[ v06 p110 ]
06:0110(24)CA
The decision of the Authority follows:
6 FLRA No. 24
DIRECTOR OF ADMINISTRATION
HEADQUARTERS, U.S. AIR FORCE
Respondent
and
AFGE-GAIU COUNCIL OF HQ.
USAF LOCALS, AFL-CIO
Charging Party
Case No. 3-CA-94
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
NOT ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
THEREAFTER, THE CHARGING PARTY FILED EXCEPTIONS TO THE JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE RESPONDENT FILED AN OPPOSITION TO
SUCH EXCEPTIONS.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
IN AGREEMENT WITH THE JUDGE, THE AUTHORITY FINDS THAT THE RESPONDENT
DID NOT VIOLATE SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE, AS
ALLEGED, BY ITS ADMITTED REFUSAL TO PROVIDE THE CHARGING PARTY WITH
INFORMATION CONCERNING "CONTRACTS FOR SERVICES WHICH HAVE BEEN LET OR
WHICH MAY IMPACT UPON BARGAINING UNIT EMPLOYEES. . . . " AS CONCLUDED BY
THE JUDGE, THE CHARGING PARTY'S REQUEST FOR SUCH INFORMATION WAS
SPECIFICALLY BASED UPON ARTICLE 17, SECTION 2 OF THE PARTIES' MEMORANDUM
OF AGREEMENT (MOA) AND THE ONLY BASIS FOR WHICH THE CHARGING PARTY WAS
SEEKING THE INFORMATION WAS "TO ADMINISTER" THAT CONTRACT PROVISION.
ARTICLE 17, SECTION 2 OF THE MOA PROVIDES AS FOLLOWS:
ARTICLE 17. CIVILIAN/MILITARY EMPLOYMENT
SECTION 2. USE OF CONTRACTOR PERSONNEL. CONTRACTOR PERSONNEL WILL
BE USED TO REPLACE
CIVILIAN PERSONNEL ONLY WHEN IT IS MORE ECONOMICAL TO DO SO.
THE AUTHORITY CONCLUDES, AS FOUND BY THE JUDGE, THAT THE INFORMATION
REQUESTED WAS NOT RELEVANT AND NECESSARY TO THE ADMINISTRATION OF
ARTICLE 17, SECTION 2 WITHIN THE MEANING OF SECTION 7114(B)(4)(B) OF THE
STATUTE, /1/ NOTING PARTICULARLY THAT NO UNIT EMPLOYEES HAD BEEN
DISPLACED, REASSIGNED, SUBJECTED TO REDUCTION IN FORCE, OR OTHERWISE
ADVERSELY AFFECTED AND THAT NO GRIEVANCES WERE PENDING AS A RESULT OF
THE RESPONDENT'S CONTRACTING OUT. ACCORDINGLY, THE RESPONDENT WAS UNDER
NO STATUTORY OBLIGATION TO PROVIDE THE REQUESTED INFORMATION. /2/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-94 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 17, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ DECISION FOLLOWS --------------------
DIRECTOR OF ADMINISTRATION
HEADQUARTERS, U.S. AIR FORCE
RESPONDENT /3/
AND
AFGE-GAIU COUNCIL OF HQ.
USAF LOCALS, AFL-CIO
CHARGING PARTY
CASE NO. 3-CA-94
NICHOLAS J. ANGELIDES, LT. COL.
FOR THE RESPONDENT
EDWARD H. PASSMAN, ESQUIRE
FOR THE CHARGING PARTY
BRUCE D. ROSENSTEIN, ESQUIRE
GLORIA CRAWFORD, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DECISION
DECISION
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
IT WAS INSTITUTED BY THE ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING
ON DECEMBER 21, 1979 BASED UPON A CHARGE FILED ON MARCH 30, 1979. THE
COMPLAINT WAS AMENDED ON DECEMBER 27, 1979.
THE COMPLAINT, AS AMENDED, ALLEGES THAT THE CHARGING PARTY (ALSO
REFERRED TO HEREIN AS THE UNION) REQUESTED THE RESPONDENT TO FURNISH IT
WITH INFORMATION CONCERNING "CONTRACTS FOR SERVICES WHICH HAVE BEEN LET
OR WHICH MAY IMPACT UPON BARGAINING UNIT EMPLOYEES." RESPONDENT'S
ADMITTED REFUSAL TO PROVIDE THE INFORMATION IS ALLEGED TO BE A VIOLATION
OF SECTION 7116(A)(1) AND (5) OF THE STATUTE. FURTHER, IT IS ALLEGED
THAT SUCH CONDUCT CONSTITUTES A FAILURE TO COMPLY WITH SECTION
7116(A)(1) AND (8). RESPONDENT'S DEFENSE, WHICH WILL BE MORE FULLY
DISCUSSED LATER, IS THAT IT HAD NO OBLIGATION TO FURNISH THE INFORMATION
REQUESTED BECAUSE THE UNION HAS NOT SATISFIED ITS BURDEN OF ESTABLISHING
ITS ENTITLEMENT TO THE INFORMATION BY FIRST SHOWING THAT THE PARTICULAR
INFORMATION SOUGHT WAS "REASONABLY AVAILABLE AND NECESSARY FOR THE UNION
TO PERFORM ITS REPRESENTATIONAL DUTIES OF POLICING THE ADMINISTRATION OF
THE COLLECTIVE BARGAINING AGREEMENT." RESPONDENT FURTHER CONTENDS THAT
ARTICLE 17, SECTION 2 OF THE AGREEMENT WAS UNLAWFUL AND, THEREFORE, AN
IMPROPER BASIS UPON WHICH TO GROUND AN OBLIGATION TO PROVIDE INFORMATION
UNDER SECTION 7114 OF THE STATUTE.
AT THE HEARING IN WASHINGTON, D.C., ALL PARTIES WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
WITNESSES, AND ARGUE ORALLY. THEREAFTER, RESPONDENT AND COUNSEL FOR
GENERAL COUNSEL FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED. TO THE
EXTENT APPLICABLE, THE PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
SUBMITTED BY THE PARTIES HAVE BEEN ADOPTED WITH APPROPRIATE
MODIFICATION. FURTHER, THE GENERAL COUNSEL'S MOTION TO CORRECT THE
TRANSCRIPT HAS BEEN CAREFULLY REVIEWED AND IS HEREBY GRANTED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING:
FINDINGS OF FACT
1. THE CHARGING PARTY IS, AND AT ALL RELEVANT TIMES HAS BEEN, THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF A UNIT CONSISTING OF ALL
CIVILIAN, GENERAL SCHEDULE AND WAGE GRADE NON-SUPERVISORY,
NON-PROFESSIONAL EMPLOYEES SERVICED BY THE HEADQUARTERS USAF CIVILIAN
PERSONNEL OFFICE, EXCLUDING SUPERVISORS, MANAGEMENT OFFICIALS, GUARDS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A CLERICAL
CAPACITY, AND EMPLOYEES ON NONRECURRING TEMPORARY APPOINTMENTS NOT
EXCEEDING 90 DAYS.
A. THERE ARE APPROXIMATELY 2,000 EMPLOYEES IN THE BARGAINING UNIT,
THE MAJORITY OF WHOM ARE LOCATED IN THE PENTAGON, WITH OTHERS LOCATED AT
BOLLING AIR FORCE BASE AND OTHER OFFICE SPACE IN THE WASHINGTON, D.C.
AREA. NOTWITHSTANDING A CLAIM BY THE UNION THAT THE SIZE OF THE UNIT
HAS DECREASED IN RECENT YEARS, THERE IS NO PERSUASIVE EVIDENCE TO
SUPPORT SUCH CLAIM.
B. SOME OF THE POSITIONS HELD BY BARGAINING UNIT EMPLOYEES INCLUDE
BUT ARE NOT LIMITED TO CLERKS, BUDGET ANALYSTS, MANAGEMENT ANALYSTS,
COMPUTER SPECIALISTS, AND COMPUTER OPERATORS.
2. THE UNION ENTERED INTO A MEMORANDUM OF AGREEMENT (MOA) WITH THE
DIRECTOR OF ADMINISTRATION, HEADQUARTERS USAF, THE LEVEL OF EXCLUSIVE
RECOGNITION WHICH WAS EFFECTIVE DECEMBER 14, 1977 FOR A PERIOD OF THREE
(3) YEARS FROM SEPTEMBER 30, 1977.
