American Federation of Government Employees, National VA Council 53 and U. S. Department of Veterans Affairs, Vista Clinic, Vista, CA, 0-NG-2624, August 12, 2002, 58 FLRA No. 4.

The Authority (Member Pope dissenting) found nonnegotiable a proposal allowing the union to have an observer present at "performance based interviews" (PBIs)--i.e., interviews designed to obtain behavioral examples of the knowledge, skills, and abilities of properly rated and ranked candidates for bargaining unit vacancies--because such interviews are part of management’s internal deliberations integrally related to its right to select. Member Pope disagreed because, among other things, at least one participant in the discussions--the candidate being interviewed--is not a management official or a management designee.

Management's arguments. In contending that the proposal is nonnegotiable, the agency argued that it violated its right to make selections under § 7106(a)(2)(C). It claimed that during the interviews it engages in dialogue and deliberations on the relevant factors upon which selection decisions are made and that the union’s presence, without a candidate’s permission, hinders its ability to engage freely in discussions and deliberations. Nor was the proposal a § 7106(b)(2) procedure or a § 7106(b)(3) appropriate arrangement. Regarding the latter, it argued that unit employees aren't adversely affected by PBIs because candidates have sufficient notice of, and information about, PBIs and because the union may receive an advance copy of PBI questions and consult with candidates after the interviews to ensure that appropriate questions were asked. Finally, the proposal conflicted with an agreement provision that provided, among other things, that a union representative could be present upon employee request if the interviews were conducted by more than one union official. (The majority found it unnecessary to pass on the latter contention.)

Union’s arguments. The union responded by arguing, among other things, that the aforementioned contract provision contradicted management's argument that union presence violates management's right to select. In arguing that the proposal was a negotiable procedure, it said the proposal was consistent with § 7114(a)(2) (which deals with union presence at formal discussions and, upon employee request, Weingarten interviews). Finally, the proposal was an "appropriate arrangement" because union presence would ameliorate employee stress and protect against inappropriate and inconsistent PBI questions.

Majority's decision. The Authority found that the proposal affects management's right to make selections. It noted that it has held that provisions providing for union participation in discussions and deliberations leading to decisions involving the exercise of management rights affect those rights. In 35 FLRA at 1061-62 it applied this principle and held that proposals permitting union representatives to observe rating and ranking panels affect the § 7106(a)(2)(C) right to make selections. It noted that management, when conducting PBIs, gathers information about candidates and uses that information to evaluate them. "These information-gathering and evaluative aspects of PBIs demonstrate that PBIs are an integral part of the 'discussions and deliberations' that lead to selection decisions."

In rejecting the union's claim that the proposal was a § 7106(b)(2) procedure it said, among other things, that "[n]othing in § 7114 mandates the Union's presence during PBIs and, although unions may negotiate rights exceeding those set out in § 7114(a)(2) . . . proposals doing so must be consistent with law, including management rights."

Nor was the proposal an appropriate arrangement. The union failed to demonstrate how union presence would ameliorate any stress that might be part of PBIs. "Indeed, it is reasonable to conclude that, for candidates who do not want a Union observer present, such presence would increase stress." Besides, candidates who wanted a union observer could have one present under the terms of the existing agreement. As for protecting against inappropriate or inconsistent questions, FLRA noted that the union would be provided advance copies of PBI questions and allowed to "consult with candidates after PBIs to ensure that appropriate questions were asked."

Dissenting opinion. Although Member Pope agreed that permitting union participation in internal management discussions and deliberations would affect the exercise of the management right that is being discussed, "it is not logical, in my view, to extend this principle to discussions that are not among managers or management designees." In her view, the PBIs aren't "wholly management-related meetings; by nature, PBIs involve at least one non-manager (the candidate)." She went on to note that "the proposal here is quite unlike proposals relied on by the majority, permitting union representation on rating and ranking panels." Moreover, the agreement, which permits union presence at PBIs when requested by a candidate, renders absurd any 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." Given that she would find that the proposal doesn’t affect the right to select, there was no need for her to address the union’s claim that the proposal is an appropriate arrangement.

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