizational structure by which it made decisions and interfered with the agency's right to determine its organization.

The provision here neither requires the Agency to establish or retain a specific organizational component nor specifies the composition or structure of an organizational component. The provision leaves to the Agency's discretion the determination of how the requirement that a "panel" be used for the rating and ranking process will be implemented within its organization. That is, under this provision the Agency retains the ability to establish a formal organizational structure, delegate the "panel" responsibility to an existing organizational structure, use ad hoc committees to perform the "panel" responsibility,(5) or choose any other avenue to implement the provision as long as more than a single individual is involved in the rating and ranking process. Thus, without addressing the continued viability of the Authority's holding in Pearl Harbor as to the agency's right to determine its organization, we find that the provision here is distinguishable from the proposal in Pearl Harbor.

We find that a provision that is limited to requiring that the rating and ranking of candidates will be accomplished by a "panel" rather than a single individual does not interfere with the Agency's right to determine its administrative and functional structure. Therefore, we conclude that the provision does not interfere with the Agency's right to determine its organization.

D. Conclusion

The provision does not interfere with the Agency's rights to make selections, assign work or determine its organization. The provision constitutes a procedure that the Agency will observe in exercising its right to make selections and which is negotiable under section 7106(b)(2) of the Statute.

Because the provision does not interfere with the Agency's management rights, it is unnecessary to address the Union's alternative contention that the provision is negotiable as an appropriate arrangement within the meaning of section 7106(b)(3). Therefore, the Agency's contention that we should not consider the Union's arguments concerning the applicability of section 7106(b)(3) to this provision because the arguments were raised for the first time in the Union's response is moot. We note, however, that the Authority's regulations do not prohibit unions from raising issues under section 7106(b)(3) in their responses to agency statements of position. See American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587, n.1 (1987), petition for review as to other matters filed sub nom. U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia v. FLRA, No. 88-8006 (11th Cir. Jan. 5, 1988).

V. Order

The Agency shall rescind its disapproval of, and give effect to, the provision that is set forth in part II of this decision.(6)




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The provision disapproved by the Agency contained two sentences. The Agency in its statement of position makes arguments regarding the negotiability of both sentences. However, the Union does not challenge the Agency's disapproval of the second sentence and has filed an appeal only as to the first. Union response at 2. Therefore, we need not address the Agency's arguments concerning the second sentence.

2. See, for example, Association of Civilian Technicians, Pennsylvania State Council and Adjutant General of Pennsylvania, 29 FLRA 1292 (1987), Decision on Reconsideration, 31 FLRA 824 (1988).

3. See, for example, American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 26 FLRA 452, 455-57 (1987).

4.