3. ARTICLE 17 OF THE CONTRACT ADDRESSES THE SUBJECT OF
"CIVILIAN/MILITARY EMPLOYMENT" AND STATES AS FOLLOWS:
SECTION 1. CIVILIAN/MILITARY EMPLOYMENT. THE EMPLOYER AGREES THAT
CIVILIAN EMPLOYEES
SHALL BE UTILIZED IN ALL AUTHORIZED POSITIONS WHICH DO NOT REQUIRE
MILITARY INCUMBENTS FOR
REASONS OF LAW, DIRECTIVES, REGULATIONS, OR WHICH DO NOT REQUIRE A
MILITARY BACKGROUND FOR
SUCCESSFUL PERFORMANCE OF THE DUTIES INVOLVED.
SECTION 2. USE OF CONTRACTOR PERSONNEL. CONTRACTOR PERSONNEL WILL
BE USED TO REPLACE
CIVILIAN PERSONNEL ONLY WHEN IT IS MORE ECONOMICAL TO DO SO.
4. BY LETTER OF JANUARY 10, 1979 MR. FRED SMALL, PRESIDENT OF THE
UNION, REQUESTED THAT, PURSUANT TO ARTICLE 17, SECTION 2 OF THE MOA, THE
UNION BE PROVIDED A MONTHLY REPORT, BEGINNING NOT LATER THAN JANUARY 31,
1979. THE REPORT SOUGHT WAS TO REFLECT THE FOLLOWING INFORMATION FOR
EACH CONTRACT FOR SERVICES" WHICH HAD BEEN LET OR WHICH MAY IMPACT UPON
BARGAINING UNIT EMPLOYEES REPRESENTED BY" THE UNION.
A. CONTRACT NUMBER.
B. NAME OF VENDOR.
C. TYPE OF SERVICE PROVIDED.
D. NAME OF HQ USAF OFFICE REQUESTING THE SERVICE.
E. NAME OF THE CONTRACT MONITOR.
F. ANNUAL COST OF THE CONTRACT.
G. A COPY OF THE COST COMPARISON WHICH JUSTIFIED THE CONTRACT IN
LIEU OF IN-SERVICE
ACCOMPLISHMENT.
THE FOREGOING LETTER WAS ADDRESSED TO MR. WILLIAM ALLISON, CHIEF,
CLASSIFICATION AND EMPLOYEE-MANAGEMENT RELATIONS. ON THE BASIS OF
ALLISON'S TESTIMONY, I FIND THAT HE IS A MANAGEMENT OFFICIAL WITHIN THE
MEANING OF SECTION 7103(A)(11) AND AN AGENT OF RESPONDENT.
5. AFTER RECEIVING THE UNION'S REQUEST FOR INFORMATION, MR.
ALLISON, UNAWARE OF ANY EMPLOYEES HAVING BEEN IMPACTED BY MANAGEMENT'S
CONTRACTING OUT PRACTICES OR ANY PAST OR PLANNED DISPLACEMENT OF UNIT
EMPLOYEES BY CONTRACTING OUT OR OF THE KIND OF SERVICE CONTRACTS THE
UNION WANTED, SOUGHT CLARIFICATION FROM THE UNION'S PRESIDENT. IN
RESPONSE TO THE INQUIRY MR. SMALL SIMPLY STATED THAT THE INFORMATION WAS
NEEDED "TO REPRESENT UNIT EMPLOYEES." ACCORDING TO ALLISON, SMALL
OFFERED NO FURTHER AMPLIFICATION.
6. AWARE THAT NO GRIEVANCES WERE PENDING CONCERNING CONTRACTING OUT
AND THAT NO ASSERTION WAS MADE BY THE UNION THAT THE INFORMATION WAS
RELATED TO A POTENTIAL GRIEVANCE BEING INVESTIGATED, OR FOR PREPARATION
FOR NEGOTIATIONS, MR. ALLISON CONCLUDED THAT THE ONLY BASIS FOR WHICH
THE INFORMATION WAS SOUGHT WAS "TO ADMINISTER" ARTICLE 17, SECTION 2 OF
THE MOA. I FIND THAT THE EVIDENCE SUPPORTS THE CONCLUSION REACHED BY
ALLISON.
7. ON JANUARY 24, 1978, ALLISON SENT A LETTER TO THE UNION ASSERTING
THAT THE MOA DID NOT REQUIRE THAT THE DATA BE PROVIDED AND THAT THE
BARGAINING HISTORY MAKES IT CLEAR THAT THERE WAS NO INTENT TO REQUIRE
THAT THE EMPLOYER PROVIDE SUCH DATA. HE FURTHER WROTE THAT "THE ONLY
REQUIREMENT IS THAT WHEN CONTRACTOR PERSONNEL ARE USED TO REPLACE UNIT
EMPLOYEES THAT IT BE ' . . . MORE ECONOMICAL TO DO SO.'"
8. THE UNION'S ATTORNEY RESPONDED ON JANUARY 30TH WITH A LETTER
PURPORTING TO BE A PRE-COMPLAINT UNFAIR LABOR PRACTICE CHARGE BASED ON
MANAGEMENT'S REFUSAL TO PROVIDE THE LIST OF INFORMATION PURSUANT TO
ARTICLE 17, SECTION 2 OF THE AGREEMENT. ALTHOUGH THE ATTORNEY QUOTED
FROM THE STATUTE AND CITED CERTAIN CASE LAW IN SUPPORT OF HIS LEGAL
POSITION, I FIND THAT HE DID NOT CLEARLY AND EXPRESSLY INDICATE ANY
SPECIFIC PURPOSES FOR WHICH THE UNION WAS REQUESTING THE INFORMATION
SOUGHT.
9. IN RESPONSE THERETO, MR. ALLISON WROTE TO THE UNION'S ATTORNEY ON
MARCH 26, 1979. IN PERTINENT PART, HE STATED HIS POSITION AS FOLLOWS:
. . . THE EMPLOYER MAINTAINS THAT THE CONTRACT PROVISIONS AND
BARGAINING HISTORY DO NOT
REQUIRE DISCLOSURE OF THE REQUESTED DATA. TO DATE, THE UNION HAS NOT
SHOWN THE RELEVANCY OF
THE REQUEST TO ITS DAILY OPERATION. COLLECTIVE BARGAINING IS NOT IN
PROGRESS OR PENDING NOR
HAVE EMPLOYEES BEEN DISPLACED AS A RESULT OF SERVICE CONTRACTS. THE
BURDEN OF PROOF AS TO
RELEVANCY RESTS WITH THE UNION.
. . . THE UNION ALSO ASKED THAT THE REQUESTED DATA BE PROVIDED ON A
MONTHLY BASIS TO
INCLUDE A COPY OF THE COST COMPARISON WHICH JUSTIFIED THE CONTRACT.
WE FIND NO JURISDICTION
FOR PROVIDING THE UNION WITH SUCH A RECURRING REPORT NOR FOR
PROVIDING THE COST
COMPARISON. IN ADDITION TO THE LACK OF RELEVANCY, COST COMPARISON
DATA IS NOT MAINTAINED BY
THIS AGENCY BUT RATHER BY THE DEFENSE LOGISTICS AGENCY. . . . "
10. APPROXIMATELY 1,000 CONTRACTS, INCLUDING CALLS ON AND RENEWALS
OF A VARIETY OF CONTRACTS, HAVE BEEN LET INVOLVING SERVICES SINCE
NOVEMBER 14, 1977, THE DATE OF THE CURRENT CONTRACT. THESE CONTRACTS,
FOR EXAMPLE, COVERED SUCH SERVICES AS (A) TRANSLATION, (B) KEY PUNCHING,
(C) SYSTEMS DESIGN ANALYSIS, (D) INDEXING DATA ON MICROFILM OR
MICROFICHE, (E) EQUIPMENT SERVICE CONTRACTS FOR TYPEWRITERS, CARD PUNCH
OR DATA SERVICE, (F) SUPERVISORY FUNCTIONS, AND (G) PERSONNEL SERVICE.
11. PURSUANT TO A STIPULATION OF FACT ENTERED INTO BETWEEN THE
PARTIES AT THE HEARING, I FIND THAT SOME CONTRACTS INVOLVED THE
PERFORMANCE OF SERVICES WHICH CAN BE PERFORMED OR ARE BEING PERFORMED BY
UNIT EMPLOYEES.
(A) THE UNCONTRADICTED TESTIMONY OF ALLISON, WHOM I CREDIT, INDICATES
THAT NO WORK OF UNIT EMPLOYEES HAD BEEN CONVERTED TO CONTRACT AND
EMPLOYEES HAVE NOT BEEN IMPACTED EITHER THROUGH REDUCTION IN FORCE OR
THROUGH REASSIGNMENT AS A RESULT OF CONTRACTING OUT. ACCORDINGLY, I
DECLINE TO FIND THAT THESE CONTRACTS HAD HAD AN IMPACT UPON THE TERMS
AND CONDITIONS OF UNIT EMPLOYEES.
