22:0385(37)NG - AFGE Local 2298 and Navy, Navy Exchange, Charleston, SC -- 1986 FLRAdec NG

 22 FLRA No. 37
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 2298
 Union
 
 and
 
 DEPARTMENT OF THE NAVY
 NAVY EXCHANGE
 CHARLESTON, SOUTH CAROLINA
 Agency
 
                                            Case No. 0-NG-1214
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of 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 one Union proposal.
 
                            II.  Union Proposal
 
                 Article 19 -- Promotions and Assignments
 
          Section 5:  Normally rating and ranking panels will not be used
       for unit positions, however, if they are used, the selecting
       official will not be a member of the panel and the Union will be
       provided the opportunity to have an observer present to review the
       deliberations of the panel.
 
                       A.  Positions of the Parties
 
    The Agency contends the proposal violates its right, to direct
 employees, to assign work, and to select employees for promotion under
 section 7106(a)(2)(A), (B) and (C) of the Statute, respectively.
 
    The Union argues that the proposal does not violate management's
 rights because it asserts that as the proposal "simply allows a union
 representative to observe the proceedings," it differs from proposals
 found nonnegotiable which have called for union participation in the
 rating and ranking process.  The Union contends that while it does "not
 envision the observer as being able to stop the proceedings, or having
 the authority to interfere in the timely rating and ranking, (it) do(es)
 see the observer as being able to challenge questionable practices of
 the panel.  Such matters could and likely would be resolved . . . on the
 spot." Union Reply Brief at 3.
 
    The Union also describes the clause as "a form of 'sunshine act'" and
 asserts that the "management decisional process is not shielded from
 observation by the privacy act, any other law, nor any government-wide
 regulation." Union Reply Brief at 3.
 
                               B.  Analysis
 
    While the Union claims that its representative on the rating and
 ranking panels would only be an observer, its statements that such
 representative would be "able to challenge questionable practices of the
 panel" and that "(s)uch matters . . . likely would be resolved . . . on
 the spot" indicate a more active role for its representative in
 proceedings of the panels.  However, such distinction in the actual
 intended role of the Union's representative does not affect the
 negotiability of this proposal.
 
    The Authority has held that a provision requiring participation of a
 union representative on a promotion rating panel interfered with
 management's right to select under section 7106(a)(2)(C) of the Statute.
  American Federation of Government Employees, AFL-CIO, Mint Council 157
 and Department of the Treasury, Bureau of the Mint, 19 FLRA No. 81
 (1985)(provision 3).  The Authority has also held that even a purely
 passive role of a union observer at management meetings concerning the
 exercise of management rights (in that case involving the development of
 performance standards) would interfere with an agency's right freely to
 engage in internal discussion and deliberations prior to making
 decisions on those management rights.  American Federation of Government
 Employees, AFL-CIO, Local 2302 and U.S. Army Armor Center, Ft. Knox,
 Kentucky, 15 FLRA 17, 18-19 (1984) (Union proposal 2).  Thus, even if
 the Union observer contemplated by this proposal were to play only a
 passive role in attending deliberations of the panel, the proposal must
 be found to be nonnegotiable because such presence would interfere with
 management's right to select under section 7106(a)(2)(C).
 
    Finally, the Union's reliance on the Authority's decisions in
 National Federation of Federal Employees, Local 541 and Veterans
 Administration Hospital, Long Beach, California, 12 FLRA 270 (1983) and
 National Federation of Federal Employees, Local 1579 and Veterans
 Administration Regional Office, Louisville, Kentucky, 12 FLRA 600 (1983)
 is misplaced.  Unlike the proposal in this case, the Proposal found
 negotiable in Veterans Administration Hospital, Long Beach, and Proposal
 1 found negotiable in Veterans Administration Regional Office,
 Louisville, provided for union participation in incentive awards
 programs which did not concern the exercise of management rights.
 
    The Agency has not demonstrated how this proposal would interfere
 with management's rights to direct employees under section
 7106(a)(2)(A), or to assign work under section 7106(a)(2)(B) of the
 Statute.  The Authority shall, therefore, make no determinations on
 those claims.
 
                              C.  Conclusion
 
    The Union proposal is inconsistent with management's right to select
 under section 7106(a)(2)(C) of the Statute and therefore is not
 negotiable.
 
                                IV.  Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition be, and it hereby
 is, dismissed.
 
    Issued, Washington, D.C. July 7, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY