[ v26 p497 ]
The decision of the Authority follows:
26 FLRA No. 60 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS Agency Case No. 0-NG-1158 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority on a petition for review of negotiability issues filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute and part 2424 of the Authority's Rules and Regulations. It raises issues concerning the negotiability of two proposals. II. Proposal 1 An employee, Chapter President, Chief Steward or Steward will have the right to use a government telephone concerning any matter for which remedial relief may be sought pursuant to the terms of this agreement. When FTS or government leased lines are not available, access shall be for local calls only. A. Positions of the Parties The Agency contends that this proposal is nonnegotiable because use by the Union of the Agency's government telephones is contrary to law and Government-wide regulations, and is not otherwise expressly permitted by the Statute. Specifically, the Agency contends that 31 U.S.C. Section 1348(b), 41 CFR Section 101-37.105-4 (now located at 41 CFR Section 201-38.007) and 5 CFR Section 735.205 restrict use of a Government telephone to "official business," "official Government business," or "officially approved activities." The Agency maintains that the labor-management relations activities of the proposal are restricted by these provisions from being conducted with use of a Government telephone. The Agency claims that a labor organization and labor-management relations activities are no different than any other private organization which is prohibited from conducting its activities with use of Government telephones without reimbursement. For these reasons, the Agency further argues that the proposal is contrary to 31 U.S.C. Section 1301, which provides that appropriations shall be applied only for appropriate purposes. The Union disputes these contentions. B. Analysis and Conclusions The proposal in this case in materially identical in its effect to the ones we considered in National Federation of Federal Employees and General Services Administration, 24 FLRA No. 45 (1986). In General Services Administration, we specifically rejected contentions, virtually identical to the Agency's contentions in this case, that the use of a Government telephone for the purpose of conducting labor-management relations activities is prohibited by law and Government-wide regulations restricting use of a Government telephone to official business. Consequently, for the reasons set forth in General Services Administration, we find in this case that the proposal is not inconsistent with law or Government-wide regulations, as alleged, specifically 31 U.S.C. Sections 1301, 1348(b), 41 CFR Section 201-38.007, and 5 CFR Section 735.205. Moreover, as in General Services Administration, the Agency in this case fails to cite any statutory or regulatory provision which would prohibit it from exercising through negotiations its discretion to determine that use of the Government telephone to conduct the enumerated labor-management relations activities is sufficiently within the interest of the United States so as to constitute official business. Likewise, the proposal does not provide for telephone use which does not comport with cited statutory and regulatory requirements and restrictions. Accordingly, we find that Proposal 1 is within the duty to bargain under the Statute. III. Proposal 2 The FLRA Members disagree over the negotiability of this proposal. The decision and order on Proposal 2, and Chairman Calhoun's dissent immediately follow this decision. IV. Order The Agency must upon request, or as otherwise agreed to by the parties, bargain on Proposal 1. /*/ Issued, Washington, D.C., March 31, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY DECISION AND ORDER ON PROPOSAL 2 Proposal 2 The parties agree that agency employees should receive first consideration for all actions set forth in Section 2A below, except in an emergency or in those instances where there is no employee within the region at a grade level lower than the level specified on the vacancy announcement. First consideration requires that a vacancy be available to agency employees and that they be ranked and considered for selection before any non-ATF applicants are solicited, ranked or considered for selection. A. Positions of the Parties The Agency contends that the proposal is nonnegotiable because it is contrary to merit system principles set forth in 5 U.S.C. Section 2301(b)(1), 5 CFR Section 335.103, and Federal Personnel Manual chapter 335, subchapter 1-4, Requirement 1. The Agency argues that the proposal grants agency employees preferential treatment by being considered first and that such a preference conflicts with the cited merit system principles requiring that the selection actions encompassed by the proposal be based solely on job-related criteria. The Agency also argues that by requiring the Agency to grant such a preference in violation of merit system principles, the proposal would require the Agency to engage in the prohibited personnel practice set forth in 5 U.S.C. Section 2302(b)(6). The Agency similarly contends that the preference required by proposal conflicts with equal employment opportunity principles. Specifically, the Agency argues that the proposal conflicts with 5 CFR Section 300.103(c), prohibiting employment practices that discriminate on the basis of any non-merit factor, and 29 CFR part 1613, requiring that equal opportunity in employment be provided all persons. /1/ Finally, the Agency contends that this proposal directly interferes with its right under section 7106(a)(2)(C) of the Statute to choose from among candidates