(B) I FURTHER FIND THAT NONE OF THE APPROXIMATELY 11 CONTRACTS
PRODUCED AT THE HEARING AS EXEMPLIFYING THE TYPES OF CONTRACT INVOLVED
WERE DEMONSTRATED TO HAVE ANY IMPACT ON UNIT EMPLOYEES' WORKING
CONDITIONS. RATHER, MOST WERE RENEWALS OF PRIOR AGREEMENTS AND OTHERS
CONCERNED THE CONTRACTING OF "NEW WORK" WHICH, WHILE WITHIN THE
CAPABILITY OF UNIT EMPLOYEE SKILLS, HAD NOT BEEN UNDERTAKEN BY THEM.
12. THE RECORDS OF SOME OF THE CONTRACTS LET, FOR THE PERFORMANCE OF
WORK WITHIN THE CAPABILITY OF UNIT EMPLOYEES, ARE MAINTAINED IN THE
REGULAR COURSE OF BUSINESS AT ABOUT 2 LOCATIONS BY THE AGENCY WITHIN
SEPARATE OPERATING ACTIVITIES AT THE PENTAGON AND WERE REASONABLY
AVAILABLE. SOME, BUT NOT ALL, OF THESE CONTRACTS COULD CONSTITUTE
GUIDANCE, ADVISE, COUNSEL OR TRAINING OF MANAGEMENT OFFICIALS RELATING
TO COLLECTIVE BARGAINING AND SOME WERE ISSUED BY THE GENERAL SERVICES
ADMINISTRATION WITH ANY COST RECORDS MAINTAINED BY THAT ORGANIZATION.
13. INFORMATION IN THE FORM REQUESTED BY THE UNION IS NOT MAINTAINED
BY MANAGEMENT IN THE REGULAR COURSE OF BUSINESS AND GATHERING THE
INFORMATION WANTED BY THE UNION WOULD HAVE REQUIRED A RATHER EXTENSIVE
SEARCH OF THE CONTRACT FILES IN VIEW OF THE BROAD LANGUAGE OF THE
REQUEST WHICH EMBRACES SUCH AGREEMENTS AS EQUIPMENT SERVICE CONTRACTS
AND SERVICE CONTRACTS INVOLVING SUPERVISORY FUNCTIONS.
14. ALLISON TESTIFIED, AND I FIND, THAT ONE OF SEVERAL
CONSIDERATIONS TAKEN INTO ACCOUNT IN DECIDING WHETHER TO CONTRACT OUR
WORK IS WHETHER IT WOULD BE MORE ECONOMICAL TO HAVE THE WORK PERFORMED
BY THE SUBCONTRACTORS OR BY MEMBERS OF THE BARGAINING UNIT.
15. AIR FORCE MANUAL 26-1 (OCTOBER 10, 1978) REQUIRES NOTICE TO AN
EXCLUSIVE REPRESENTATIVE OF PLANNED COST STUDIES, MILESTONE SCHEDULES
AND POSSIBLE IMPACT ONLY WHERE THERE IS A POSSIBLE ADVERSE IMPACT ON
EMPLOYEES TERMS AND CONDITIONS OF EMPLOYMENT. /4/
PARAGRAPH 1-15, "RESPONSIBILITIES OF STEERING GROUP AND PARTICIPATING
STAFF AGENCIES," SUBPARAGRAPH C, "MILITARY AND CIVILIAN PERSONNEL
OFFICES," PROVIDES IN PERTINENT PART THAT MANAGEMENT:
(1) NOTIFIES THE LABOR ORGANIZATION THAT IS THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES
CONCERNED, OF THE PLANNED COST STUDY, MILESTONE SCHEDULE, AND
POSSIBLE IMPACT ON
EMPLOYEES. INVITES UNION REPRESENTATIVES TO THE BID OPENING AND
NOTIFIES THEM
OF THE FINAL DECISION. ACTIVITIES MUST COMPLY WITH THE REQUIREMENTS
OF SECTION 11(A) OF EO
11491 WITH RESPECT TO THE IMPACT OF CONVERTING TO CONTRACT ON
EMPLOYEES INCLUDED IN UNITS OF
EXCLUSIVE RECOGNITION AND THE IMPLEMENTATION OF NEW OR REVISED
PERSONNEL POLICIES, PRACTICES,
OR MATTERS AFFECTING THE WORKING CONDITIONS OF UNIT EMPLOYEES. THESE
ACTIONS MUST BE
ACCORDING TO AFR 40-711, SUBPARAGRAPHS 4B(6) AND 4B(7). LABOR
ORGANIZATIONS ARE PROVIDED
MILESTONE DATES AND ALSO PROVIDED IN-SERVICE COST DETERMINATIONS
ACCORDING TO PARAGRAPHS 1-19
THRU 1-21.
16. ALTHOUGH RESPONDENT HAS NOT PROVIDED ANY INFORMATION TO THE
UNION, THERE IS NO INDICATION THE CONTRACTS WHICH HAD BEEN LET MIGHT
IMPACT UPON UNIT MEMBERS.
17. THE FACTS SET FORTH ABOVE CONCERNING THE BASIS FOR THE UNION'S
REQUEST FOR DATA DEAL PRIMARILY WITH WHAT IT EXPRESSED TO RESPONDENT,
ORALLY OR IN WRITING, DURING THE TIMEFRAME WHEN THE UNFAIR LABOR
PRACTICE ALLEGEDLY OCCURRED. THE EFFORTS BY THE AGENCY TO ASCERTAIN THE
REAL PURPOSE OF THE UNION'S REQUEST WERE UNSUCCESSFUL, BUT FURTHER LIGHT
ON THE SUBJECT WAS ADDUCED AT THE HEARING. THUS, UNION PRESIDENT SMALL
EXPLAINED, BUT OFFERED NO PERMANENT EVIDENCE IN SUPPORT THEREOF, THAT
OVER A PERIOD OF YEARS THERE HAD BEEN A DECREASE IN THE NUMBER OF
PERSONNEL IN THE BARGAINING UNIT AND THAT WORK FORMERLY PERFORMED BY
UNIT EMPLOYEES WAS NOW BEING PERFORMED BY MILITARY PERSONNEL OR BY
CONTRACT. HE STATED THAT THE UNION "JUST WANTED TO FIND OUT . . . IF
THESE CONTRACTS HAD BEEN LET PROPERLY, THAT IS, WITH COST COMPARISONS,
IF THE WORK TRULY WAS BEING DONE BY CONTRACT MORE ECONOMICALLY THAN IT
COULD HAVE BEEN DONE IN-HOUSE." (TR. 73). ALONG THESE SAME LINES,
COUNSEL FOR THE GENERAL COUNSEL ARGUED AT THE HEARING THAT "IT WAS
INCUMBENT UPON THE EMPLOYER TO TURN OVER THAT INFORMATION TO THE UNION
SO THEY COULD DETERMINE WHETHER OR NOT IT WAS MORE ECONOMICAL FOR THE
EMPLOYER TO SUBCONTRACT VERSUS TO HAVE MEMBERS OF THE COLLECTIVE
BARGAINING UNIT PERFORM THE UNDERLYING WORK (TR. 34)."
ISSUES
I. WAS THE INFORMATION SOUGHT BY THE UNION "REASONABLY AVAILABLE AND
NECESSARY"-- WITHIN THE MEANING OF SECTION 7114(B)(4)(B)-- FOR THE UNION
TO PERFORM ITS REPRESENTATIONAL DUTIES OF POLICING THE ADMINISTRATION OF
THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES. /5/
II. DOES ARTICLE 17, SECTION 2 OF THE CONTRACT RESTRICT THE EXERCISE
OF MANAGEMENT'S RESERVED RIGHT TO CONTRACT OUT WORK? IF SO, IS THE
UNION THEREBY PRECLUDED FROM REQUESTING INFORMATION PURSUANT TO SECTION
7114 OF THE STATUTE FOR THE PURPOSE OF POLICING AN "UNLAWFUL AND
UNENFORCEABLE" CONTRACT PROVISION?
DISCUSSION AND CONCLUSIONS OF LAW
I. WHETHER THE INFORMATION SOUGHT BY THE UNION WAS REASONABLY
AVAILABLE AND NECESSARY WITHIN THE MEANING OF SECTION 7114(B)(4)(B).
