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American Federation of Government Employees, National Va Council 53 (Union) and United States Department of Veterans Affairs, Vista Clinic, Vista, California (Agency)

[ v58 p8 ]

58 FLRA No. 4







August 12, 2002


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. The Agency filed a statement of position, and the Union filed a response. For the reasons that follow, we find that the Union's proposal is outside the duty to bargain, and we dismiss the petition for review.

II.     Proposal

When performance-based-interviewing is used for Title 5 bargaining unit positions, the local Union will be given the opportunity for an observer throughout the interviewing process.[ [n2] ]

III.     Meaning of the Proposal

      At the post-petition conference, the parties agreed that the proposal would allow the Union to have an observer present at PBIs conducted to fill unit positions, even over a candidate's objection. The parties also agreed that the proposal would not require the Agency to either fill a position or use PBIs once it decides to fill [ v58 p9 ] a position, and that the proposal would apply only after candidates have been properly rated and ranked.

IV.     Preliminary Matters

A.     The Union's Request For a Hearing Is Denied

      In its petition for review, the Union requested a hearing. Because we find the record sufficient to assess the negotiability of the Union's proposal, we deny the Union's request. See, e.g., Fed. Prof'l Nurses Assoc., Local 2707, 43 FLRA 385, 385 n.1 (1991).

B.     A Disputed Agency Argument Is Properly Before the Authority

      The Union asserts that one of the Agency's arguments is untimely because the Agency did not raise it at the post-petition conference. The Authority's Regulations provide that, at a post-petition conference, parties "must be prepared to discuss, clarify and resolve matters." 5 C.F.R. § 2424.23(b)(3). However, the Regulations do not require an agency to raise specific claims at the conference. Rather, § 2424.24 of the Regulations requires an agency to set forth its position "in full" in its statement of position. The Agency raised the disputed argument in its statement of position. Therefore, the disputed Agency argument is properly before the Authority.

V.     Positions of the Parties

A.     Agency's Statement of Position

      The Agency contends that the proposal violates its right to make selections under § 7106(a)(2)(C) of the Statute. In this regard, the Agency asserts that, during PBIs, it is "engaging in dialogue and deliberations on the relevant factors upon which decisions concerning management's right to select" are made. Statement of Position at 3. The Agency claims that the Union's presence at PBIs, without a candidate's permission, hinders its ability to engage freely in discussions and deliberations.

      The Agency further claims that the proposal is not a negotiable procedure or an appropriate arrangement. As to the former, the Agency argues that the proposal concerns only management's substantive decision-making process. As to the latter, the Agency argues that unit employees are not adversely affected by PBIs because candidates have sufficient notice of, and information about, PBIs, and because the Union may receive an advance copy of PBI questions and consult with the candidates after the interview to ensure that appropriate questions were asked.

      Alternatively, the Agency contends that, even though Article 44 of the parties' agreement permits negotiations over matters covered by the agreement, it is not obligated to bargain over the proposal because it conflicts with Article 22 of the agreement. [n3] 

B.     Union's Response

      The Union argues that the proposal does not violate management's right to select. In this regard, the Union argues that a PBI occurs only after candidates have been rated and ranked by the Agency and is merely "a method for obtaining information for later use in management's deliberations." Response at 7. The Union further argues that the Agency's agreement during negotiations that a Union observer could be present during PBIs at a candidate's request contradicts its argument that such presence violates management's right to select.

      Alternatively, the Union claims that the proposal is negotiable as a procedure or as an appropriate arrangement under § 7106(b) of the Statute. In claiming that the proposal is a negotiable procedure, the Union asserts that the proposal is consistent with § 7114(a)(2) of the Statute, and, under Assoc. of Civ. Tech., Volunteer Chapter 103, 55 FLRA 562 (1999) (ACT), the proposal concerns the "mechanics" of the selection process. Response at 9. In asserting that the proposal is an appropriate arrangement, the Union claims that unit employees could be adversely affected by inappropriate and inconsistent PBI questions and that the proposal would ameliorate those adverse effects. The Union also asserts that PBIs are more complex than typical interviews and that the proposal is intended to "lessen the stress" on employees. Id. at 16.

      Finally, the Union asserts that the proposal does not conflict with Article 22 of the parties' agreement.

VI.     Analysis and Conclusions

A.     The Proposal Affects Management's Right to Make Selections For Appointments

      The Authority has long held that proposals providing for union participation in "discussions and deliberations leading to decisions" involving the exercise of management's rights affect those rights. AFGE, Local 1923, 44 FLRA 1405, 1442 (1992) (AFGE) (citing NFFE, Local 1437, 35 FLRA 1052 (1990) (NFFE)). In particular, where management establishes "a decision-making process through which to exercise its rights . . . a proposal requiring that union representatives participate in that process" affects those rights. Id. Applying these principles, the Authority has held that proposals [ v58 p10 ] permitting union representatives to observe rating and ranking panels affect the right to make selections for appointments under § 7106(a)(2)(C). See, e.g., NFFE, 35 FLRA at 1061-62.

