49:0382(32)NG - - AFGE, Local 3434 and NASA, Marshall Space Flight Center, AL - - 1994 FLRAdec NG - - v49 p382



[ v49 p382 ]
49:0382(32)NG
The decision of the Authority follows:


49 FLRA No. 32

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3434

(Union)

and

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

MARSHALL SPACE FLIGHT CENTER, ALABAMA

(Agency)

0-NG-2174

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

March 4, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

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) and concerns the negotiability of a single proposal. For the reasons that follow we find that the proposal, which relates to the appointment of a Union representative to the rating panels that evaluate candidates for purposes of filling positions competitively, is nonnegotiable. In this regard, the proposal directly interferes with management's right to make selections for appointments under section 7106(a)(2)(C) of the Statute and does not constitute an appropriate arrangement that is negotiable under section 7106(b)(3) of the Statute.

II. Preliminary Matters

The Agency's statement of position was untimely filed. Upon receipt of the statement of position, the Authority ordered the Agency to show cause why its statement of position should be considered in view of the fact that information set forth in the statement of position indicated that it was untimely. In the Order To Show Cause, the Agency was also informed that: (1) the statement of service accompanying the statement of position did not comply with regulatory requirements in that it did not show service on the Union's representative of record, and (2) an insufficient number of copies of the statement of position had been submitted to the Authority. In its response to the Order To Show Cause, the Agency includes some statements in support of its position that the proposal at issue in the case is nonnegotiable. Those statements, which extend beyond the scope of the Order To Show Cause, will not be considered in this decision.

As to the issues raised by the Authority's Order, the Agency concedes that under a "technical reading" of the Authority's regulations, its statement of position was untimely; however, it argues that under the circumstances involved, the time limits should be waived and the statement of position considered by the Authority. Response to Order at 1. The Agency acknowledges that the time limit for filing its statement of position was October 7, 1993. According to the Agency, on that date it placed its statement of position in Federal Express overnight mail rather than placing it in the U.S. Postal Service mail system. The statement of position was received by the Authority on October 8, 1993. The Agency asserts that its election to use Federal Express rather than the regular U.S. Postal Service mail system was an attempt to ensure more expeditious delivery to the Authority.

In response to the other two issues raised by the Order To Show Cause, the Agency states that a copy of the statement of position was sent by certified mail to the Union's representative of record on October 14, 1993, and it was received by him on October 18, 1993. To document this last fact, the Agency submits a signed and dated certified mail return receipt. The Agency also provides the requisite number of copies of its statement of position.

In its response, which was filed pursuant to section 2424.7 of the Authority's regulations on November 2, 1993, the Union moves that we rescind the Order To Show Cause insofar as it concerns the timeliness of the Agency's statement of position, arguing that it gives the Agency "an extraordinary second bite at timeliness . . . ." Response at 4. Additionally, the Union contends that the Agency's delay in serving the statement of position on the Union's representative of record "advertently or inadvertently defeated the 15-day period which is afforded to AFGE" to file a response and "substantially impaired" the Union's ability to provide a response. Id. at 5. As a consequence, the Union requests that if either the Agency's statement of position or the Agency's response to the Order To Show Cause are considered, the Union be granted the opportunity to file a supplemental submission "consisting of additional argument which, owing to the shortened response period, we did not make in this submission." Id.

Initially, we reject the Union's motion that we rescind the Order To Show Cause. Where there is any possibility that a party can show that a submission is, in fact, timely, or can meet the standard for a waiver of a time limit as provided in section 2429.23 of the Authority's regulations, we are not precluded by the Statute from issuing an Order to Show Cause as a preliminary step to rejecting a submission as untimely. Turning to the issue of whether the Agency's statement of position was timely filed, we reiterate our statement in the Order To Show Cause that Federal Express is not a component of the U.S. Postal Service. Therefore, the Agency's statement of position is deemed to have been filed on the date it was received by the Authority. See U.S. Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama and American Federation of Government Employees, Local 1858, 43 FLRA 1359, 1361 (1992). Consequently, the Agency's statement of position was untimely filed. Pursuant to section 2429.23 of the Authority's regulations, we may waive an expired time limit such as that for filing agency statements of position in negotiability cases in extraordinary circumstances. However, no extraordinary circumstances have been shown by the Agency in this case, and we reject its request that we waive the expired time limit for its statement of position. We will not consider the Agency's statement of position in this case.