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE DECLARES IT AN
UNFAIR LABOR PRACTICE FOR AN AGENCY "TO INTERFERE WITH, RESTRAIN, OR
COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER .
. . " /6/ THE STATUTE BY REFUSING " . . . TO CONSULT OR NEGOTIATE IN
GOOD FAITH WITH A LABOR ORGANIZATION AS REQUIRED BY . . . " THE STATUTE.
/7/ THESE PROVISIONS ARE, FOR THE MOST PART, RESTATEMENTS OF PROSCRIBED
EMPLOYER CONDUCT CONTAINED IN BOTH THE STATUTE'S PREDECESSOR, EXECUTIVE
ORDER 11491, AS AMENDED, /8/ AND THE NATIONAL LABOR RELATIONS ACT
(NLRA), /9/ AS AMENDED.
THE STATUTE ALSO CREATES A NEW UNFAIR LABOR PRACTICE. IT MAKES
ACTIONABLE AN AGENCY'S FAILURE OR REFUSAL TO COMPLY WITH ANY OTHER
PROVISIONS OF THE ACT, /10/ INCLUDING, FOR EXAMPLE, SECTION 7114 WHICH
PROVIDES, IN PERTINENT PART, AS FOLLOWS:
"(B) THE DUTY OF AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE TO
NEGOTIATE IN GOOD FAITH UNDER
SUBSECTION (A) OF THIS SECTION SHALL INCLUDE THE OBLIGATION . . .
"(4) IN THE CASE OF AN AGENCY, TO FURNISH TO THE EXCLUSIVE
REPRESENTATIVE INVOLVED, OR ITS
AUTHORIZED REPRESENTATIVE, UPON REQUEST AND, TO THE EXTENT NOT
PROHIBITED BY LAW, DATA--
"(A) WHICH IS NORMALLY MAINTAINED BY THE AGENCY IN THE REGULAR COURSE
OF BUSINESS;
"(B) WHICH IS REASONABLY AVAILABLE AND NECESSARY FOR FULL AND PROPER
DISCUSSION,
UNDERSTANDING, AND NEGOTIATION OF SUBJECTS WITHIN THE SCOPE OF
COLLECTIVE BARGAINING; AND
"(C) WHICH DOES NOT CONSTITUTE GUIDANCE, ADVICE, COUNSEL, OR TRAINING
PROVIDED FOR
MANAGEMENT OFFICIALS OR SUPERVISORS, RELATING TO COLLECTIVE
BARGAINING; AND . . .
THIS PROVISION FINDS NO EXPRESS EQUIVALENT IN EITHER THE ORDER OR THE
NLRA. HOWEVER, IN BOTH OF THESE SIMILAR SYSTEMS OF LABOR LAW, THE DUTY
TO PROVIDE INFORMATION, AS AN ASPECT OF GOOD FAITH BARGAINING, HAS
DEVELOPED THROUGH CASE LAW. THUS, IN THE FEDERAL SECTOR IT HAS BEEN
OBSERVED THAT, UNDER THE ORDER, MANAGEMENT HAD THE OBLIGATION TO PROVIDE
THE UNION INFORMATION WHICH WAS RELEVANT AND NECESSARY TO THE
PERFORMANCE OF ITS REPRESENTATIONAL FUNCTIONS, INCLUDING THE CONDUCT OF
NEGOTIATIONS /11/ AND ADMINISTRATION OF THE COLLECTIVE BARGAINING
AGREEMENT BETWEEN THE PARTIES. /12/ THE DUTY TO PROVIDE INFORMATION AS
INCIDENT TO THE OBLIGATION TO BARGAIN IN GOOD FAITH HAS LONG BEEN
RECOGNIZED IN LABOR RELATIONS UNDER THE NLRA. /13/ IN NLRB V. ACME
INDUSTRIAL COMPANY, /14/ WHERE THE NATIONAL LABOR RELATIONS BOARD (NLRB)
HAS FOUND THAT THE REQUESTED INFORMATION WAS NECESSARY TO ENABLE THE
UNION TO INTELLIGENTLY EVALUATE FILED GRIEVANCES, THE SUPREME COURT
OBSERVED THAT:
THERE CAN BE NO QUESTION OF THE GENERAL OBLIGATION OF AN EMPLOYER TO
PROVIDE INFORMATION
THAT IS NEEDED BY THE BARGAINING REPRESENTATIVE FOR THE PROPER
PERFORMANCE OF ITS
DUTIES. . . . SIMILARLY, THE DUTY TO BARGAIN UNQUESTIONABLY EXTENDS
BEYOND THE PERIOD OF
CONTRACT NEGOTIATIONS AND APPLIES TO LABOR-MANAGEMENT RELATIONS
DURING THE TERM OF THE
AGREEMENT. 385 U.S.,AT 436-7.
IN EVALUATING REQUESTS FOR INFORMATION "(T)HE FIRST QUESTION . . .
IS ALWAYS OF ONE RELEVANCE. IF THE INFORMATION REQUESTED HAS NO
RELEVANCE TO ANY LEGITIMATE UNION COLLECTIVE BARGAINING NEED, A REFUSAL
TO FURNISH IT COULD NOT BE AN UNFAIR LABOR PRACTICE." /15/ THE EXISTENCE
OF A DUTY THUS DEPENDS UPON THE CIRCUMSTANCES OF EACH CASE.
THE SECOND QUESTION CONCERNS WHO HAS THE BURDEN OF PROOF AS TO THE
RELEVANCE OF THE INFORMATION. IN THIS REGARD, THE COURTS HAVE HELD IN
PRIVATE SECTOR CASES THAT CERTAIN TYPES OF INFORMATION-- SUCH AS WAGE
AND RELATED DATA-- ARE SO INTRINSIC TO THE "CORE OF THE
EMPLOYER-EMPLOYEE RELATIONSHIP" /16/ THAT SUCH INFORMATION IS CONSIDERED
"PRESUMPTIVELY RELEVANT." /17/ IN SUCH CASES THAT EMPLOYER HAS THE
BURDEN OF SHOWING LACK OF RELEVANCE. /18/ HOWEVER, AS TO OTHER MATTERS,
THE BURDEN IS ON THE UNION TO DEMONSTRATE THE RELEVANCE OF THE REQUESTED
INFORMATION TO BARGAINABLE ISSUES. /19/
IN SAN DIEGO NEWSPAPER GUILD V. NLRB, THE NEWSPAPER PERIODICALLY
CONDUCTED AN "OPERATION SURVIVAL" DURING WHICH IT TRAINED CERTAIN
INDEPENDENT CONTRACTORS AND INDIVIDUALS TO DO BARGAINING UNIT WORK IN
THE EVENT OF A STRIKE. THE UNION SOUGHT INFORMATION CONCERNING THE
IDENTITY AND COMPENSATION OF PERSONS PARTICIPATING IN THE PROJECT.
THOUGH IT HAD NO EVIDENCE TO SUPPORT ITS CONCERN, THE UNION DESIRED TO
ASCERTAIN THAT "OPERATIONAL SURVIVAL" DID NOT CAUSE ANY DEVIATION IN THE
TRAINING PROGRAM OF REGULAR EMPLOYEES OR RESULT IN BARGAINING UNIT WORK
BEING DONE OUTSIDE THE UNIT. ITS ONLY ACTION TO DETERMINE IF A
VIOLATION HAD OCCURRED WAS TO REQUEST THE INFORMATION SOUGHT.
THE NEWSPAPER REFUSED TO SUPPLY THE INFORMATION AND THE NLRB FOUND NO
UNFAIR LABOR PRACTICE. THE COURT OF APPEALS AFFIRMED THE BOARD,
STATING:
INDEED, THE UNION'S CLAIMS OF RELEVANCE AND NEED ARE SOLELY BASED ON
ITS DESIRE TO
DETERMINE IF THE COMPANY IS PERMITTING SURVIVAL PERSONNEL TO DO
BARGAINING UNIT WORK. . . .
HOWEVER, THE BOARD FOUND THAT THE UNION DID NOT MEET ITS BURDEN IN
THAT THE UNION ONLY
DEMONSTRATED AN ABSTRACT, POTENTIAL RELEVANCE OF THE INFORMATION TO
ITS ALLEGATION AND FAILED
TO SHOW THAT THE INFORMATION WAS ACTUALLY RELEVANT TO THE SITUATION
AS IT THEN EXISTED. 548
F.2D AT 868.
