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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2003 Decided December 23, 2003
No. 02-1311
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
NATIONAL VETERANS AFFAIRS COUNCIL 53,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of a Decision and Order of the
Federal Labor Relations Authority
Joe Goldberg argued the cause for the petitioner. Mark D.
Roth and Charles A. Hobbie were on brief.
James F. Blandford, Attorney, Federal Labor Relations
Authority, argued the cause for the respondent. David M.
Smith, Solicitor, and William R. Tobey, Deputy Solicitor,
Federal Labor Relations Authority, were on brief.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: HENDERSON, TATEL and ROBERTS, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The American
Federation of Government Employees, National Veterans
Affairs Council 53 (Union) petitions for review of a decision of
the Federal Labor Relations Board (FLRA, Board) which
declared nonnegotiable the Union’s proposal to require that
the United States Department of Veterans Affairs, Vista
Clinic (Agency) permit a Union observer to be present at any
performance-based interview (PBI) conducted to fill a bar-
gaining unit position.1 The FLRA concluded that the propos-
al affects management’s right to ‘‘make selections for appoint-
ments’’ under 5 U.S.C. § 7106(a)(2)(C). Because the FLRA’s
decision is not ‘‘ ‘arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law,’ ’’ we deny the
petition for review. Ass’n of Civilian Technicians v. FLRA,
250 F.3d 778, 782 (D.C. Cir. 2001) (quoting 5 U.S.C.
§ 706(2)(A)) (citations omitted).
The Union’s proposal states:
When performance-based-interviewing is used for Title
5 bargaining unit positions, the local Union will be given
the opportunity for an observer throughout the inter-
viewing process.
58 F.L.R.A. at 8. The FLRA based its decision that the
proposal is not negotiable on three separate determinations.
First, the FLRA determined the proposal affects the Agen-
cy’s management rights under 5 U.S.C. § 7106(a)(2)(C), which
provides:
(a) Subject to subsection (b) of this section, nothing in
this chapter shall affect the authority of any management
official of any agency—
TTT
1 In a PBI ‘‘[j]ob-related, performance-based examples, such as
how an interviewee dealt with an irate customer, are used to
compare the response to the expectations of the specific job.’’ JA
42.
3
(C) with respect to filling positions, to make selections
for appointments from—
(i) among properly ranked and certified candidates
for promotion; or
(ii) any other appropriate source; TTTT
The FLRA reasoned that ‘‘when conducting PBIs, the Agen-
cy is involved in the decision-making process for making
selections for appointments’’ and, in particular, that the Agen-
cy ‘‘gathers information about the candidates and, based on
the information gathered, makes evaluations concerning
them.’’ 58 F.L.R.A. at 10. The ‘‘information-gathering and
evaluative aspects of PBIs,’’ the FLRA explained, ‘‘demon-
strate that PBIs are an integral part of the ‘discussions and
deliberations’ that lead to selection decisions,’’ 58 F.L.R.A. at
9 (quoting AFGE Local 1923, 44 F.L.R.A. 1405, 1442 (1992)),
and the Authority had previously held such ‘‘discussions and
deliberations’’ affect management rights, see 58 F.L.R.A. at
10 (‘‘The Authority has long held that proposals providing for
union participation in ‘discussions and deliberations leading to
decisions’ involving the exercise of management’s rights affect
those rights.’’) (citing AFGE Local 1923, 44 F.L.R.A. at 1442
(citing Nat’l Fed’n of Fed. Employees, Local 1437, 35
F.L.R.A. 1052 (1990))). Because the information-gathering
PBIs are an integral part of the deliberative and decisionmak-
ing process, it was reasonable for the FLRA to conclude that
union presence at the PBIs, without management consent,
will interfere with management’s authority to make selections
for appointments and therefore to declare the Union’s propos-
al nonegotiable. See Nat’l Fed’n of Fed. Employees, Local
1745 v. FLRA, 828 F.2d 834, 838 (D.C. Cir. 1987) (‘‘We
sustain the FLRA in its holding that the right of selection
conferred on management by Section 7106(a)(2)(C) extends to
the entire selection process, as conducted in accordance with
subsections (C)(i) and (ii).’’).2
2 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
4
Second, the FLRA determined that the proposal is not
negotiable as a ‘‘procedure’’ under 5 U.S.C. § 7106(b)(2):
(b) Nothing in this section shall preclude any agency
and any labor organization from negotiating–
TTT
(2) procedures which management officials of the
agency will observe in exercising any authority under
this section; TTTT
5 U.S.C. § 7106(b)(2). As with the management rights de-
termination, the Authority relied on its precedent addressing
‘‘discussions and deliberations pertaining to the exercise of
management’s right [to select under section 7106(a)(2)(C)],’’
which it has concluded ‘‘are not procedures, but concern
management’s substantive decision-making process.’’ Nat’l
Treasury Employees Union, 28 F.L.R.A. 647, 649 (1987).
Again, we find the Authority reasonably applied its prece-
dent to prevent interference with the information-gathering
portion of the process. The Union points to other FLRA
decisions finding negotiable proposals which allowed union
based. As the Union notes, the Authority’s decision cites precedent
in which a proposal was found nonnegotiable because it directly
interfered with management’s discussions and deliberations. See
Nat’l Fed’n of Fed. Employees, Local 1437, 35 F.L.R.A. 1052, 1061–
62 (1990) (proposal requiring management to select member of
Agency’s rating and ranking panel from union-compiled list nonne-
gotiable). The Authority cites Nat’l Fed’n of Fed. Employees,
Local 1437 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).
5
representatives at meetings where employees received ‘‘op-
portunity to improve performance’’ letters or which required
priority consideration in filling vacancies to be given to bar-
gaining unit employees (but which did not require selection
of such employees or limit selection to them). In each case,
however, the Authority made clear that the subject of the
proposal was merely a ‘‘procedure’’ and that it did not affect
the substance of the selection process.3 As we explained
above, the proposal here does interfere with the selection
process.
Third, the Authority determined that the proposal is not
negotiable as an ‘‘appropriate arrangement’’ under 5 U.S.C.
§ 7106(b)(3). This section provides:
(b) Nothing in this section shall preclude any agency
and any labor organization from negotiating—
TTT
(3) appropriate arrangements for employees ad-
versely affected by the exercise of any authority under
this section by such management officials.
5 U.S.C. § 7106(b)(3). In applying this provision, the FLRA
first determines whether ‘‘an adverse effect is reasonably
foreseeable’’ and if ‘‘the disputed proposal is intended to be
an arrangement for employees adversely affected’’; if so, the
3 See AFGE Local 3354, 34 F.L.R.A. 919, 926 (1990) (because
performance improvement letter ‘‘applies only after the Agency’s
internal deliberative process concerning application of performance
standards has been completed,’’ it ‘‘does not permit the Union to
interject itself into the Agency’s internal deliberations concerning
the performance appraisal process’’); Ass’n of Civilian Techni-
cians, Volunteer Ch. 103, 55 F.L.R.A. 562, 565 (1999) (‘‘proposal
that requires an agency to give first consideration to bargaining
unit employees when filling vacant positions, but does not prevent
management from timely considering other applicants or expanding
the area of consideration once bargaining unit employees are con-
sidered, does not directly interfere with management’s right to
select from any appropriate source under section 7106(a)(2)(C)’’);
Laurel Bay Teachers Ass’n, 49 F.L.R.A. 679, 687 (1994) (same)
(citing AFGE Local 1923, 44 F.L.R.A. 1405, 1442 (1992)).
6
Authority then ‘‘will examine whether the proposal excessive-
ly interferes with management’s rights.’’ Nat’l Ass’n of Gov’t
Employees, Local R1–100, 39 F.L.R.A. 762, 766 (1991) (citing
Nat’l Fed’n of Fed. Employees, Local 2096, 36 FLRA 834, 841
(1990)). The Union did not make the threshold showing that
the proposal ‘‘is in fact intended to be an arrangement for
employees adversely affected by management’s exercise of its
rights’’ by ‘‘articulat[ing] how employees will be detrimentally
affected by management’s actions and how the matter pro-
posed for bargaining is intended to address or compensate for
the actual or anticipated adverse effects of the exercise of the
management right or rights.’’ Nat’l Ass’n of Gov’t Employ-
ees, Local R14–87, 21 F.L.R.A. 24, 31 (1986). There is no
dispute that any employee is free to have a Union representa-
tive present at a PBI if he chooses. Thus, the only effect of
the Agency’s assertion of its management right by rejecting
the infringing proposal is to prevent the Union from demand-
ing 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 overridden by the proposal. The Union identi-
fies two adverse effects it asserts will result from conducting
a PBI without its representative present: it will add to the
stress of those being interviewed and it will increase the
likelihood that improper questions will be asked. The Au-
thority reasonably concluded, however, that ‘‘for candidates
who do not want a Union observer present, such presence
would increase stress.’’ The Authority further noted that the
Union already has the ability to prevent improper questioning
because it ‘‘will be provided an advance copy of PBI questions
and will be allowed to consult with candidates after PBIs to
ensure that appropriate questions were asked.’’ 58 F.L.R.A.
at 68.
For the foregoing reasons, we conclude that the FLRA
reasonably declared the Union’s proposal to be nonegotiable
under 5 U.S.C. § 7106. Accordingly, the Union’s petition for
review is
Denied.