[ v26 p497 ]
26:0497(60)NG
The decision of the Authority follows:
26 FLRA No. 60
NATIONAL TREASURY
EMPLOYEES UNION
Union
and
DEPARTMENT OF THE TREASURY,
BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS
Agency
Case No. 0-NG-1158
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority on a petition for review of
negotiability issues filed under section 7105(a)(2)(E) of the Federal
Service Labor-Management Relations Statute and part 2424 of the
Authority's Rules and Regulations. It raises issues concerning the
negotiability of two proposals.
II. Proposal 1
An employee, Chapter President, Chief Steward or Steward will
have the right to use a government telephone concerning any matter
for which remedial relief may be sought pursuant to the terms of
this agreement. When FTS or government leased lines are not
available, access shall be for local calls only.
A. Positions of the Parties
The Agency contends that this proposal is nonnegotiable because use
by the Union of the Agency's government telephones is contrary to law
and Government-wide regulations, and is not otherwise expressly
permitted by the Statute. Specifically, the Agency contends that 31
U.S.C. Section 1348(b), 41 CFR Section 101-37.105-4 (now located at 41
CFR Section 201-38.007) and 5 CFR Section 735.205 restrict use of a
Government telephone to "official business," "official Government
business," or "officially approved activities." The Agency maintains
that the labor-management relations activities of the proposal are
restricted by these provisions from being conducted with use of a
Government telephone. The Agency claims that a labor organization and
labor-management relations activities are no different than any other
private organization which is prohibited from conducting its activities
with use of Government telephones without reimbursement. For these
reasons, the Agency further argues that the proposal is contrary to 31
U.S.C. Section 1301, which provides that appropriations shall be applied
only for appropriate purposes. The Union disputes these contentions.
B. Analysis and Conclusions
The proposal in this case in materially identical in its effect to
the ones we considered in National Federation of Federal Employees and
General Services Administration, 24 FLRA No. 45 (1986). In General
Services Administration, we specifically rejected contentions, virtually
identical to the Agency's contentions in this case, that the use of a
Government telephone for the purpose of conducting labor-management
relations activities is prohibited by law and Government-wide
regulations restricting use of a Government telephone to official
business. Consequently, for the reasons set forth in General Services
Administration, we find in this case that the proposal is not
inconsistent with law or Government-wide regulations, as alleged,
specifically 31 U.S.C. Sections 1301, 1348(b), 41 CFR Section
201-38.007, and 5 CFR Section 735.205. Moreover, as in General Services
Administration, the Agency in this case fails to cite any statutory or
regulatory provision which would prohibit it from exercising through
negotiations its discretion to determine that use of the Government
telephone to conduct the enumerated labor-management relations
activities is sufficiently within the interest of the United States so
as to constitute official business. Likewise, the proposal does not
provide for telephone use which does not comport with cited statutory
and regulatory requirements and restrictions. Accordingly, we find that
Proposal 1 is within the duty to bargain under the Statute.
III. Proposal 2
The FLRA Members disagree over the negotiability of this proposal.
The decision and order on Proposal 2, and Chairman Calhoun's dissent
immediately follow this decision.
IV. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain on Proposal 1. /*/
Issued, Washington, D.C., March 31, 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 2
Proposal 2
The parties agree that agency employees should receive first
consideration for all actions set forth in Section 2A below,
except in an emergency or in those instances where there is no
employee within the region at a grade level lower than the level
specified on the vacancy announcement.
First consideration requires that a vacancy be available to
agency employees and that they be ranked and considered for
selection before any non-ATF applicants are solicited, ranked or
considered for selection.
A. Positions of the Parties
The Agency contends that the proposal is nonnegotiable because it is
contrary to merit system principles set forth in 5 U.S.C. Section
2301(b)(1), 5 CFR Section 335.103, and Federal Personnel Manual chapter
335, subchapter 1-4, Requirement 1. The Agency argues that the proposal
grants agency employees preferential treatment by being considered first
and that such a preference conflicts with the cited merit system
principles requiring that the selection actions encompassed by the
proposal be based solely on job-related criteria. The Agency also
argues that by requiring the Agency to grant such a preference in
violation of merit system principles, the proposal would require the
Agency to engage in the prohibited personnel practice set forth in 5
U.S.C. Section 2302(b)(6). The Agency similarly contends that the
preference required by proposal conflicts with equal employment
opportunity principles. Specifically, the Agency argues that the
proposal conflicts with 5 CFR Section 300.103(c), prohibiting employment
practices that discriminate on the basis of any non-merit factor, and 29
CFR part 1613, requiring that equal opportunity in employment be
provided all persons. /1/ Finally, the Agency contends that this
proposal directly interferes with its right under section 7106(a)(2)(C)
of the Statute to choose from among candidates from any appropriate
source in filling positions. Specifically, the Agency argues that the
proposal bars consideration of other candidates until all agency
employees are considered and that this protracted process could result
in a serious delay in filling a vacant position.