DATA CONCERNING CONTRACTING OUT IS NOT PRESUMPTIVELY RELEVANT IN THE
PRIVATE SECTOR. /20/ FURTHERMORE, THE DECISION TO CONTRACT OUT WORK IN
THAT SPHERE IS, UNDER CERTAIN CIRCUMSTANCES, A MANDATORY SUBJECT OF
BARGAINING, /21/ WHILE, BY STARK CONTRAST, THE DECISION TO CONTRACT OUT
WORK IS CLEARLY A RIGHT RESERVED TO MANAGEMENT IN THE FEDERAL SECTOR.
/22/ THUS, UNDER THE GUIDELINES AVAILABLE FROM THE PRIVATE SECTOR, AND
CONSISTENT WITH THE STATUTE AND THE LAW DEVELOPED UNDER THE ORDER, THE
UNION HAD THE BURDEN TO DEMONSTRATE TO THE AGENCY THE RELEVANCE OF THE
INFORMATION SOUGHT TO A COLLECTIVE BARGAINING PURPOSE, AND THE GENERAL
COUNSEL HAD TO SUSTAIN THIS BURDEN OF PROOF IN THIS PROCEEDING.
THE FOREGOING LEGAL PRINCIPLES, AS THEY APPLY TO THE FACTS OF THIS
CASE, ARE DISCUSSED HEREINAFTER. THE UNION'S REQUEST FOR INFORMATION IN
THIS CASE WAS IN CONNECTION WITH THE ADMINISTRATION OF ARTICLE 17,
SECTION 2 OF THE COLLECTIVE BARGAINING AGREEMENT. THIS IS EVIDENT IN
THAT THE UNION SPECIFICALLY REFERENCED THAT PROVISION IN ITS LETTER OF
JANUARY 10, 1979 AND, DURING THE HEARING, MR. SMALL, THE UNION'S
PRESIDENT, TESTIFIED THAT THAT PROVISION WAS THE ONLY ONE UPON WHICH THE
UNION BASED ITS REQUEST FOR INFORMATION. RESPONDENT CONTENDS, AND I
AGREE THAT WHERE THE UNION DOES SPECIFY THE PURPOSE FOR WHICH IT SOUGHT
INFORMATION, MANAGEMENT HAS A RIGHT TO RELY ON THAT ASSERTION. THIS IS
SO EVEN IF THE INFORMATION MIGHT ARGUABLY BE RELEVANT TO SOME OTHER
PURPOSE. THUS, THE BONA FIDES OF MANAGEMENT'S ACTION IN RESPONDING TO
THE REQUEST FOR UNION INFORMATION SHOULD BE TESTED AGAINST THE SPECIFIC
PURPOSE FOR WHICH THE UNION REQUESTED IT. ANACONDA AMERICAN BRASS CO.,
148 NLRB NO. 55, 57 LRRM 1001(1964). /23/
THE RESPONDENT CONTENDS, AND I AGREE, THAT THE INFORMATION SOUGHT BY
THE UNION WAS NOT RELEVANT AND NECESSARY TO THE ADMINISTRATION OF THE
ARTICLE 17, SECTION 2, OF THE PARTIES' COLLECTIVE AGREEMENT. THE
PROVISION IN QUESTION STATES THAT "CONTRACTOR PERSONNEL WILL BE USED TO
REPLACE CIVILIAN PERSONNEL ONLY WHEN IT IS MORE ECONOMICAL TO DO SO."
(GC EX. 2) THUS, THE ONLY CONTRACTS RELEVANT AND NECESSARY TO THE
ADMINISTRATION OF ARTICLE 17 WOULD BE CONTRACTS WHICH RESULT IN THE
DISPLACEMENT OF CIVILIAN EMPLOYEES BY CONTRACTOR PERSONNEL.
AT THE HEARING THERE WAS NO EVIDENCE PRESENTED THAT UNIT EMPLOYEES
MAY HAVE BEEN DISPLACED BY CONTRACTOR PERSONNEL. INDEED, THE EVIDENCE
WAS TO THE CONTRARY. IT SHOWS THAT NO EMPLOYEES HAVE BEEN DISPLACED BY
CONTRACTOR PERSONNEL, THAT THE MANAGEMENT WITNESS WAS NOT AWARE OF ANY
POSSIBLE DISPLACEMENTS AND THAT EMPLOYEES NEITHER HAD BEEN REASSIGNED
NOR SUBJECTED TO REDUCTION IN FORCE BECAUSE OF CONTRACTING OUT.
SIMILARLY, THE UNION'S PRESIDENT EXPRESSED HIS BELIEF THAT REDUCTIONS
HAD NOT RESULTED FROM CONTRACTING OUT AND CONFIRMED MR. ALLISON'S BELIEF
THAT NO GRIEVANCES INVOLVING ARTICLE 17, SECTION 2 WERE PENDING (TR. 64,
72). SINCE THERE WERE NO DISPLACEMENTS OF EMPLOYEES BY CONTRACTOR
PERSONNEL OR GRIEVANCES PENDING INVOLVING ARTICLE 17, SECTION 2, THERE
WAS NO REASONABLY DISCERNIBLE RELEVANCE OF THE CONTRACT DATA SOUGHT TO
THE ADMINISTRATION OF THAT ARTICLE. /24/
CONTRARY TO THE GENERAL COUNSEL'S CONTENTION, THE INFORMATION
REQUESTED BY THE UNION DOES NOT APPEAR TO RELATE TO OR BE NECESSARY FOR
THE ADMINISTRATION OF ARTICLE 17. RATHER, IT IS MUCH BROADER THAN WHAT
WOULD REASONABLY BE NEEDED BY THE UNION TO ADMINISTER OR POLICE THE
ADMINISTRATION OF THAT PROVISION. /25/ IN THIS REGARD, THE REQUEST FOR
CONTRACTS WHICH "HAD BEEN LET" WAS INDEFINITE AS TO THE PERIOD OF TIME
FOR WHICH THE UNION SOUGHT CONTRACTING INFORMATION; THERE WAS NO
DEFINITION AS TO THE TYPES OF CONTRACT SERVICES WHICH THE UNION WAS
INTERESTED IN EXCEPT THE VAGUE REFERENCE TO CONTRACTS WHICH MIGHT IMPACT
UNIT EMPLOYEES, /26/ AND THERE WAS NO HINT AS TO HOW THE SPECIFIC ITEMS
OF INFORMATION SOUGHT ABOUT THESE CONTRACTS, INCLUDING A COPY OF COST
COMPARISONS, PERTAINED TO THE CITED CONTRACT PROVISION.
THE VAGUE, GENERAL NATURE OF THE REQUEST PUT MANAGEMENT IN THE
POSITION OF HAVING TO ENGAGE IN PURE SPECULATION AND CONJECTURE, NOT TO
MENTION UNDERTAKING A SIGNIFICANT BURDEN OF HAVING TO REVIEW OF 1000
CONTRACTS LET DURING THE TERM OF THE CURRENT COLLECTIVE BARGAINING
AGREEMENT ALONE, AND EXTRACT THE INFORMATION SOUGHT IN ORDER TO COMPLY.
/27/ FACED WITH THIS VAGUE REQUEST FOR INFORMATION, MR. ALLISON
APPROACHED MR. SMALL IN AN ATTEMPT TO FIND OUT IF THERE WAS SOME BASIS
WHICH WOULD ENTITLE THE UNION TO THE INFORMATION SOUGHT. IN RESPONSE,
MR. ALLISON WAS MET BY THE UNION PRESIDENT'S GENERAL ASSERTION THAT THE
INFORMATION WAS NEEDED TO REPRESENT EMPLOYEES.
THUS, THE UNION IN THIS CASE SOUGHT INFORMATION NOT "PRESUMPTIVELY"
RELEVANT OR NECESSARY TO ITS CLAIMED PURPOSE OF ADMINISTERING A SPECIFIC
PROVISION OF THE COLLECTIVE BARGAINING AGREEMENT. WHEN CLARIFICATION
WAS SOUGHT BY MANAGEMENT IN A GOOD FAITH ATTEMPT TO CLARIFY THE REQUEST,
IT WAS MET WITH A STUBBORN INSISTENCE ON ENTITLEMENT WITHOUT
EXPLANATION.
IN THESE CIRCUMSTANCES, I FIND THAT THE UNION DID NOT SUSTAIN ITS
BURDEN OF SHOWING THAT THE DATA SOUGHT WAS RELEVANT AND NECESSARY WITHIN
THE MEANING OF SECTION 7114(B)(4)(B) AND, THEREFORE, THE RESPONDENT WAS
UNDER NO STATUTORY OBLIGATION TO PROVIDE THE UNION WITH THE LIST OF
CONTRACTS ON A MONTHLY BASIS AS REQUESTED. ACCORDINGLY, I FIND THAT THE
RESPONDENT HAS NOT FAILED TO COMPLY WITH SECTION 7114 AND HAS NOT
VIOLATED SECTIONS 7116(A)(1), (5) AND (8) OF THE STATUTE.
