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The decision of the Authority follows:
27 FLRA No. 32 AFSCME, LOCAL 2027 Union and ACTION Agency Case No. 0-NG-1201 DECISION AND ORDER OF 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). The case concerns the negotiability of two proposals. II. Proposal 1 The FLRA Members have expressed different opinions concerning Proposal 1. The decision and order on Proposal 1 and Chairman Calhoun's concurring opinion immediately follow this decision. III. Proposal 2 In those cases where both a removal action is involved and the employee has applied for disability retirement, the agency, upon request of either the employee or his/her representative, agrees to consider placing that employee in LWOP status pending a decisiqon on the disability retirement application. A. Position of the Parties The Agency argues that this proposal violates 5 CFR Section 831.501(d), which provides that an employee's application for disability retirement shall not preclude or delay any other appropriate personnel action by the employing agency. In addition, the Agency argues that this proposal interferes with its rights under section 7106(a)(2)(A) to hire and remove employees. The Union claims that this proposal does not mandate any particular course of action or suggest that the Agency's removal notice must be rescinded. All that the proposal requires, according to the Union, is that the Agency "consider" placing the employee on leave without pay (LWOP) status pending a decision on disability retirement. The Union states that this proposal constitutes a procedural arrangement clearly related to conditions of employment. B. Analysis and Conclusion 1. No Violation of Government-wide Regulations The Government-wide regulation relied upon by the Agency, namely, 5 CFR Section 831.501(d) provides that "(a)n employee's application for disability retirement shall not preclude or delay any other personnel action by the agency." Thus, it is apparent that an agency cannot be required to delay taking a personnel action against an employee simply because the employee has applied for disability retirement. See, for example, Ward v. General Services Administration, MSPB Docket No. SL07528510045 (July 1, 1985). However, it is also clear that an agency does have discretion to delay taking a personnel action against an employee and instead to grant that employee leave without pay pending a decision on that employee's application for disability retirement. See Raymond W. Walker v. Department of the Air Force, MSPB Docket No. DA0752841065 (October 25, 1984). Proposal 2 in this case does not require the Agency to act in any manner inconsistent with the Government-wide regulation. Rather, the proposal only requires the Agency to "consider" taking the action enumerated in the proposal. Thus, we conclude that Proposal 2 does not violate the cited Government-wide regulation. 2. No Violation of Management's Rights The Agency claims that this proposal violates its rights under section 7106(a)(2)(A) to hire and remove employees. We disagree. We noted above that the proposal only requires the Agency to "consider" taking certain action. As such it does not require the Agency to act in any manner which is inconsistent with the rights reserved to it under section 7106 of the Statute. See International Federation of Professiqonal and Technical Engineers, Local 4 and American Federation of Government Employees, Local 2024, AFL-CIO and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 14 FLRA 52 (1984). IV. Order The Agency must, upon request or as otherwise agreed to by the parties, negotiate on Proposal 2. /1/ Issued, Washington, D.C., May 29, 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 1 Proposal 1 Details and Merit Promotion (Article XV, Section E, Paragraph 3). If an eligible employee is not selected under part 3, above, and appears on the best qualified list for the same vacancy after having applied through the competitive process and is not selected, he/she shall be provided written, persuasive reasons for non-selection and given seven (7) days to rebut these reasons to the selecting officially orally and/or in writing. The selecting official shall have seven (7) days to respond in writing. The agency shall not fill the vacancy until the rebuttal phase is complete. A. Position of the Parties The Agency argues that this proposal interferes with its rights to hire employees from any appropriate source under section 7106(a)(2)(A) and (C) of the Statute. According to the Agency, this proposal would allow repromotion eligible bargaining unit members to interject themselves and their judgment into management's decision-making process with respect to filling vacancies. The Agency also contends that this proposal does not constitute a procedure which management must follow in exercising its rights under section 7106 of the Statute, but rather, would submit management's discretion in the hiring process to third party review and judgment. The Union argues that the proposal sets forth a negotiable procedure or arrangement for employees downgraded through no personel fault who are eligible for repromotion. The Union further states that the rebuttal procedure has the purpose of assuring that the selecting official has all the information necessary to make a rational decision. B. Analysis and Conclusion The Union explains that this proposal applies to employees downgraded without personal fault who are eligible for repromotion under the terms of the agreement. The proposal refers to a prior step ("part 3") in the selection process which allows repromotion eligibles to be considered for vacancies outside of the competitive promotion process. Proposal 1 is applicable when a repromotion eligible is not selected for the vacancy during the first stage of consideration but is rated among the best qualified candidates under the merit promotion procedures. The proposal requires that nonselection of a repromotion eligible during the competitive phase of the promotion process be supported by "written, persuasive reasons." The proposal also delays filling the vacancy while the nonselected repromotion eligible "rebuts" the Agency's claimed "persuasive reasons" for the nonselection. The Agency claims this proposal is nonnegotiable because it permits a nonselected repromotion eligible to review and challenge the Agency's reasons for the nonselection. Specifically, the