from any appropriate source in filling positions. Specifically, the Agency argues that the proposal bars consideration of other candidates until all agency employees are considered and that this protracted process could result in a serious delay in filling a vacant position. The Union generally disputes the Agency's contentions. Specifically, the Union asserts that the proposal "merely requires the agency to consider agency employees before others." Union Reply Brief at 3 (emphasis by the Union). Therefore, the Union contends that the proposal is not contrary to merit system principles because it does not grant a preference or advantage and would not define the scope or manner of competition. The Union similarly contends that the proposal does not conflict with section 7106(a)(2)(C) because it merely requires that the Agency consider its employees first before expanding the area of consideration. The proposal does not interfere with management's right to select from any appropriate source. B. Analysis and Conclusions In National Treasury Employees Union and Department of the Treasury, 24 FLRA No. 54 (1986) (Chairman Calhoun dissenting), petition for review filed sub nom. Department of the Treasury v. FLRA, Case No. 87-1084 (D.C. Cir. Feb. 13, 1987), we considered a provision and contentions virtually identical to the proposal and contentions in this case. We rejected the contentions that by granting advance consideration to bargaining-unit employees for certain vacancies, the provision conflicted with merit system principles and required the agency to commit a prohibited personnel practice. We further concluded that the provision did not impose any substantive limitation on management's right to select under section 7106(a)(2)(C). We found instead that the provision constituted a procedure under section 7106(b)(2) and was negotiable even though it would delay in certain circumstances management's ability to select for promotion from other appropriate sources. Consequently, for these reasons, which are fully discussed in Department of the Treasury, we conclude that the proposal does not establish any preference in violation of merit system or equal employment opportunity principles and constitutes a negotiable procedure under section 7106(b)(2). Accordingly, we find that Proposal 2 is within the duty to bargain under the Statute. C. Order The Agency must upon request, or as otherwise agreed to by the parties, bargain on Proposal 2. /2/ Issued, Washington, D.C., March 31, 1987. /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY Separate Opinion of Chairman Calhoun on Proposal 2 The first paragraph of Proposal 2 provides, with exceptions not relevant here, that Agency employees should receive first consideration for Agency positions. The second paragraph of the proposal defines "first consideration" to mean that non-Agency employees may not be "solicited, ranked or considered" for selection until that process has been completed for Agency applicants. In my opinion, the first paragraph, standing alone, would be a negotiable procedure under section 7106(b)(2) of the Statute. It would not interfere with the Agency's exercise of its right to make selections for positions; it would require only that applicants for those positions be considered in a certain order: Agency employees first. By requiring only consideration of internal candidates before outsiders, the first paragraph is distinguishable from Proposal 5 in Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 66 (1987) which would have required the agency to select an internal candidate and was found to be nonnegotiable for that reason. Requiring that Agency applicants be considered before outsiders is consistent with good management, in my view, because it promotes the retention of qualified employees by enhancing their opportunities for promotion. As "first consideration" is defined in the second paragraph, however, I conclude that the proposal is nonnegotiable. The majority relies on its decision in National Treasury Employees Union and Department of the Treasury, 24 FLRA No. 54 (1986), petition for review filed sub nom. Department of the Treasury v. FLRA, No. 87-1084 (D.C. Cir. February 13, 1987), in finding the proposal to be negotiable. The provision in that case required the Agency to wait for at least 10 calendar days before considering outside applicants if a bargaining-unit employee was not selected for a position. In my dissenting opinion in that case, I found that the provision directly interfered with the agency's right to make selections because, in my view, the right to make a selection includes the right to select immediately if necessary for the efficient functioning of the agency. Like the provision in Department of the Treasury, Proposal 2 directly interferes with the Agency's right to select. In fact, since the Agency here would be precluded from even initiating outside recruitment until all internal candidates had been considered, the proposal in all likelihood has a greater impact on management's right than the provision in Department of the Treasury. Therefore, I do not join the majority decision. Issued, Washington, D.C. March 31, 1987. /s/ Jerry L. Calhoun, Chairman --------------- FOOTNOTES$ --------------- (*) In deciding that Proposal 1 is within the Agency's duty to bargain, we make no judgment as to its merits. (1) Because these regulations are generally applicable throughout the Federal Government, we find that they are Government-wide regulations within the meaning of section 7117 of the Statute. See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980). (2) In deciding that Proposal 2 is within the Agency's duty to bargain, we make no judgment as to its merits.