THE GENERAL COUNSEL'S CONTENTION THAT A UNION HAS A RIGHT TO
INFORMATION FOR THE PURPOSE OF CONTRACT ADMINISTRATION AND POLICING A
PARTICULAR CONTRACT PROVISION HAS SUPPORT IN THE CASE LAW ONLY WHERE THE
UNION IS ABLE TO SHOW RELEVANCE. A NAKED CLAIM IS NOT ENOUGH. EVEN IN
THE LEAD CASE OF J. I. CASE CO., RELIED UPON BY THE GENERAL COUNSEL, THE
COURT EMPHASIZED THAT THE UNION WAS ENTITLED TO DATA NEEDED "FOR
BARGAINING PURPOSES" EVEN THOUGH NEGOTIATIONS WERE NOT PENDING. /28/
THERE IS NO ALLEGATION IN THIS CASE THAT THE UNION REQUESTED THE DATA
FOR BARGAINING PURPOSES, NOR IS THERE EVIDENCE TO SUPPORT SUCH AN
ALLEGATION. /29/
AS NOTED ABOVE, THE UNION HAS FAILED TO SATISFY THE REQUIREMENT OF
NECESSITY AND RELEVANCE AS A BASIS TO JUSTIFY ITS REQUEST. IF THE
AGENCY HAD ANY DOUBTS BEFORE THE HEARING AS TO WHY THE UNION'S REQUEST
WAS SO BROAD, THERE SHOULD BE NO DOUBTS NOW. AS RELATED ABOVE IN
PARAGRAPH 17, UNION PRESIDENT SMALL MADE CLEAR AT THE HEARING THAT THE
REAL UNDERLYING PURPOSE OF THE REQUEST WAS TO EXAMINE (REVIEW) THE
CONTRACTS TO FIND OUT IF THEY "HAD BEEN LET PROPERLY." IN OTHER WORDS,
THE UNION WANTED TO CONDUCT A POST-AUDIT OF ALL CONTRACTS LET BY
RESPONDENT WITH A VIEW TOWARDS DETERMINING "IF THE WORK TRULY WAS BEING
DONE BY CONTRACT MORE ECONOMICALLY THAN IT COULD HAVE BEEN DONE
IN-HOUSE." I CAN EASILY UNDERSTAND WHY THE UNION WANTED THIS INFORMATION
BUT THE SCOPE OF ITS REQUEST WAS MUCH BROADER THAN THE REACH OF ARTICLE
17, SECTION 2. THERE IS NOTHING IN THE CONTRACT PROVISION THAT
PROHIBITS THE AGENCY FROM CONTRACTING OUT WORK WHICH COULD BE MORE
ECONOMICALLY PERFORMED BY UNIT EMPLOYEES SO LONG AS THE DECISION RESULTS
IN NO REPLACEMENT OF UNIT EMPLOYEES. THE PROBLEM WITH THE UNION'S REAL
PURPOSE IS THAT IT WANTED INFORMATION ABOUT A SUBJECT WHICH WAS
NONNEGOTIABLE IN THE FIRST PLACE AND NOT COVERED BY THE CONTRACT IN THE
SECOND PLACE.
II. WHETHER ARTICLE 17, SECTION 2 OF THE CONTRACT RESTRICTS THE
EXERCISE OF MANAGEMENT'S RESERVED RIGHT TO CONTRACT OUT WORK?
IT WAS WELL SETTLED UNDER EXECUTIVE ORDER 11491 THAT THE DECISION TO
CONTRACT OUT WORK INVOLVED THE EXERCISE OF MANAGEMENT'S RESERVED RIGHT
UNDER SEC. 12(B)(5) "TO DETERMINE THE . . . PERSONNEL BY WHICH . . .
OPERATIONS ARE TO BE CONDUCTED." TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL AND NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA,
FLRC NO. 71A-56, 1 FLRC 431(1973); LOCAL 174, AFGE, AFL-CIO AND
SUBSHIPS, USN, 11TH NAVAL DISTRICT, SAN DIEGO, CA, FLRC NO. 71A-49, 1
FLRC 427(1973); AFGE, LOCAL 3124 AND DOT, US COAST GUARD SUPPLY CENTER,
BROOKLYN, N.Y., FLRC NO. 77A-25, 5 FLRC 881(1977).
IN THE TIDEWATER CASE, THE FEDERAL LABOR RELATIONS COUNCIL FOUND
NON-NEGOTIABLE A PROVISION WHICH WOULD HAVE PREVENTED MANAGEMENT FROM
HAVING WORK NORMALLY PERFORMED BY UNIT EMPLOYEES CONTRACTED OUT OR
ASSIGNED TO NON-UNIT EMPLOYEES OR IF ECONOMIC CONSIDERATIONS OR
TECHNICAL CHANGES DICTATED OTHERWISE. IN SUMMARIZING ITS DECISION THE
FLRC OBSERVED, IN PART, THAT:
. . . THE PROPOSAL WOULD STRICTLY LIMIT THE FACTORS WHICH MANAGEMENT
COULD CONSIDER IN
MAKING THE JUDGMENT AS TO WHETHER CONTRACT PERSONNEL OR OTHER
NON-UNIT PERSONNEL WILL BE
UTILIZED TO PERFORM WORK NORMALLY PERFORMED IN THE UNIT. IN THAT
SENSE, THE PROPOSAL GOES TO
THE HEART OF THE DECISION MAKING PROCESS AND IS SUBSTANTIVE RATHER
THAN PROCEDURAL IN
NATURE. 1 FLRC AT 441.
THE COUNCIL, IN TIDEWATER, ALSO COMMENTED UPON THE DISTINCTIONS IN
LABOR RELATIONS POLICIES BETWEEN THE PRIVATE AND FEDERAL SECTORS BY
STATING THAT:
" . . . SPECIAL PUBLIC POLICY CONSIDERATIONS RELEVANT TO FEDERAL
GOVERNMENT CONTRACTING ARE
SO SUBSTANTIVE AS TO WARRANT REJECTION OF PRIVATE SECTOR EXPERIENCE
AND LAW AS CONTROLLING ON
THE SUBJECT. . . . (T)HERE IS NO COUNTERPART IN PRIVATE SECTOR LAW
TO THE ABSOLUTE
RESERVATION OF AUTHORITY IN AGENCY MANAGEMENT WHICH IS MANDATED BY
SECTION 12(B) OF THE
ORDER." 1 FLRC AT 441.
FINALLY, IN TIDEWATER, THE COUNCIL REJECTED A CONTENTION THAT THE
PROPOSED CONTRACTING OUT CLAUSE WAS SIMILAR TO CONTRACT PROVISIONS
ALREADY IN EXISTENCE IN PRIOR AGREEMENTS BETWEEN THE PARTIES AS WELL AS
OTHER FEDERAL SECTOR AGREEMENTS. "SUCH BARGAINING HISTORY IS WITHOUT
CONTROLLING SIGNIFICANCE," SAID THE COUNCIL AND "CANNOT ALTER THE
EXPRESS LANGUAGE AND INTENT OF THE ORDER." 1 FLRC AT 441.
MANAGEMENT'S RESERVED RIGHT UNDER SECTION 12(B)(5) OF THE ORDER HAS
BEEN MADE EVEN MORE EXPLICIT AND EMPHATIC BY SECTION 7106(A)(2)(B) OF
THE STATUTE WHICH STATES AS FOLLOWS:
"(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO
DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED;
THE STATUTE ALSO, IN SECTION 7114(B)(4)(B), SPECIFICALLY LIMITS
MANAGEMENT'S OBLIGATION TO PROVIDE INFORMATION WHICH IS "NECESSARY" . .
. FOR A FULL AND PROPER DISCUSSION, UNDERSTANDING, AND NEGOTIATION OF
SUBJECTS WITHIN THE SCOPE OF COLLECTIVE BARGAINING; . . .
HAVING FIRST SET FORTH THE APPLICABLE LEGAL PRECEDENT AND STATUTORY
REFERENCES, I SHALL NOW DISCUSS RESPONDENT'S CONTENTION THAT THIS
CONTRACT PROVISION RESTRICTS MANAGEMENT'S RESERVED RIGHT TO CONTRACT OUT
WORK WITHOUT BEING REQUIRED TO NEGOTIATE ITS DECISION WITH THE UNION.
