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U.S. Federal Labor Relations Authority

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24:0494(54)NG - NTEU and Treasury -- 1986 FLRAdec NG

[ v24 p494 ]
The decision of the Authority follows:

 24 FLRA No. 54
                                            Case No. 0-NG-848
                         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
    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
                                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
    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
          (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."