      It is clear that, when conducting PBIs, the Agency is involved in the decision-making process for making selections for appointments. In particular, when conducting PBIs, management gathers information about the candidates and, based on the information gathered, makes evaluations concerning them. These information-gathering and evaluative aspects of PBIs demonstrate that PBIs are an integral part of the "discussions and deliberations" that lead to selection decisions. [n4]  AFGE, 44 FLRA at 1442. Consequently, the Union's proposal affects management's right to make selections for appointments.

B.     The Proposal Is Not a Negotiable Procedure

      The Authority has held that proposals that require union participation in discussions and deliberations pertaining to the exercise of management's rights are not procedures under §7106(b)(2) of the Statute, but concern management's substantive decision-making process. See NTEU, 28 FLRA 647, 649 (1987). The proposal requires Union participation in management's discussions and deliberations pertaining to selections. Therefore, under our precedent, the proposal is not a negotiable procedure.

      The Union's claim that the proposal is a negotiable procedure because it is consistent with § 7114(a)(2) of the Statute is without merit. Nothing in § 7114 mandates the Union's presence during PBIs and, although unions may negotiate rights exceeding those set out in § 7114(a)(2), see AFGE, AFL-CIO, Local 3354, 34 FLRA 919, 924 (1990), proposals doing so must be consistent with law, including management rights. See Patent Office Prof'l Assoc., 48 FLRA 129, 136 (1993). Similarly, the Union's reliance on ACT, 55 FLRA 562, for its assertion that the proposal concerns the "mechanics" of selection and, therefore, is a negotiable procedure is misplaced. The proposal in ACT required the Agency to make selections in a particular way "only if the Agency decides to do so." Id. at 565 (emphasis added). The proposal here requires the Agency to permit Union observers even in situations where both the Agency and a candidate would prefer not to do so.

C.     The Proposal Is Not an Appropriate Arrangement

      In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under this analysis, the Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. See id. at 31; see also United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. The claimed arrangement must be sufficiently tailored to compensate employees suffering adverse effects attributable to the exercise of management's rights. See, e.g., NAGE, Local R1-100, 39 FLRA 762, 766 (1991). If the proposal is an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). See KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. See id.

      The Union claims that the proposal would ameliorate adverse effects such as stress and improper consideration for selection as a result of inappropriate and inconsistent interview questions. With respect to the claimed stress, even assuming that PBIs are more stressful than other types of interviews, the Union has not demonstrated that a Union observer would ameliorate this adverse effect. Indeed, it is reasonable to conclude that, for candidates who do not want a Union observer present, such presence would increase stress. Moreover, as agreed to by the parties, any candidate who so desires may have a Union observer present during the PBI. The Union also has not demonstrated that the proposal would ameliorate the adverse effects from inappropriate and/or inconsistent questions. In this regard, there is no dispute that the Union will be provided an advance copy of PBI questions and will be allowed to consult with candidates after PBIs to ensure that appropriate questions were asked.

      In these circumstances, we conclude that the Union has failed to demonstrate that the proposal ameliorates adverse effects flowing from the exercise of a management right. Accordingly, the proposal is not an appropriate arrangement under § 7106(b)(3) of the Statute and, as a result, is outside the Agency's duty to bargain. As such, it is unnecessary to address the Agency's "covered by" argument. [n5] 

VII.     Order

      The petition for review is dismissed.

File 1: Authority's Decision in 58 FLRA No. 4
File 2: Opinion of Member Pope

Footnote # 1 for 58 FLRA No. 4 - Authority's Decision

   Member Pope's dissenting opinion is set forth at the end of this decision.

Footnote # 2 for 58 FLRA No. 4 - Authority's Decision

   A performance based interview (PBI) is designed to obtain behavioral examples of knowledge, skills, and abilities of candidates. See Statement of Position, Attachment 1.

Footnote # 3 for 58 FLRA No. 4 - Authority's Decision

   Article 44 provides that mid-term agreements "may include substantive bargaining on all subjects covered in the Master Agreement, so long as they do not conflict [with], interfere with, or impair implementation of the Master Agreement." Statement of Position, Attachment 3. Article 22 provides that interviews "must be job-related, reasonably consistent, and fair . . . [and that] [i]f more than one management official is conducting the interview, a union representative may be present upon the employee's request." Statement of Position, Attachment 2.

Footnote # 4 for 58 FLRA No. 4 - Authority's Decision

   We note that while the Authority has held that union attendance at public meetings where the exercise of management's rights is discussed does not affect those rights, NFFE, Local 1263, 14 FLRA 761, 762 (1984), that does not lead to a conclusion that meetings involving any non-managers are necessarily open to union participation.

Footnote # 5 for 58 FLRA No. 4 - Authority's Decision

   Chairman Cabaniss would find that the Agency's "covered by" defense also precludes any duty to bargain over the proposal.