---

28 FLRA NO. 82


NATIONAL TREASURY EMPLOYEES
UNION

                   Union

       and

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, REGION V,
CHICAGO, ILLINOIS

                   Agency

Case No. 0-NG-1340

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute). It raises issues concerning the negotiability of a single proposal submitted by the Union in response to notification by the Agency that it would no longer enforce a provision of the parties' collective bargaining agreement. The particular provision allowed for Union observers at merit promotion rating and ranking panels. The Agency asserted that the provision was no longer enforceable in view of the Authority's decision in American Federation of Government Employees, AFL - CIO, Local 2298 and Department of the Navy, Navy Exchange, Charleston, South Carolina, 22 FLRA No. 37 (1986), that the presence of even a passive union observer would interfere with management's right to select under section 7106(a)(2)(C).

II. The Proposal

When a promotion panel is established for the purposes of ranking eligible candidates in accordance with subsection I of this section, the Employer will appoint at least three (3) members to evaluate the potential of the candidate for the vacant position. Whenever a bargaining unit [ v28 p] employee is appointed as a ranking panel member, the Union will be notified when such a panel is convened in order to designate a representative to observe the panel's operation. Such notification shall be in writing to the Chapter President and be at least five (5) days in advance.

III. Positions of the Parties

In its petition, the Union notes that the proposal would require a union observer on rating and ranking panels only when the Agency appoints a bargaining unit member to a rating and ranking panel. The Union argues that by appointing a bargaining unit member to the panel, the Agency would have elected to include members of the Union's bargaining unit in internal management discussions and deliberations involved in the exercise of a management right. Under the proposal, the role of the Union observer would be to ensure that the interests of unit employees who are members of ranking panels are maintained and to police the administration of the contract.

The Agency asserts that the proposal conflicts with its right to select under section 7106(a)(2)(C) of the Statute. In support, it contends that the presence of a Union representative on rating and ranking panels would hamper the operations of the panels.

The Union's response to the Agency's statement of position was untimely and, therefore, we have not considered it. The Union acknowledges receiving the Agency's statement on December 1, 1986. The Union's response contains a statement of service dated December 22, 1986, and the response was not received by the Authority until December 29, 1986. Under section 2424.7 of the Authority's regulations the response should have been filed with the Authority within 15 days after the date the Union received the Agency's statement of position.

IV. Analysis and Conclusions

The Authority has consistently held that the management rights enumerated in section 7106 of the Statute encompass not only the right to act but also the right to discuss and deliberate concerning the relevant factors upon which decisions as to the exercise of those rights will be [ v28 p 2] made. National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 579-81 (1981), enforced sub nom. National Federation of Federal Employees v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982); National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982). Moreover, the Authority has held that proposals which require union participation in such discussions and deliberations pertaining to the exercise of management's right are not procedures, but concern management's substantive decision-making process. These types of proposals directly interfere with management's statutory right to make the decisions involved. See, for example, Homestead Air Force Base (requirements for union observers at management conferences regarding decisions to contract out work held nonnegotiable); VA Medical Center, East Orange (union participation on committees which decide, among other things, whether to remove probationary employees held nonnegotiable); National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565, 566-68 (1983) (union participation on panel to determine selective factors held nonnegotiable).

The Authority has further held that regardless of whether the role of a union observer is active or passive, the observer's presence would interfere with the agency's right to freely engage in internal discussion and deliberation prior to making decisions to take actions under section 7106 and would improperly interject an outside party into management's internal decision-making process. American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 3); American Federation of Government Employees, AFL - CIO, Local 2302 and U.S. Army Armor Center, Ft. Knox, Kentucky, 15 FLRA 17 (1984) (Proposal 2).

As described in the Federal Personnel Manual Supplement 335-1, Appendix B, section B-13A, a promotion rating panel is a permanent or ad hoc committee established by management to evaluate, compare and rank employees for promotion. Thus, a promotion panel is a body created by management to carry out part of its deliberative process in the exercise of that management right. Its functions are "wholly management related." Compare National Federation of Federal Employees, Local 1263 and Defense Language Institute, [ v28 p 3] Presidio of Monterey, California, 14 FLRA 761 (1984) (Provision 1), rev'd as to other matters sub nom. Defense Language Institute v. Federal Labor Relations Authority, 767 F.2d 1398 (9th Cir. 1985) (when meetings are not "wholly management related"). Its functions concern discussion or action on aspects of the evaluation and comparison of the qualifications of applicants for selection and are an integral part of management's exercise of its right under section 7106(a)(2)(C) to make selections. See American Federation of Government Employees, AFL - CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640 (1985) (Provision 3). The fact that the Agency assigns a bargaining unit employee the work of participating on a promotion panel does not change the nature of the panel as a body performing a function which is an integral part of the exercise of a management right.

The Union argues, however, that by including a bargaining unit employee on a promotion panel, the agency has opened that deliberative process to an "outside party" and has lost the protection of section 7106 to exclude the Union from it. We do not find that argument persuasive. under section 7106, management retains its discretion to assign to unit employees whatever work is necessary to accomplish the mission of the Agency. Accordingly, a proposal which prohibited the agency from assigning bargaining unit employees the task of rating, evaluating, or grading the performance of other unit employees was held nonnegotiable because it directly interfered with the agency's right to assign work. American Federation of Government Employees, AFL - CIO, Local 3385 and Federal Home Loan Bank Board District 7, Chicago, Illinois, 7 FLRA 398 (1981).

As to the proposal in this case, we find that an employee performing a work assignment which comprises a part of management's deliberative process is not in any realistic sense an "outside party." Rather, the employee must follow the prescriptions of management concerning the substance and confidentiality of the work. Such work assignments do not diminish the Agency's right to limit access to the internal deliberative process involved in the exercise of its management rights and do not give the Union the right to negotiate to have an observer present.

Based on these reasons we find that the proposal interferes with the Agency's right to make selections under section 7106(a)(2)(C) and is not within the duty to bargain. [ v28 p 4]

V. Order

The Union's petition for review is dismissed.

Issued, Washington, D.C., August 21, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p 5]

---