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The decision of the Authority follows:
24 FLRA No. 54 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY Agency Case No. 0-NG-848 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 provision of a negotiated agreement which was disapproved by the Agency head pursuant to section 7114(c) of the Statute. For the reasons set forth below, we find this provision to be negotiable. /1/ II. Procedural Issues The Agency's statement of position was untimely filed and has not been considered herein. The Agency's request to file an additional submission pursuant to section 2424.8 of the Authority's Rules and Regulations is denied. The Authority granted the request of the Office of Personnel Management to file an amicus curiae brief in this case. III. Union Provision Article 17, Section 3(b) (b) Eligible candidates from within the NTEU, Chapter 201 bargaining unit will be considered for promotion pursuant to the terms of this Article and submitted to the selecting official for appointment. In the event a bargaining unit candidate is not selected for the position, non-bargaining unit candidates may not be submitted to the selecting official for consideration any sooner than ten calendar days following submission of the Best Qualified list of bargaining unit candidates. This procedure does not apply when filling GS-1 positions. IV. Positions of the Parties The Agency disapproved the disputed provision on the grounds that it conflicted with Federal law, namely, 5 U.S.C. Sections 2301(b)(1) and 2302(b)(6). /2/ OPM, in its amicus brief, contends that the disputed provision, by granting priority consideration to bargaining unit employees, gives these employees an advantage in a selection action because of their bargaining unit status, a criterion which is unrelated to the ability, knowledge and skills necessary to perform the duties assigned to a particular position. Thus, OPM concludes, the provision violates section 2301(b)(1) of title 5. Similarly, OPM claims that because the provision imposes a ten-day delay in considering applicants from outside the unit, it denies non-bargaining unit applicants an opportunity for selection and promotion equal to that received by bargaining unit applicants. Hence, OPM argues, the provision would also constitute a prohibited personnel practice under section 2302(b)(6) of title 5. OPM also argues that the disputed provision conflicts with FPM Chapter 335, subchapter 1-4, Requirement 1, which implements the merit system principle set out in 5 U.S.C. Section 2301(b)(1) and requires that identification, qualification, evaluation and selection of candidates for promotion be "based solely on job-related criteria." Rather, according to OPM, the provision mandates that a non-job-related criterion -- bargaining unit status -- be considered in the job selection process. The Union argues that the disputed provision neither conflicts with merit system principles nor prevents the Agency from exercising its reserved rights. V. Analysis and Conclusions We turn first to the argument that the provision conflicts with 5 U.S.C. Section 2301(b)(1), as implemented by the FPM, because the provision mandates that a non-job-related criterion be considered in the job selection process. Contrary to this claim, the disputed provision does not concern the criteria for selection; it concerns the area of consideration that will be used in identifying candidates for selection. In effect, the provision provides that the initial area of consideration for promotion will be bargaining unit members, but that such area of consideration can subsequently be expanded. OPM's regulations allow agencies wide discretion in selecting the area of consideration. Specifically, FPM Chapter 335, subchapter 1-4, Requirement 2 leaves to agencies the discretion to determine the breadth of the area of consideration necessary to obtain qualified candidates. /3/ Nothing in this section of the FPM precludes an agency from determining that a bargaining unit will supply a sufficient quantity of high quality candidates and, thus, is an appropriate area of consideration. Moreover, this provision does not require that the Agency limit the area of consideration to the bargaining unit. It only provides that (1) eligible bargaining unit candidates will be considered for promotion before non-bargaining unit candidates and (2) non-bargaining unit candidates may not be considered until ten days after submission of the "Best Qualified" list of bargaining unit candidates. Nothing in the proposal or the parties' submissions indicates that management would be required to make its selection on the basis of anything other than job-related criteria. Thus, this provision is not inconsistent with either 5 U.S.C. Section 2301(b)(1) or with FPM Chapter 335. Additionally, the Authority has consistently held that proposals which require only that consideration be given to employees within a bargaining unit in filling vacant positions, but which do not prevent management from considering other applicants or expanding the area of consideration once bargaining unit employees have been considered, constitute negotiable procedures pursuant to section 7106(b)(2) of the Statute. See, for example, Association of Civilian Technicians, New York State Council and State of New York, Division of Military and Naval Affairs, Albany, New York, 11 FLRA 475 (1983) (Proposal 1); Association of Civilian Technicians, Inc., Pennsylvania State Council and Adjutant General, Department of Military Affairs, Pennsylvania, 4 FLRA 77 (1980). As for the claim that this provision constitutes a prohibited personnel practice within the meaning of 5 U.S.C. Section 2302(b)(6) because it imposes a delay before non-bargaining unit employees may be considered for selection, the proposal does not require the selection of any individual for a position. The Agency remains free to select any candidate, from within or outside of the bargaining unit, for the position. Thus, the provision does not grant "any preference or advantage not authorized by law, rule or regulation to any employee or applicant for employment" as prohibited by 5 U.S.C. Section 2302(b)(6). We turn now to the issue whether the provision conflicts with management's right to select under section 7106(a)(2)(C) of the Statute. We conclude that there is no conflict. This provision only provides that (1) eligible bargaining unit candidates will be considered for promotion before non-bargaining unit candidates, and (2) non-bargaining unit candidates may not be considered sooner than ten days after submission of the "Best Qualified" list of bargaining unit candidates. Hence, this provision merely delays management's exercise of its right to select for permanent promotion under section 7106(a)(2)(C) of the Statute. This delay only would occur under the very limited circumstance when (1) there are qualified individuals in the bargaining unit, and (2) management decides not to select one of those employees. Moreover, it would not prevent management from filling a position on a temporary basis in particular circumstances. From these facts, it is our conclusion that the provision