File 2: Opinion of Member Pope
[ v58 p11 ]
Dissenting Opinion of Member Pope:
For the reasons that follow, I would find that the Union's proposal does not affect management's right to select under § 7106(a)(2)(C) of the Statute.
The Authority has never considered whether a proposal permitting a union representative to attend job interviews is negotiable. However, the Authority has held that proposals permitting union participation in "wholly management related" meetings where management rights are discussed affect those rights. NFFE, Local 1167, 6 FLRA 574, 580 (1981). The Authority has also 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)).
Applying these principles, I am unable to agree that permitting Union representatives to observe PBIs affects management's right to select. First, PBIs are not wholly management-related meetings; by nature, PBIs involve at least one non-manager (the candidate). Second, although the Agency asserts that during PBIs, it is engaging in dialogue and deliberations concerning its right to select, the Agency has not claimed that the dialogue is among managers or others designated by management. [n1] Indeed, any dialogue occurring during a PBI would necessarily occur in the presence of the candidate. As such, the proposal here is quite unlike proposals, relied on by the majority, permitting union representation on rating and ranking panels. Third, the Agency's agreement to permit Union presence at PBIs when requested by a candidate renders absurd its claim that such presence interferes with the selection process.
I would conclude that PBIs are sufficiently removed from actual deliberations and decision-making so that Union observation of them does not affect the right to select. [n2] As such, I do not address whether the proposal would be negotiable as a procedure or appropriate arrangement. I would also conclude that the proposal is not covered by the parties agreement. In resolving such a claim, the Authority will interpret and apply contractual provisions modifying the statutory covered by standard. See, e.g., Social Security Admin., 55 FLRA 374, 377 (1999). Here, Article 44 of the parties' agreement modifies the statutory standard such 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.
Contrary to the Agency's claim, the proposal does not conflict with Article 22. While the proposal would broaden the Union's right under Article 22, nothing in Article 22 provides that the interviews it encompasses are the only interviews that the Union may attend. Moreover, the Agency did not include any evidence of the bargaining history regarding Article 22 that would warrant such a reading of that provision, and did not request a hearing to resolve this matter of contract interpretation. Thus, there is no basis for the Authority to conclude that the Union's proposal conflicts with Article 22.
Based on the foregoing, I would issue a bargaining order in this case.
File 1: Authority's Decision in 58 FLRA No. 4
File 2: Opinion of Member Pope
Footnote # 1 for 58 FLRA No. 4 - Opinion of Member Pope