The Union generally disputes the Agency's contentions. Specifically,
the Union asserts that the proposal "merely requires the agency to
consider agency employees before others." Union Reply Brief at 3
(emphasis by the Union). Therefore, the Union contends that the
proposal is not contrary to merit system principles because it does not
grant a preference or advantage and would not define the scope or manner
of competition. The Union similarly contends that the proposal does not
conflict with section 7106(a)(2)(C) because it merely requires that the
Agency consider its employees first before expanding the area of
consideration. The proposal does not interfere with management's right
to select from any appropriate source.
B. Analysis and Conclusions
In National Treasury Employees Union and Department of the Treasury,
24 FLRA No. 54 (1986) (Chairman Calhoun dissenting), petition for review
filed sub nom. Department of the Treasury v. FLRA, Case No. 87-1084
(D.C. Cir. Feb. 13, 1987), we considered a provision and contentions
virtually identical to the proposal and contentions in this case. We
rejected the contentions that by granting advance consideration to
bargaining-unit employees for certain vacancies, the provision
conflicted with merit system principles and required the agency to
commit a prohibited personnel practice. We further concluded that the
provision did not impose any substantive limitation on management's
right to select under section 7106(a)(2)(C). We found instead that the
provision constituted a procedure under section 7106(b)(2) and was
negotiable even though it would delay in certain circumstances
management's ability to select for promotion from other appropriate
sources. Consequently, for these reasons, which are fully discussed in
Department of the Treasury, we conclude that the proposal does not
establish any preference in violation of merit system or equal
employment opportunity principles and constitutes a negotiable procedure
under section 7106(b)(2). Accordingly, we find that Proposal 2 is
within the duty to bargain under the Statute.
C. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain on Proposal 2. /2/
Issued, Washington, D.C., March 31, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun on Proposal 2
The first paragraph of Proposal 2 provides, with exceptions not
relevant here, that Agency employees should receive first consideration
for Agency positions. The second paragraph of the proposal defines
"first consideration" to mean that non-Agency employees may not be
"solicited, ranked or considered" for selection until that process has
been completed for Agency applicants.
In my opinion, the first paragraph, standing alone, would be a
negotiable procedure under section 7106(b)(2) of the Statute. It would
not interfere with the Agency's exercise of its right to make selections
for positions; it would require only that applicants for those
positions be considered in a certain order: Agency employees first. By
requiring only consideration of internal candidates before outsiders,
the first paragraph is distinguishable from Proposal 5 in Colorado
Nurses Association and Veterans Administration Medical Center, Ft.
Lyons, Colorado, 25 FLRA No. 66 (1987) which would have required the
agency to select an internal candidate and was found to be nonnegotiable
for that reason. Requiring that Agency applicants be considered before
outsiders is consistent with good management, in my view, because it
promotes the retention of qualified employees by enhancing their
opportunities for promotion.
As "first consideration" is defined in the second paragraph, however,
I conclude that the proposal is nonnegotiable. The majority relies on
its decision 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), in finding the proposal to be negotiable. The provision in that
case required the Agency to wait for at least 10 calendar days before
considering outside applicants if a bargaining-unit employee was not
selected for a position. In my dissenting opinion in that case, I found
that the provision directly interfered with the agency's right to make
selections because, in my view, the right to make a selection includes
the right to select immediately if necessary for the efficient
functioning of the agency.
Like the provision in Department of the Treasury, Proposal 2 directly
interferes with the Agency's right to select. In fact, since the Agency
here would be precluded from even initiating outside recruitment until
all internal candidates had been considered, the proposal in all
likelihood has a greater impact on management's right than the provision
in Department of the Treasury. Therefore, I do not join the majority
decision.
Issued, Washington, D.C. March 31, 1987.
/s/ Jerry L. Calhoun, Chairman
--------------- FOOTNOTES$ ---------------
(*) In deciding that Proposal 1 is within the Agency's duty to
bargain, we make no judgment as to its merits.
(1) Because these regulations are generally applicable throughout the
Federal Government, we find that they are Government-wide regulations
within the meaning of section 7117 of the Statute. See National
Treasury Employees Union, Chapter 6 and Internal Revenue Service, New
Orleans District, 3 FLRA 747 (1980).
(2) In deciding that Proposal 2 is within the Agency's duty to
bargain, we make no judgment as to its merits.