would not impose any substantive limitation on management's exercise of its right. Rather, the provision would establish a procedures for management to follow in exercising its right -- albeit one which, under the very narrow circumstances outlined above, would delay management's ability to select for permanent promotion from appropriate sources other than the bargaining unit until ten days had elapsed. It is well established that such a procedure which delays but does not prevent management from acting at all is negotiable under section 7106(b)(2) of the Statute. American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom., AFGE v. FLRA, 445 U.S. 945 (1982). We do not apply the "acting at all" standard here as a per se rule. Rather, we apply this standard recognizing the limited circumstances in which the provision would have any effect at all on management's exercise of its reserved rights. As the Authority emphasized in Dix-McGuire, "Congress did not intend subsection (b)(2) to preclude negotiation on a proposal merely because it may impose on management a requirement which would delay implemention of a particular action involving the exercise of a specific management right. Rather, as the Conference Report indicates, subsection (b)(2) is intended to authorize an exclusive representative to negotiate fully on procedures, except to the extent that such negotiations would prevent agency management from acting at all." Dix-McGuire, supra, 2 FLRA at 155, citing the Statute's Conference Report, S. Rep. No. 1272, 95th Cong., 2d Sess. 158 (1978), reprinted in Sub-comm. on Postal Personnel and Modernization of the House Comm. on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 826. See also Department of Defense v. FLRA, supra, 659 F.2d at 1153-58, where the Court of Appeals for the D.C. Circuit concluded that "the 'acting at all' standard is a reasonable and natural construction of the statutory language" which "finds support in . . . the legislative history . . ." Id. at 1153-54. We find no support in the record for concluding that the proposal "realistically" would have any more extensive effect on management's operations than that set forth in our analysis of the proposal. VI. Order The Agency must rescind its disapproval of the disputed provision. Issued, Washington, D.C. December 17, 1986. /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY Dissenting Opinion of Chairman Calhoun I agree that the provision does not violate 5 U.S.C. Section 2302. Therefore, it would be within the duty to bargain unless it conflicts with management's right to select under section 7106(a)(2)(C) of the Statute. I disagree with my colleagues and find that in certain circumstances the provision directly interferes with management's right to select and is nonnegotiable. The Agency may determine, for a variety of reasons, that it is necessary to fill a position in fewer than ten days. For example, the Agency may decide that its mission accomplishment requires the immediate filling of a particular position. If management made that determination, in accordance with its rights under the Statute, the provision would require the Agency to either: (1) select a bargaining unit employee, in violation of its right under section 7106(a)(2)(C) to select from any appropriate source; or (2) wait ten days in order to select a candidate, which would be inconsistent with its determination that its mission accomplishment required the immediate filling of the position. In both circumstances, the provision directly interferes with the Agency's right to select under the Statute. Because the provision directly interferes with a substantive right reserved by section 7106(a) to management discretion, it is by definition not a negotiable procedure under section 7106(b)(2). See, for example, Local 32, AFGE v. FLRA, 728 F.2d 1526, 1529 (D.C. Cir. 1984). My conclusion that management's ability to determine that it may need to make a selection for a position within a certain time is encompassed within the right to select is consistent with the Authority's approach to similar rights under section 7106(a). For example, as the D.C. Circuit held in affirming the decision in National Treasury Employees Union and Bureau of the Public Debt, 3 FLRA 768 (1980): Without a doubt, the right to determine what work will be done, and by whom and when it is to be done, is at the very core of successful management of the employer's business, whether a private sector enterprise or the public sector operations of a federal agency. It follows necessarily that this right is essential to management's ability to function in an effective manner. The Authority's construction of Section 7106(a) as a reservation of this invaluable right to management, thereby insulating it from dilution at the bargaining table, is thus fully obedient to the congressional command that the Act be interpreted in a manner consistent with the exigencies of efficient government. National Treasury Employees Union v. FLRA, 691 F.2d 553, 563 (D.C. Cir. 1982) (footnote omitted; emphasis added). Similarly, management's right to select included its ability to select an individual immediately if in management's view it needs to be able to do so in order to function in an effective manner. My colleagues characterize the effect of the provision on management's right to select as delay which does not prevent management from "acting at all" and, as a result of that characterization, find the provision to be negotiable under the Dix-McGuire decision. I disagree with that analysis. In my view, such per se rules as "acting at all" often muddy rather than clarify the issues. I believe that the Authority has an obligation to examine the real effects of proposals on management rights, and to evaluate whether "substantive management rights have realistically been impaired." National Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477, 483 (D.C. Cir. 1986). The provision in this case undoubtedly conflicts with the right to select, even if that conflict exists for only ten days. Further, the right to select is not exercised in a vacuum. A selection for a position is made because work needs to be accomplished. The application of the "acting at all" standard in this situation avoids the real issue, in my view, by emphasizing the period of time involved rather than the effect that time may have on the exercise of the right involved. Issued, Washington, D.C. December 17, 1986. /s/ Jerry L. Calhoun, Chairman --------------- FOOTNOTES$ --------------- (1) Chairman Calhoun's separate opinion begins on page 7. (2) 5 U.S.C. Section 2301(b)(1) contains the following "merit system principle": (1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. 5 U.S.C. Section 2302(b)(6), "Prohibited personnel practices," provides that any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not: (6) grant any preference or advantaye not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment(.) (3) Requirement 2 provides, in pertinent part, that an "(a)rea of consideration must be sufficiently broad to ensure the availability of high quality candidates, taking into account the nature and level of the positions covered."