File 2: Opinion of Member Pope
[ v58 p11 ]
Dissenting Opinion of Member Pope:
For the reasons that follow, I would find that the Union's proposal does not affect management's right to select under § 7106(a)(2)(C) of the Statute.
The Authority has never considered whether a proposal permitting a union representative to attend job interviews is negotiable. However, the Authority has held that proposals permitting union participation in "wholly management related" meetings where management rights are discussed affect those rights. NFFE, Local 1167, 6 FLRA 574, 580 (1981). The Authority has also held that proposals providing for union participation in "discussions and deliberations leading to decisions" involving the exercise of management's rights affect those rights. AFGE, Local 1923, 44 FLRA 1405, 1442 (1992)(AFGE) (citing NFFE, Local 1437, 35 FLRA 1052 (1990) (NFFE)).
Applying these principles, I am unable to agree that permitting Union representatives to observe PBIs affects management's right to select. First, PBIs are not wholly management-related meetings; by nature, PBIs involve at least one non-manager (the candidate). Second, although the Agency asserts that during PBIs, it is engaging in dialogue and deliberations concerning its right to select, the Agency has not claimed that the dialogue is among managers or others designated by management. [n1] Indee