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File 2: Opinion of Member Pope

[ v61 p225 ]

Member Carol Waller Pope, concurring in part and dissenting in part:

      I agree, for the reasons stated by the majority, that Proposals 4, 6, 7, and 9, are within the duty to bargain, and that Proposals 5, 8, and 10 are outside the duty to bargain. I also agree that Proposal 1 is outside the duty to bargain based on its effect on the Agency's right to contract out. [n1]  I disagree with the majority=s determination that Proposals 2 and 3 are outside the duty to bargain.

      Proposal 2 states that Aunit employees shall receive first consideration@ for unit vacancies. As explained by the Union and interpreted by the majority, the proposal permits simultaneous solicitation of unit and nonunit applications, but requires that the Agency "perform any actions in the selection process with regard to bargaining unit candidates before taking those same actions for nonunit candidates." Majority Opinion at 6. As the Union explained, "if management reviews a candidate's resume and SF-171, it would do so for all bargaining unit employee candidates before reviewing those documents from non-bargaining unit candidates." Post-petition Conference Report at 2.

      Interpreted in this manner, it is clear that Proposal 2 does not affect management=s right to select. In this regard, the Authority consistently has held that Aa proposal [that] requires an agency to give first consideration to bargaining unit employees when filling vacant positions, but does not prevent management from timely considering other applicants or expanding the area of consideration once bargaining unit employees are considered@ does not affect the right to select under ' 7106(a)(2)(C). Ass=n of Civilian Technicians, Evergreen & Rainier Chapters, 57 FLRA 475, 478-81 (2001) (ACT) (Chairman Cabaniss dissenting in part) (citing ACT, Volunteer Chpt. 103, 55 FLRA 562, 565 (1999) (Chair Segal dissenting on other grounds); Laurel Bay Teachers Ass=n OEA/NEA, 49 FLRA 679, 687 (1994); AFGE, Local 1923, 44 FLRA 1405, 1493-94 (1992); NTEU, 43 FLRA 1279, 1287-88 (1992)).

      The majority's conclusion to the contrary is based on an unsupported construction of the proposal, contrary to the Union's explanation which the majority purportedly adopts. In particular, the majority states that the proposal requires that "priority consideration be given unit candidates before nonunit candidates are rated and ranked." Majority opinion at 7, 8. However, nothing in the wording of the proposal or the Union's explanation of it indicates that nonunit candidates may not be rated and ranked until all steps of the process are completed for unit candidates. As noted above, the proposal itself requires only that unit employees be given "first consideration." Moreover, the Union's example explaining the proposal -- that "if management reviews a candidate's resume and SF-171, it would do so for all bargaining unit employee candidates before reviewing those documents from non-bargaining unit candidates" -- indicates that unit employees' priority occurs at each step of the process, not that all steps must be delayed for nonunit candidates until all steps are completed for unit candidates. Post-petition Conference Report at 2.

      As the proposal permits nonunit candidates to be rated and ranked once this action has been completed for unit candidates, it permits nonunit employees to be considered immediately after consideration of unit candidates is complete. To the extent that the proposal results in any time lag between the consideration of unit and nonunit candidates, the length of the delay is within the agency=s control and the proposal does not place any Aundue pressure@ on the selecting official to select unit candidates. ACT, 57 FLRA at 481. Because the proposal would not preclude the Agency from processing the applications of nonunit employees until after unit employees are considered, the majority's reliance on authority indicating that such proposals affect the right to select is misplaced. See, e.g. NTEU, 43 FLRA at 1287; AFGE, Local 2429, 38 FLRA 1469, 1477 (1991)

      Based on the foregoing, Proposal 2 does not affect the Agency=s right to select. In addition, I would reject, as unsupported, the Agency=s claims that the proposal violates Government-wide regulations and results in prohibited personnel practices. Accordingly, Proposal 2 is within the duty to bargain.

      The majority extends to Proposal 3 its error in resolving Proposal 2. In this regard, Proposal 3 requires the selecting official to interview and consider available unit candidates before making a selection. The Union states that the proposal means that unit candidates Amust be interviewed and given first consideration@ before nonunit candidates. Petition for Review at 14. As this explanation is consistent with the plain wording of the proposal, I would adopt it. [n2]  Applying ACT, 57 FLRA at 478-81, and the precedent cited therein, Proposal 3 is negotiable for the same reasons as Proposal 2.

      For the foregoing reasons, I concur in part and dissent in part.

File 1: Authority's Decision in 61 FLRA No. 40
File 2: Opinion of Member Pope

Footnote # 1 for 61 FLRA No. 40 - Opinion of Member Pope

   In disagreement with the majority, I would not find that Proposal 1 affects the right to assign work. I note that the Agency does not claim that Proposal 1 affects this right, and the record does not show such effect. In this regard, proposals permitting a union to designate members of joint labor-management committees do not affect the right to assign work. See Int'l Org. of Masters, Mates & Pilots, Marine Div., Panama Canal Pilots Branch, 51 FLRA 333, 349 (1995) (citation omitted) (joint committee to conduct wage surveys). The Agency's statement that the fitness center is a "management function" sheds no light on how this precedent applies. Statement of Position at 3.

Footnote # 2 for 61 FLRA No. 40 - Opinion of Member Pope

   Consistent with the construction of Proposal 2 above, as well as the plain wording of Proposal 3 (which relates only to the interview process), the majority's construction of Proposal 3 as requiring that the Agency "engage in all of the steps in the selection process" for unit employees before evaluating the applications of nonunit employees is unfounded. Majority Opinion at 10.