ARTICLE 17, SECTION 2 STATES AS FOLLOWS: "CONTRACTOR PERSONNEL WILL BE
USED TO REPLACE CIVILIAN PERSONNEL ONLY WHEN IT IS MORE ECONOMICAL TO DO
SO."
I AGREE WITH RESPONDENT THAT THE PROVISION IN QUESTION RESTRICTS THE
FACTORS WHICH MANAGEMENT CAN CONSIDER IN DETERMINING WHETHER OR NOT A
DECISION TO CONTRACT OUT WORK IS APPROPRIATE. IT WOULD ABSOLUTELY
PREVENT THE CONTRACTING OUT OF WORK BEING PERFORMED BY UNIT EMPLOYEES
WHERE DISPLACEMENTS WOULD RESULT AND THE WORK CAN BE DONE MORE
ECONOMICALLY IN-HOUSE. BUT, OF COURSE, THIS IS THE PURPOSE OF HAVING
THE CONTRACT PROVISION FOR WHEN VIEWED FROM THE UNION'S VANTAGE POINT,
THE CLAUSE IS INTENDED TO PROTECT THE JOBS OF BARGAINING UNIT EMPLOYEES
BY DISCOURAGING CERTAIN TYPES OF CONTRACTING OUT PRACTICES.
IN VIEW OF THE STRONG LANGUAGE OF THE COUNCIL IN TIDEWATER AND THE
EXPLICIT LANGUAGE IN SECTION 7106 OF THE STATUTE, I FIND IN AGREEMENT
WITH RESPONDENT THAT THE CONTRACT PROVISION DOES RESTRICT MANAGEMENT'S
RESERVED RIGHT TO CONTRACT OUT WORK. I FIND NO MERIT AT ALL IN THE
GENERAL COUNSEL'S ARGUMENT THAT ARTICLE 17, SECTION 2 IS A PERMISSIVE
SUBJECT OF BARGAINING UNDER SECTION 11(B) OF THE ORDER AND "MERELY SETS
FORTH THE PROCEDURES TO BE FOLLOWED WITH REGARD TO CONTRACTING OUT. . .
. "
III. WHETHER ARTICLE 17, SECTION 2 OF THE CONTRACT IS UNLAWFUL AND
UNENFORCEABLE AND THEREFORE AN IMPROPER BASIS UPON WHICH TO REQUEST
INFORMATION PURSUANT TO SECTION 7114?
RESPONDENT CONTENDS THAT SECTION 7114(B)(4)(B) OF THE STATUTE
SPECIFICALLY LIMITS MANAGEMENT'S OBLIGATION TO PROVIDE INFORMATION TO
THAT WHICH PERTAINS TO "SUBJECTS WITHIN THE SCOPE OF COLLECTIVE
BARGAINING." SINCE THE ONLY ASSERTED REASON FOR THE UNION'S REQUEST FOR
INFORMATION WAS TO POLICE THE CONTRACTING OUT PROVISION IN ORDER TO
INSURE MANAGEMENT'S COMPLIANCE WITH THE RESTRICTION ON CONTRACTING OUT,
AND, SINCE THOSE RESTRICTIONS ARE WITHOUT THE SCOPE OF BARGAINING AS
DEMONSTRATED ABOVE, THERE WAS NO OBLIGATION ON MANAGEMENT'S PART TO
PROVIDE THE INFORMATION SOUGHT FOR THAT PURPOSE. IN CONCLUSION,
RESPONDENT ASSERTS THAT IT IS OF NO MOMENT THAT MANAGEMENT MISTAKENLY
INCLUDED THE RESTRICTIVE PROVISION IN ITS CONTRACT BECAUSE "RIGHTS
RESERVED EXCLUSIVELY TO MANAGEMENT'S DISCRETION BY LAW CAN NOT BE
BARGAINING AWAY."
I HAVE PREVIOUSLY DETERMINED THAT THE UNION HAS NOT ESTABLISHED ITS
RIGHT TO OBTAIN THE INFORMATION REQUESTED FROM RESPONDENT BECAUSE IT
FAILED TO SHOW ITS RELEVANCE AND NECESSITY TO THE ADMINISTRATION OF
ARTICLE 17, SECTION 2. ACCORDINGLY, SINCE I AM RECOMMENDING DISMISSAL
ON THAT BASIS, I DO NOT HAVE TO REACH THE QUESTION AS TO WHETHER THIS
CONTRACT PROVISION IS, IN ANY EVENT, UNLAWFUL AND UNENFORCEABLE.
THEREFORE, I DO NOT DECIDE WHAT EFFECT, IF ANY, SECTION 7135 OF THE
STATUTE HAS IN THIS MATTER.
ORDER
ON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF
LAW, I FIND THAT DIRECTOR OF ADMINISTRATION, HEADQUARTERS, U.S. AIR
FORCE HAS NOT ENGAGED IN CONDUCT WHICH FAILS TO COMPLY WITH SECTION 7114
AND VIOLATES SECTIONS 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE. ACCORDINGLY, I RECOMMEND THAT THE
COMPLAINT IN THIS CASE BE DISMISSED IN ITS ENTIRETY.
FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 23, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES: ---------------
/1/ SECTION 7114(B)(4)(B) PROVIDES AS FOLLOWS:
(B) THE DUTY OF AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE TO
NEGOTIATE IN GOOD FAITH UNDER
SUBSECTION (A) OF THIS SECTION SHALL INCLUDE THE OBLIGATION--
. . . .
(4) IN THE CASE OF AN AGENCY, TO FURNISH TO THE EXCLUSIVE
REPRESENTATIVE INVOLVED, OR ITS
AUTHORIZED REPRESENTATIVE, UPON REQUEST AND, TO THE EXTENT NOT
PROHIBITED BY LAW, DATA--
. . . .
(B) WHICH IS REASONABLY AVAILABLE AND NECESSARY FOR FULL AND PROPER
DISCUSSION,
UNDERSTANDING, AND NEGOTIATION OF SUBJECTS WITHIN THE SCOPE OF
COLLECTIVE BARGAINING . . .
/2/ IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, WE FIND IT
UNNECESSARY TO REACH THE QUESTION OF WHETHER THE CONTRACT PROVISION
CITED IS UNLAWFUL AND UNENFORCEABLE AND THEREFORE DO NOT ADOPT ANY
DICTUM FOUND IN HIS RECOMMENDED DECISION AND ORDER.
/3/ THE NAME OF THE RESPONDENT IS HEREBY CORRECTED TO CONFORM WITH
THE EVIDENCE (G.C. EXHIBIT NO. 2). THE ORIGINAL CERTIFICATION WAS NOT
PLACED IN EVIDENCE AND THEREFORE IT IS UNCLEAR WHETHER THE NAME OF THE
AGENCY IN THIS PARTICULAR UNIT WAS OFFICIALLY CHARGED IN 1972 BY THE
ISSUANCE OF AN AMENDED CERTIFICATION. AS A RESULT OF A REORGANIZATION
IN 1978, HOWEVER, RESPONDENT NOW INTENDS TO FILE AN AMENDMENT OF
CERTIFICATION PETITION TO IDENTIFY THE 1947TH ADMINISTRATIVE SUPPORT
GROUP AS THE SUCCESSOR ORGANIZATION.
/4/ I FIND NO MERIT IN THE GENERAL COUNSEL'S CONTENTION THAT AT A
MARCH 17 MEETING BETWEEN THE PARTIES, SMALL SPECIFICALLY INFORMED
ALLISON THAT THE UNION'S INFORMATION REQUEST WAS ALSO BASED UPON AFM
26-1. SMALL'S TESTIMONY WAS UNPERSUASIVE (TR. 83) AND CANNOT BE
CREDITED OVER THAT OF ALLISON WHO ONLY RECALLED THAT THE SUBJECT CAME
UPON A DIFFERENT CONTEXT. I FURTHER NOTE THAT ALLISON, WHO WAS VERY
PRECISE AND DEMONSTRATED AN EXCELLENT MEMORY FOR SMALL DETAILS, DID NOT
EVEN REFERENCE AFM 26-1 IN HIS MARCH 26 "FINAL DECISION" WHICH WAS
ISSUED SHORTLY AFTER THIS MEETING. CROSS-EXAMINATION OF SMALL REVEALED
CONFUSION ON HIS PART AS TO WHETHER HE WAS REFERRING TO A PRE-JANUARY 10
MEETING OR THE MARCH 17 MEETING.
/5/ FOR THE PURPOSE OF DISCUSSING THIS ISSUE, IT IS ASSUMED THAT
ARTICLE 17, SECTION 2 IS LAWFUL AND ENFORCEABLE.