We also reject the Union's request to file a supplemental statement. We note that the Union's reply brief was filed on November 2, 15 days after the Union's representative of record received the Agency's statement of position on October 18. Under section 2424.7 of the Authority's regulations, a union's reply brief must be filed "[w]ithin fifteen (15) days after the date of the receipt by an exclusive representative of a copy of an agency's statement of position." If a time limit for filing a document is based on the date of receipt of an earlier document, the party filing the subsequent document does not receive additional time for mailing as provided for by section 2429.22 of the Authority's regulations. See National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 700-02 (1992). Thus, the Union's time limit for filing its reply brief was 15 days following receipt of the Agency's statement of position. In this case, the Union availed itself of the full 15 days after its representative of record received the Agency's statement of position, and its claim that the Agency's delay in serving that representative resulted in a "shortened response period" is unfounded.

III. The Proposal

ARTICLE 25

Competitive Placement Plan

Section 25.07

b. When a rating panel is used to evaluate candidates for a position in the unit filled through the competitive procedures of the Competitive Placement Plan, AFGE will be provided an opportunity to have a representative serve as a member of the three person evaluation panel. AFGE will select its representative for the panel in the following manner:

(1) AFGE will provide the Personnel Officer, or designee, the name of an employee, familiar by experience with the duties of the position(s) to be filled, prior to the closing date of the announcement or within three (3) days after the closing date. The name of the AFGE representative must be received by this deadline.

(2) The representative may not be an applicant for the position(s).

(3) AFGE will determine whether the representative is willing to serve on the panel and will be available for panel deliberation.

(4) The selected representative will serve as a full participant in panel deliberation and not as a representative of a particular employee or group of employees.

(5) If a timely list is not received from the AFGE as specified above, if any of the representatives do not meet the above criteria, if the representative is not qualified to serve on a panel, or if the AFGE representative does not appear for a panel meeting, the panel will proceed without a representative of AFGE.

IV. Positions of the Parties

As stated above, the Agency's statement of position was untimely filed and will not be considered. In its declaration of nonnegotiability, which was submitted with the Union's petition, the Agency asserted that the proposal excessively interfered with management's right to select under section 7106(a)(2)(C) of the Statute.

Initially, as a matter of procedure, the Union requests that any portions of the proposal that are negotiable be severed from those that are not for purposes of the decision in this case.

The Union acknowledges that the Authority has "repeatedly held that proposals involving Union observation of or participation in promotion panels would directly interfere with the management rights to assign work and to select for promotion." Response at 8 (emphasis omitted). The Union contends that this Authority precedent has been based on agency assertions that such proposals would directly interfere with assigning an employee to perform work other than promotion panel meetings or preclude free discussion and deliberation by management concerning the various applicants. The Union argues that the Agency has made no claim of such an effect with respect to the proposal in this case and that, in fact, it is identical to a provision contained in a collective bargaining agreement between the parties that has existed for several years. The Union contends that in the absence of any claim by the Agency that the existing provision has resulted in any interference with its management rights, the proposal in this case is distinguishable from those that the Authority has found nonnegotiable.

The Union asserts that even if this proposal does directly interfere with management's rights, it is nevertheless negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Union argues that the extent of any interference with management's rights should be "gauged, in part, by recognizing the current force and effect of Executive Order 12871 and the concomitant Government policy favoring Labor-Management Partnership." Id. at 7.

The Union states that under existing Agency regulations, all applicants for selection must be measured against the same job-related criteria. The Union contends that although this requirement is "consistent with merit principles," it adversely affects employees who "possess high qualifications in areas other than the job-related criteria, which are determined solely by the employer, but who possess lesser qualifications in areas encompassed by the criteria selected by the employer." Id. at 11. The Union further contends that the proposal "minimizes the adverse effects on such applicants" by ensuring that the employer-determined criteria are consistently and equitably applied to all applicants and that no unauthorized criteria are used in the evaluation process. Id. The Union argues that permitting bilateral promotion evaluation is a benefit to both the Agency and employees and enhances the efficiency and productivity of the Government. The Union asserts that under the balancing test for determining appropriate arrangements, this proposal does not excessively interfere with management's rights.

V. Analysis and Conclusions

Rating and ranking panels are part of the process used by an agency to select candidates to fill vacant positions. Consequently, the Authority has long held that such panels involve management's right to select under section 7106(a)(2)(C) of the Statute. See, for example, National Federation of Federal Employees, Local 1437 and United States Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1061 (1990) (Picatinny Arsenal); American Federation of Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640, 643-44 (1985) (Provision 3) (Bureau of the Mint).