Agency contends that this proposal creates "a procedure akin to a veto or an interlocutory appeal right" which permits a repromotion eligible to "substitute his own judgment for that of management's selecting official as to what constitutes 'persuasive reasons' for the nonselection." Statement of Position at 2. In this connection, the Agency questions "how often a management official's reasons for nonselection are likely to be persuasive to a disgruntled repromotion eligible." Id. at note on 2. This claim is without merit. The proposal in this regard merely requires the Agency to provide the employee with its reasons for not selecting the employee. The inclusion of the proposal's language would not, of course, limit management's rights under section 7106(a)(2)(A) and (C) to hire an otherwise qualified candidate for a position. Further, the proposal would not establish any sort of a standard which management must meet in exercising its rights. The proposal's requirement therefore does not have any particular bearing on whether management's selection decision will ultimately be sustained if challenged in some subsequent proceeding, such as a proceeding before an arbitrator. Challenges to agency selection decisions typically have as their basis a claim by a nonselected employee that the nonselection was improper or in other words, that the reasons for the nonselection were not deemed "persuasive" by the nonselected employee. In such disputed selection action cases where an arbitrator finds that the selection process did not conform with applicable requirements the arbitrator may order the selection rerun or reconstructed as corrective action. See Local R-1-185, National Association of Government Employees and the Adjutant General of the State of Connecticut, 26 FLRA No. 36 (1987). However, the Authority has repeatedly indicated that the incumbent employee in the case is entitled to be retained in the position pending corrective action unless it is specifically determined that the incumbent could not originally have been selected under law and regulation and the parties' collective bargaining agreement. See, for example, American Federation of Government Employees, Local 1546 and Sharpe Army Depot, Department of the Army, Lathrop, California, 16 FLRA 1122 (1984). Further, it is well established that an arbitrator may not order an agency to select a grievant for the position in question unless the arbitrator has determined that the grievant was affected by an unjustified or unwarranted personnel action and that but for such unwarranted action on the part of the agency the grievant would have been selected for the position. For example, Veterans Administration Hospital and American Federation of Government Employees Union, Lodge 2201, 4 FLRA 419 (1980). Moreover, the mere failure to provide "persuasive reasons" cannot by itself constitute such an improper action on the part of the Agency so as to permit an arbitrator to order a grievant selected for the position. See Picatinny Arsenal, U.S. Army Research and Development Command, Dover New Jersey and National Federation of Federal Employees, Local 1437, 7 FLRA 703 (1982). In this case, the proposal does not require the Agency to select the repromotion eligible employee who is on the best qualified list but only to provide that nonselected employee "persuasive reasons" for nonselection. In our view, therefore, this proposal merely establishes a procedure for management to follow in the exercise of its rights to hire and select. Finally, we do not find that the requirement to delay filling a position for up to a maximum of 14 days while the procedure set out in the proposal is implemented renders this proposal nonnegotiable. In this respect, it is by now well established that 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). See also National Treasury Employees Union and Department of the Treasury, 24 FLRA No. 54 (1986). C. Order The Agency must upon request, or as otherwise agreed to by the parties, bargain on Proposal 1. /2/ Issued, Washington, D.C., May 29, 1987. /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY Separate Opinion of Chairman Calhoun Concurring on Proposal 1 Proposal 1 requires the Agency to provide a repromotion eligible who is not selected for a position after appearing on a best qualified list "persuasive" reasons for nonselection and prohibits the Agency from filling the position until the affected employee has been given an opportunity -- 7 days -- to rebut the reasons orally and/or in writing. As I stated in my opinion 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), I believe that the right to select includes the right to select immediately if necessary for the efficient functioning of the Agency. See also my opinion in National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 26 FLRA No. 60 (1987). As the United States Court of Appeals for the D.C. Circuit stated in National Treasury Employees Union v. FLRA, 691 F.2d 553, 563 (D.C. Cir. 1982), "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(.)" In my view, Proposal 1 conflicts with the right to select by preventing the Agency from exercising that right until the rebuttal phase of the process is complete. Despite the interference with the right to select, I would find Proposal 1 to be negotiable. The proposal applies to employees who have been downgraded through no personal cause and by its terms ameliorates the adverse effects of the downgrading. It applies only after one of these employees has been rated as best qualified under the Agency's competitive procedures. It does not require the Agency to select the employee; it provides only a further opportunity for consideration by enabling the employee to rebut the Agency's reasons for nonselection before the selection is made final. Under the criteria set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), I find that the proposal's benefits to affected employees outweighs the interference with the Agency's right. Therefore, I would find the proposal to be a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, I concur in the majority's decision that the proposal is negotiable. Issued, Washington, D.C., May 29, 1987. /s/ Jerry L. Calhoun, Chairman --------------- FOOTNOTES$ --------------- (1) In finding this proposal to be negotiable we make no judgments as to its merits. (2) In finding this proposal to be negotiable we make no judgments as to its merits.