34:0704(121)NG - - SEIU Local 100 and HHS, Gillis W. Long Hansen's Disease Center, Carville, LA - - 1990 FLRAdec NG - - v34 p704
[ v34 p704 ]
The decision of the Authority follows:
34 FLRA No. 121
FEDERAL LABOR RELATIONS AUTHORITY
SERVICE EMPLOYEES INTERNATIONAL UNION
DEPARTMENT OF HEALTH AND HUMAN SERVICES
GILLIS W. LONG HANSEN'S DISEASE CENTER
DECISION AND ORDER ON NEGOTIABILITY ISSUE
February 1, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority based upon a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of a proposal submitted by the Service Employees International Union, AFL-CIO, Local 100 (the Union) to the Department of Health and Human Services, Gillis W. Long Hansen's Disease Center, Carville, Louisiana (the Agency) during negotiations for a new collective bargaining agreement. The proposal concerns the presence of a union observer on merit promotion panels. We find that the proposal is outside the duty to bargain because it interferes with management's right to make selections for appointments under section 7106(a)(2)(C) and its right to assign work under section 7106(a)(2)(B).
II. The Proposal
The Union will be notified of all [merit promotion] panels and given the opportunity to have an observer present. The employer will select the Union observer from a panel of not less than five (5) names provided by the Union. The role of the Union observer shall be solely to monitor the process to insure compliance with the Agreement. The observer shall not be allowed to vote or to comment on the selection during the panel, and shall have no role in the decision making or deliberative process.
III. Positions of the Parties
The Agency contends that, by requiring management to give the Union an opportunity to have its observer present at every merit promotion panel, the proposal interferes with the right to make selections for appointments under section 7106(a)(2)(C) of the Statute. The Agency also contends that requiring management to choose the Union's observer from among those persons selected by the Union interferes with the right to assign work under section 7106(a)(2)(B).
The Union contends that the proposal does not interfere with management's right to make selections because "[t]he observer does not participate in the hiring and selection process, but simply monitors that process for compliance with the negotiated agreement." Petition for Review at 2. The Union also contends that the proposal does not interfere with management's right to assign work. The Union argues that: (1) the proposal does not allow the Union to select the observer but only to provide a list of employees; (2) the observer would have no role in the deliberative process of the merit promotion panel; and (3) the observer is necessary to protect employees against prohibited personnel practices such as the use of nonmerit factors in ranking.
The Agency's merit promotion panels rate and refer candidates to the selecting official. Petition for Review at 1. The proposal requires the Agency to: (1) offer the Union the opportunity to have an observer on all merit promotion panels; and (2) select the observer from a list of employees provided by the Union.
A. The Right to Make Selections for Appointments
The rights reserved to management under section 7106 include more than the right to decide to take final actions. Management rights encompass actions which are integral to the exercise of the rights, such as discussion and deliberation on the various factors on which a determination will be made. See American Federation of Government Employees, Local 2094 v. FLRA, 833 F.2d 1037, 1042-43 (D.C. Cir. 1987), affirming American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710, 712-15 (1986) (Proposals 2 and 3). Requiring union presence, whether active or passive, at these discussions and deliberations interferes with an agency's right to engage freely in internal discussions and deliberation prior to making decisions to take actions which are within the purview of section 7106(a). Id.
Promotion and rating panels are permanent or ad hoc committees established to evaluate, compare, and rank employees and, as such, constitute a part of the deliberative process by which management determines which employees will be selected for promotion under section 7106(a)(2)(C). American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 410 (1987) (citing American Federation of Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640, 643-45 (1985)). Union participation in the deliberative process leading to management's exercising its right to make selections for appointments, even in a purely passive role as an observer, interferes with that management right. Id. at 411 (citing American Federation of Government Employees, AFL-CIO, Local 2298 and Department of the Navy, Navy Exchange, Charleston, South Carolina, 22 FLRA 385, 386 (1986), affirmed mem. sub nom. American Federation of Government Employees, Local 2298 v. FLRA, No. 86-1497 (D.C. Cir. Dec. 15, 1987)).
In Navy Exchange, Charleston, 22 FLRA at 385, the proposal provided for a union observer to be "present to review the