The Authority consistently has held that the exercise of management's rights also encompass actions integral to the exercise of the right, including discussion and deliberation on the relevant factors upon which the decision to act is made. See, for example, Picatinny Arsenal, 35 FLRA at 1061-62; Bureau of the Mint, 19 FLRA at 643-45. Requiring union presence, whether active or passive, at these discussions and deliberations interferes with an agency's right to engage in internal discussions and deliberations prior to making decisions to take actions that are within the purview of section 7106(a) of the Statute. See, for example, Service Employees International Union, AFL-CIO, Local 100 and Department of Health and Human Services, Gillis W. Long Hansen's Disease Center, Carville, Louisiana, 34 FLRA 704, 706 (1990) (Gillis W. Long Hansen's Disease Center). Thus, requiring a union representative, even as a passive observer, on a rating and ranking panel directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 2298 and Department of the Navy, Navy Exchange, Charleston, South Carolina, 22 FLRA 385 (1986), aff'd, No. 86-1497 (D.C. Cir. Dec. 15, 1987) (mem., per curiam). See also American Federation of Government Employees, AFL-CIO, Local 2094 v. FLRA, 833 F.2d 1037, 1041-43 (D.C. Cir. 1987), aff'g, American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710, 712-13 (1986); National Federation of Federal Employees, Local 1745 v. FLRA, 828 F.2d 834 (D.C. Cir. 1987), aff'g, National Federation of Federal Employees, Local 1745 and Veterans Administration, 13 FLRA 543 (1983) (Proposal 1).

Based on well established precedent, we find that the proposal in this case directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute, because it requires that a Union representative participate as a member on rating and ranking panels that evaluate employees for promotion.(2) The Union's assertion that a provision that is identical to this proposal has been included in a previous contract between the parties is irrelevant to determining whether this proposal directly interferes with section 7106(a) of the Statute. The inclusion of a provision in a previous contract is not dispositive of the issue of whether that provision or any identical proposal is inconsistent with applicable law and regulation. See Portsmouth Federal Employees Metal Trades Council and Portsmouth Naval Shipyard, 34 FLRA 1150, 1157 (1990).

Having found that the proposal directly interferes with management's right to select, we consider whether this proposal is nevertheless negotiable as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), the Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement. First, we determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA No. 24 (1994) (Member Armendariz, concurring in part and dissenting in relevant part) (Patent and Trademark Office). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposed arrangement is appropriate, or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management or rights involved. See KANG, 21 FLRA at 31-32.

The application of the first part of this analytical framework has been the subject of recent court decisions in National Labor Relations Board v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993) (per curiam) (NLRB v. FLRA); United States Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992) (INS v. FLRA); and United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992) (Minerals Management Service). As expressed in NLRB v. FLRA, the U.S. Court of Appeals for the District of Columbia Circuit concluded that "a prophylactic measure applicable to all employees, instead of being 'tailored to benefit or compensate those employees suffering . . . adverse effects[]'" does not qualify as an arrangement under section 7106(b)(3) of the Statute. NLRB v. FLRA, 2 F.3d at 1198 (quoting Minerals Management Service, 969 F.2d at 1162). The U.S. Court of Appeals for the 5th Circuit adopted a similar approach in INS v. FLRA. However, the District of Columbia Circuit emphasized that it does not require that an arrangement "'target in advance the very individual employees who will be adversely affected.'" Minerals Management Service, 969 F.2d at 1163 (quoting United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1071 (D.C. Cir. 1992)). Additionally, the court has noted that it does not hold that the "use of the past tense in the phrase 'adversely affected' creates a temporal wall forbidding any negotiability except as to harm that has already occurred." Minerals Management Service, 969 F.2d at 1163.

In Patent and Trademark Office, the majority of the Authority stated:

As a general proposition, we agree with the courts that under section 7106(b)(3) of the Statute, an arrangement must be tailored to compensate or benefit employees suffering adverse effects flowing from the exercise of management's rights and cannot be so broad in its sweep that it applies to all employees regardless of whether they are likely to be adversely affected by management action that comes within the purview of management's rights. However, we do not believe that we should require proposals presented as appropriate arrangements to be so narrowly tailored that the ability of adversely affected employees to obtain benefits under section 7106(b)(3) of the Statute would be seriously impaired. Such a reading would not give full effect to section 7106(b)(3), which is intended to "enable[] employees adversely affected by an exercise of Section 7106(a) management rights, though entirely proper, to bargain over arrangements appropriate to ease the impact of management's action." [Citation omitted.]

Slip op. at 9.

The majority further stated: