National Federation of Federal Employees, Local 1745 v. Federal Labor Relations Authority
| Decision Date | 18 September 1987 |
| Docket Number | No. 84-1054,84-1054 |
| Parties | 126 L.R.R.M. (BNA) 2342, 264 U.S.App.D.C. 254 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1745, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Federal Labor Relations authority.
Suzanne Kalfus, Washington, D.C., with whom H. Stephan Gordon and Catherine Waelder, were on brief, for petitioner.
Steven H. Svartz, Deputy Sol., Federal Labor Relations Authority, with whom Ruth E. Peters, Sol., and Matthew J. Wheeler, Atty., Federal Labor Relations Authority, Washington, D.C., were on brief, for respondent.
Before ROBINSON and STARR, Circuit Judges, and WILKEY, Senior Circuit Judge. *
Opinion for the Court filed by Circuit Judge ROBINSON.
In this collective bargaining controversy, we review a decision of the Federal Labor Relations Authority (FLRA) declaring nonnegotiable a union proposal that a qualified union member be permitted to serve on an agency panel responsible for development of criteria to be used in rating candidates for promotion. We find no indication that the decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 1 We therefore affirm.
The case before us arose under the labor-management relations provisions of the Civil Service Reform Act of 1978. 2 This legislation confers upon federal employees the right "to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees...." 3 The scope of the bargaining thereby authorized is not, however, unlimited; Section 7106(a) of the Act reserves to agency officials specific management prerogatives, not open to negotiation, including the right to make certain personnel decisions. 4 This power is, in turn, qualified by Section 7106(b), which establishes the negotiability of "procedures which management officials of the agency will observe in exercising any authority under this section." 5 These statutory directives frame the dispute over negotiability here presented.
In the course of collective bargaining, Local 1745 of the National Federation of Federal Employees advanced a proposal for union representation on a panel charged with rating and ranking candidates for promotion within the Veterans Administration (VA). A brief review of that agency's procedures is necessary to appreciate the functional significance of the union's proposition.
Evaluation of candidates for promotion at VA is conducted in accordance with the federal merit selection process. Applicants for promotion must meet the basic eligibility requirements established by the Office of Personnel Management for the position sought. 6 Promotion panels at the agency then assess the relative qualifications of eligible candidates, using two related measures. The panel first assembles a set of "selective factors" reflecting the specific knowledge, skills and other characteristics required for successful performance of the job to be filled. The panel then utilizes a second system of measurement, called a "crediting plan," to identify the type of candidate experience or education that will satisfy the selective factors in question, and to gauge the weight properly to be accorded each factor in assessing the relative qualifications of the aspirants eligible.
The selective factors and the crediting plans are used together to rate and rank candidates eligible for promotion. 7 Once a pool of best qualified candidates is constituted, their names are referred to the agency's "selecting official," 8 who may choose any candidate from the list or any candidate from another "appropriate source." 9 VA's promotion panel, called a rating and ranking panel, 10 currently has a membership of three: a representative of the Office of Personnel and two line officials familiar with the position to be filled. 11
The union proposal in dispute would substitute a union member for one of these three:
Union Proposal 1
The Union will appoint a participating member on the Rating Panel. The Union Member will be allowed access to all personnel records of employees being evaluated by the Promotion Panel.
If there are no qualified SME's [subject matter experts] available as a Union Member on the Rating Panel, then the Union Member will act as an Observer rather than a participating member.
Neither a Panel Member nor an Observer can be an applicant for a position under consideration by the Panel. Information discussed in Panel Meetings will be considered confidential and will not be discussed outside these meetings. 12
By the terms of the proposal, then, a union member would sit on the panel charged with the obligation of formulating the selective criteria to be used in rating candidates for promotion. Union participation in developing crediting-plan criteria for evaluation of the experience and education of qualified candidates for promotion is not at issue in this case. 13
The union submitted the proposal in question to VA, which refused to negotiate on the ground that it was nonnegotiable under Section 7106. The union then turned to FLRA for a negotiability determination, 14 and eventually FLRA issued its decision and order on the negotiability issues. 15
FLRA reviewed the union's proffer and found it to be nonnegotiable, reasoning that it directly interfered with exercises of management's exclusive power under Section 7106(A)(2)(C) to select candidates for appointment. 16 In this court, the union contends that FLRA erred in this determination. First, the union argues, FLRA misconstrued that section in holding that management's privilege to select candidates for appointment extends to formulation of the criteria by which they are to be evaluated. Furthermore, the union argues, even if Section 7106(a)(2)(C) is to be so construed, the proposal remains negotiable under Section 7106(b)(2) because it is purely procedural in character. 17
Judicial scrutiny of FLRA orders is governed by Section 7123(c) of the Act, which specifies that the review shall be conducted on the record in accordance with Section 706 of the Administrative Procedure Act. 18 That familiar provision directs courts to invalidate only such agency action as is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 19 Further guidance is afforded by the Supreme Court's decision in Bureau of Alcohol, Tobacco, and Firearms v. FLRA, 20 which cautions that FLRA "is entitled to considerable deference when it exercises its 'special function of applying the general provisions of the [Act] to the complexities' of federal labor relations." 21 The respect owed FLRA decisions, while "considerable," is not, however, absolute. Reviewing tribunals, the Court said, should defer to FLRA's "reasonable and defensible constrictions," but should not " 'rubber- stamp ... administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.' " 22 These pronouncements reaffirm in the federal collective bargaining context, the general principle that courts will give great weight to "an interpretation of a statute by the agency entrusted with its administration ... '[t]he construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.' " 23
On our review of FLRA's negotiability determination, we turn first to the language of Section 7106 of the Act, which enumerates the management prerogatives exempt from bargaining. Protected is the authority of any management official "to fil[l] positions, to make selections for appointments from--(i) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source...." 24 By FLRA's interpretation, management's statutorily-protected right to make selections for appointments includes "the discretion to determine, as an integral aspect of the process of selection, the selective factors (i.e., the knowledges, skills and abilities necessary to successful performance of the work of the position) to be utilized in a merit promotion plan." 25 By contrast, the union construes Section 7106 quite literally, as excepting from collective bargaining only the privilege of making final selections--or what it calls "the ultimate choice regarding the promotion selection"--while leaving negotiable the question of the standards and procedures by which candidates for promotion are to be rated and ranked. 26
We sustain 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). FLRA's construction parallels its reading of Section 7106(a)(2)(A), which we upheld in Department of Defense v. FLRA. 27 We there affirmed FLRA's conclusion that the appointive power reserved to management by Section 7106(a)(2)(A) comprehends "more than a right to say yes or no to an employee who is identified for assignment under selection standards negotiated with a union." 28 Here we find equally reasonable FLRA's determination that the right of selection safeguarded by Section 7106(a)(2)(C) is more than the right to select candidates for promotion from a pool whose composition is the teamwork of the agency and the union. In this instance, no less than in Department of Defense, it was entirely logical for FLRA to conclude that adoption of the "constructively literalist construction" 29 proffered by the union would eviscerate the authority preserved for management by Section 7106. 30 FLRA's interpretation of the statute is, moreover, responsive to the congressional mandate that the bargaining provisions of the Act be implemented "in a manner consistent with the requirement of an...
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