/6/ 5 U.S.C. 7116(A)(1).
/7/ 5 U.S.C. 7116(A)(5).
/8/ EO 11491, SECS. 19(A)(1), (6).
/9/ NLRA SECS. 8(A)(1), (5), 29 U.S.C. 158(A)(1), (5).
/10/ 5 U.S.C. 7116(A)(8).
/11/ DEPARTMENT OF JUSTICE, INS, A/SLMR NO. 902(1977).
/12/ IRS, JACKSONVILLE DISTRICT, JACKSONVILLE, FL, 1 FLRA NO.
35(1979); IRS, FRESNO SERVICE CENTER, A/SLMR NO. 1119(1978), APPEAL
DENIED, FLRC NO. 78A-139, 1 FLRA NO. 29.
/13/ NLRB V. TRUITT, 351 U.S. 149, 76 S.CT. 753, 100 L.ED.
1027(1956); NLRB V. WHITIN MACHINE WORKS, 217 F.2D 593(4TH CIR. 1954).
/14/ 385 U.S. 432, 87 S.CT. 565, 17 L.ED.2D 495(1967).
/15/ EMERYVILLE RESEARCH CENTER, 441 F.2D 880, 883(9TH CIR. 1971).
/16/ CURTISS-WRIGHT CORP., WRIGHT AERO. DIV. V. NLRB, 347 F.2D 61,
69(3D CIR. 1965).
/17/ J. I. CASE V. NLRB, 253 F.2D 149(7TH CIR. 1958); NLRB V. ITEM
CO., 220 F.2D 956(5TH CIR. 1955), CERT. DENIED, 352 U.S. 917; NLRB V.
WHITIN MACHINE WORKS, SUPRA; NLRB V. YAWMAN & ERBE MFG., 187 F.2D
947(2D CIR. 1951).
/18/ PRUDENTIAL INSURANCE CO. V. NLRB, 412 F.2D 77, 84(2ND CIR.),
CERT. DENIED, 396 U.S. 928, 90 S.CT. 263.
/19/ SAN DIEGO NEWSPAPER GUILD V. NLRB, 548 F.2D 863(9TH CIR. 1977);
SOUTHWESTERN BELL TELEPHONE CO., 173 NLRB NO. 29; 69 L.R.R.M.
1251(1968).
/20/ IN SOUTHWESTERN BELL, SUPRA, THE UNION SOUGHT CONTRACTING OUT
COST DATA IN CONNECTION WITH SPECIFIC GRIEVANCES AND PURSUANT TO
SPECIFIED CONTRACT ARTICLES. THE BOARD CONSIDERED ALL THE CIRCUMSTANCES
AND DISMISSED THE COMPLAINT, FINDING THAT THERE WAS NO PROBABILITY OF
RELEVANCE OF THE INFORMATION TO THE CONTRACT ARTICLES RELIED UPON AND
THAT THE UNION FAILED TO DEMONSTRATE THE RELEVANCY OF THE COST DATA.
/21/ FIBREBOARD PAPER PRODUCTS CORP. V. NLRB, 379 U.S. 203, 85 S.CT.
398, 13 L.ED.2D 233(1964); WESTINGHOUSE ELECTRIC CORP., 150 NLRB NO.
136(1965).
/22/ 5 U.S.C. 7106 PROVIDES IN PERTINENT PART THAT:
. . . NOTHING IN THIS CHAPTER SHALL AFFECT THE AUTHORITY OF ANY
MANAGEMENT OFFICIAL OF ANY
AGENCY . . . (2) IN ACCORDANCE WITH APPLICABLE LAWS . . . (B) TO
ASSIGN WORK, TO MAKE
DETERMINATIONS WITH RESPECT TO CONTRACTING OUT, AND TO DETERMINE THE
PERSONNEL BY WHICH AGENCY
OPERATIONS SHALL BE CONDUCTED . . .
/23/ IN ANACONDA THE BOARD DID NOT FIND A VIOLATION WHERE THE
EMPLOYER HAD REFUSED TO PROVIDE THE UNION WITH INFORMATION REQUESTED IN
CONNECTION WITH A SPECIFIC GRIEVANCE WHICH HAD BEEN RESOLVED EVEN THOUGH
THE INFORMATION MIGHT HAVE BEEN OTHERWISE RELEVANT TO THE ADMINISTRATION
OF THE AGREEMENT. IN THIS REGARD THE MAJORITY STATED THAT:
ASSUMING, ARGUENDO, THAT THE POINT INFORMATION COULD BE GENERALLY
RELEVANT TO THE
ADMINISTRATION OF THE AGREEMENT, THE PROBLEM POSED BY THIS CASE IS
THAT THE UNION ITSELF
LIMITED THE REQUEST FOR INFORMATION TO A SPECIFIC PURPOSE. . . . AT
NO TIME DID THE UNION
ACKNOWLEDGE THAT THE POINT SYSTEM HAD ANY BEARING ON ITS
ADMINISTRATION OF THE CONTRACT, AND
INDEED, REJECTED RESPONDENT'S EFFORTS TO INCORPORATE THE POINT SYSTEM
INTO THE BARGAINING
PROCESS. . . . UNDER THESE CIRCUMSTANCES WE DO NOT BELIEVE THAT IT
WOULD BE APPROPRIATE FOR
US TO HOLD THAT THE RESPONDENT UNLAWFULLY REFUSED TO BARGAIN IN GOOD
FAITH WITH THE UNION BY
DENYING THE UNION'S REQUEST FOR INFORMATION WITH RESPECT TO A
GRIEVANCE WHICH HAS BECOME
DEFUNCT . . . PRIOR TO THE UNION'S DEMAND FOR THE INFORMATION. 57
LRRM AT 1003, N. 2.
/24/ THE SPECIFIC COMPLAINT POINTED TO BY THE UNION AS HAVING BEEN
RECEIVED ABOUT CONTRACTING OUT HAD NOTHING TO DO WITH THE DISPLACEMENT
OF FEDERAL EMPLOYEES AND, THEREFORE, ARTICLE 17, SECTION 2, OF THE
AGREEMENT WAS INAPPLICABLE. ONE RELATED TO THE CONTRACTING OUT OF A
PROJECT FOR NEW WORK WHICH HAD NOT BEEN UNDERTAKEN BY HIS WORK UNIT BUT
WHICH, MR. SMALL FELT, WAS WITHIN THE CAPABILITY OF HIS ORGANIZATION TO
PERFORM. THUS, IT INVOLVED WORK ABOVE AND BEYOND THAT BEING PERFORMED
IN THE UNIT. THE SECOND INVOLVED AN ALLEGED COMPLAINT BY A SECRETARY
THAT SHE WAS DOING TYPING WORK FOR A CONTRACTOR (TR. 83-86, 88).
/25/ THE UNION'S REQUEST FOR A LIST OF CONTRACTS WHICH "HAD BEEN LET"
NECESSARILY INCLUDES ALL CONTRACTS REGARDLESS OF IMPACT UPON UNIT
EMPLOYEES.
/26/ THE USE OF THE PHRASE "OR WHICH MAY IMPACT" IS SUPERFLUOUS SINCE
SUCH CONTRACTS (IF THERE WERE ANY) NECESSARILY WOULD BE INCLUDED ON THE
LIST OF ALL CONTRACTS WHICH HAD BEEN LET.
/27/ TO THE EXTENT THAT THE UNION'S REQUEST REQUIRES THE FURNISHING
OF CONTRACTS LET IN THE PAST, I WOULD CONCLUDE THAT SUCH DATA IS NOT
REASONABLY AVAILABLE. WITH RESPECT TO FUTURE CONTRACTS, HOWEVER, I AM
NOT PERSUADED THAT IT WOULD BE AN ONEROUS BURDEN FOR THE AGENCY TO
PROVIDE THE INFORMATION REQUESTED. IN VIEW OF MY DECISION HEREIN,
HOWEVER, I DO NOT REACH THE QUESTION PRESENTED BY THE FACT THAT THE
RESPONDENT DOES NOT PRESENTLY HAVE THE INFORMATION IN THE PRECISE FORM
REQUESTED BY THE UNION.
/28/ THE COURT ALSO NOTED THAT THE UNION "WAS ACTUALLY PREPARING FOR
NEGOTIATIONS" 41 LRRM 2679, 2684.
/29/ NOR DO I WISH TO SUGGEST THAT A UNION CLAIM OF ENTITLEMENT FOR
"BARGAINING PURPOSES" WOULD BE SUFFICIENT IN THE CIRCUMSTANCES OF THIS
CASE.