File 2: Opinion of Member Pope
[ v61 p225 ]
Member Carol Waller Pope, concurring in part and dissenting in part:
I agree, for the reasons stated by the majority, that Proposals 4, 6, 7, and 9, are within the duty to bargain, and that Proposals 5, 8, and 10 are outside the duty to bargain. I also agree that Proposal 1 is outside the duty to bargain based on its effect on the Agency's right to contract out. [n1] I disagree with the majority=s determination that Proposals 2 and 3 are outside the duty to bargain.
Proposal 2 states that Aunit employees shall receive first consideration@ for unit vacancies. As explained by the Union and interpreted by the majority, the proposal permits simultaneous solicitation of unit and nonunit applications, but requires that the Agency "perform any actions in the selection process with regard to bargaining unit candidates before taking those same actions for nonunit candidates." Majority Opinion at 6. As the Union explained, "if management reviews a candidate's resume and SF-171, it would do so for all bargaining unit employee candidates before reviewing those documents from non-bargaining unit candidates." Post-petition Conference Report at 2.
Interpreted in this manner, it is clear that Proposal 2 does not affect management=s right to select. In this regard, the Authority consistently has held that Aa proposal [that] requires an agency to give first consideration to bargaining unit employees when filling vacant positions, but does not prevent management from timely considering other applicants or expanding the area of consideration once bargaining unit employees are considered@ does not affect the right to select under ' 7106(a)(2)(C). Ass=n of Civilian Technicians, Evergreen & Rainier Chapters, 57 FLRA 475, 478-81 (2001) (ACT) (Chairman Cabaniss dissenting in part) (citing ACT, Volunteer Chpt. 103, 55 FLRA 562, 565 (1999) (Chair Segal dissenting on other grounds); Laurel Bay Teachers Ass=n OEA/NEA, 49 FLRA 679, 687 (1994); AFGE, Local 1923, 44 FLRA 1405, 1493-94 (1992); NTEU, 43 FLRA 1279, 1287-88 (1992)).
The majority's conclusion to the contrary is based on an unsupported construction of the proposal, contrary to the Union's explanation which the majority purportedly adopts. In particular, the majority states that the proposal requires that "priority consideration be given unit candidates before nonunit candidates are rated and ranked." Majority opinion at 7, 8. However, nothing in the wording of the proposal or the Union's explanation of it indicates that nonunit candidates may not be rated and ranked until all steps of the