American Federation of Government Employees, National Veterans Affairs Council 53 v. Federal Labor Relations Authority, No. 02-1311 (D.C. Cir. December 23, 2003)

The D.C. Circuit affirmed FLRA's holding, in 58 FLRA No. 4 (Member Pope dissenting), that a proposal permitting a union observer to be present at any performance-based interview (PBI) conducted to fill a bargaining unit position is nonnegotiable because it affects management's right to make selections for appointments and is neither a "procedure" nor an "appropriate arrangement."

In 58 FLRA No. 4, the Authority (Member Pope dissenting) found nonnegotiable a proposal allowing the union to be present at "performance-based-interviews" that are used in filling bargaining unit positions. The majority regarded such interviews as part of management's internal deliberations and consequently found that the proposal interfered with the right to select. It rejected the union's claims that the proposal was a (b)(2) "procedure" or a (b)(3) "appropriate arrangement." Not only did the union fail to demonstrate adverse effects, FLRA said that "it is reasonable to conclude that, for candidates who do not want a Union observer present, such presence would increase stress."

In Member Pope's view, the proposal didn't affect management's right to select. In her view, internal deliberations had to be among management officials, not between a management official and a candidate for a position. She noted, moreover, that the existing agreement permitted union presence at such interviews when their presence is requested by a candidate.

The union sought review by the D.C. Circuit. However, the court found that "the FLRA reasonably declared the Union's proposal to be nonnegotiable under § 7106." In apparent response to Member Pope's dissent, it said the following in footnote 2 of its decision:

We recognize that the PBI itself would not ordinarily include discussions or deliberations by decisionmakers but is instead, as the Authority indicated, designed to elicit information on which such discussions and deliberations, and the selection decision itself, are based. . . . The Authority cites Nat'l Fed'n of Fed. Employees, Local 1437 [35 FLRA 1052, 1061-2] only to support the underlying principle that under its precedent "discussions and deliberations leading to decisions" are protected under section 5 U.S.C. § 7106(a)(2)(C) and not as direct authority for the ultimate determination that PBIs are protected because they form a part of the same deliberative and decisional process. We are unaware of any precedent that extends section 7106(a)(2)(C)'s protection of the process only to discussions and deliberations. See Nat'l Fed'n of Fed. Employees, Local 1437, 35 F.L.R.A. at 1061-62 ("The Authority consistently has held that the exercise of management's rights also encompasses actions integral to the exercise of the right, including discussion and deliberation on the relevant factors upon which the decision to act is made.") [Emphasis added by the court.]

In agreeing with FLRA's determination that the proposal did not constitute an appropriate arrangement, it said the following:

There is no dispute that any employee is free to have a Union representative present at a PBI if he chooses. Thus, the only effect of the Agency's assertion is to prevent the Union from demanding that its observer be allowed to be present without regard to the employee's wishes. We do not see how this effect can be characterized as adverse to employees whose choice could otherwise be overriden by the proposal.