National Federation of Federal Employees, Local 1167 (Union) and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida (Agency)
[ v06 p574 ]
06:0574(105)NG
The decision of the Authority follows:
6 FLRA No. 105
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1167
Union
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, 31ST COMBAT
SUPPORT GROUP (TAC)
HOMESTEAD AIR FORCE BASE, FLORIDA
Agency
Case No. O-NG-156
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7101-7135) (THE STATUTE). THE ISSUES PRESENTED ARE THE TIMELINESS OF
THE UNION'S RESPONSE TO THE AGENCY'S STATEMENT OF POSITION AND THE
NEGOTIABILITY OF SIX UNION PROPOSALS. /1/
THE AGENCY CLAIMS THAT THE UNION'S RESPONSE TO THE AGENCY'S STATEMENT
OF POSITION WAS NOT TIMELY FILED AND SHOULD NOT BE CONSIDERED BY THE
AUTHORITY. SPECIFICALLY, THE AGENCY ASSERTS THAT, AS EVIDENCED BY A
UNITED STATES POSTAL SERVICE RETURN RECEIPT, THE UNION RECEIVED THE
AGENCY'S STATEMENT OF POSITION ON NOVEMBER 21, 1979. PURSUANT TO
SECTION 7117(C)(4) OF THE STATUTE, THE UNION HAD 15 DAYS AFTER THE DATE
OF RECEIPT, OR UNTIL DECEMBER 6, 1979, TO FILE ITS RESPONSE. THE
UNION'S RESPONSE, HOWEVER, WAS NOT FILED WITH THE AUTHORITY UNTIL
DECEMBER 10, 1979. ACCORDINGLY, THE UNION'S RESPONSE WAS UNTIMELY AND
THE AUTHORITY HAS NOT CONSIDERED IT.
UNION PROPOSAL I
ARTICLE 12.1
IT SHALL BE THE POLICY OF THE EMPLOYER TO CONSULT OPENLY AND FULLY
WITH THE LABOR
ORGANIZATION REGARDING ANY REVIEW OF A FUNCTION FOR CONTRACTING OUT
WITHIN THE UNIT. THE
EMPLOYER AGREES THAT WORK SHALL NOT BE CONTRACTED OUT WHEN IT CAN BE
DEMONSTRATED THAT WORK
PERFORMED "IN-HOUSE" IS MORE ECONOMICALLY AND EFFECTIVELY PERFORMED.
"MILESTONE
CHARTS" RELATED TO REVIEW OR FEASIBILITY STUDIES FOR CONTRACTING OUT
OF WORK WILL BE MADE
AVAILABLE TO THE LABOR ORGANIZATION AS ACTIONS ARE TAKEN IN
ACCORDANCE WITH SUCH CHARTS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTION OF THIS
UNION PROPOSAL IS EXCLUDED FROM THE DUTY TO BARGAIN BY REASON OF BEING
INCONSISTENT WITH SECTION 7106(A)(2)(B) OF THE STATUTE, AS ALLEGED BY
THE AGENCY. /2/
OPINION
CONCLUSION AND ORDER: THE UNDERSCORED PORTION OF THE PROPOSAL IS
INCONSISTENT WITH SECTION 7106(A)(2)(B) OF THE STATUTE AND THEREFORE IS
NOT WITHIN THE DUTY TO BARGAIN. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
IT IS ORDERED THAT THE PETITION FOR REVIEW OF THE UNDERSCORED PORTION OF
THE PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
REASONS: THE DISPUTED PART OF THE UNION'S PROPOSAL WOULD, FIRST,
PREVENT THE AGENCY FROM CONTRACTING OUT FOR SERVICES UNDER CERTAIN
CONDITIONS AND, SECOND, REQUIRE THE AGENCY TO MAKE AVAILABLE TO THE
UNION CERTAIN "MILESTONE CHARTS" USED BY MANAGEMENT IN DECIDING WHETHER
TO CONTRACT OUT. THE AGENCY CONTENDS THAT THE PROPOSAL IMPROPERLY
INTERFERES WITH ITS RIGHT UNDER SECTION 7106(A)(2)(B) OF THE STATUTE TO
MAKE DETERMINATIONS WITH RESPECT TO CONTRACTING OUT. THE UNION ARGUES
THAT THE PROPOSAL CONSTITUTES A PROCEDURE WHICH IS NEGOTIABLE UNDER
SECTION 7106(B)(2) OF THE STATUTE. /3/
A PROPOSED PROCEDURE WHICH WOULD PREVENT THE AGENCY FROM ACTING AT
ALL WITH RESPECT TO A MANAGEMENT RIGHT IS NOT WITHIN THE DUTY TO
BARGAIN. SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE,
FORT DIX, NEW JERSEY, 2 FLRA NO. 16 (1979) AT 3, ENFORCED SUB NOM.
DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D .
. . (D.C. CIR. NO. 80-1119, JULY 2, 1981). SECTION 7106(A)(2)(B) OF THE
STATUTE RESERVES TO MANAGEMENT THE RIGHT TO MAKE DETERMINATIONS WITH
RESPECT TO CONTRACTING OUT. ON ITS FACE, THE FIRST UNDERSCORED SENTENCE
OF THE UNION'S PROPOSAL WOULD PREVENT THE AGENCY FROM CONTRACTING OUT
WORK "WHEN IT CAN BE DEMONSTRATED THAT WORK PERFORMED "'IN-HOUSE'" IS
MORE ECONOMICALLY AND EFFECTIVELY PERFORMED." THUS, UNDER THAT
PRESCRIBED CONDITION, THE PROPOSAL WOULD PREVENT THE AGENCY FROM ACTING
AT ALL WITH REGARD TO CONTRACTING OUT. ACCORDINGLY, THIS PART OF THE
PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN.
THE UNION'S ARGUMENT THAT THIS PART OF THE PROPOSAL IS NEGOTIABLE IN
THAT IT MERELY REITERATES THE RESTRICTIONS CONTAINED IN OFFICE OF
MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-76, WHICH PRESCRIBES GENERAL
POLICIES FOR CONTRACTING OUT, CANNOT BE SUSTAINED. ASSUMING, ARGUENDO,
THAT THE PROPOSAL ACCURATELY REFLECTS THE PROVISIONS OF THE OMB
CIRCULAR, SUCH LIMITATIONS ON THE EXERCISE OF MANAGEMENT'S STATUTORY
RIGHT TO CONTRACT OUT ARE NOT APPROPRIATE FOR INCLUSION IN A COLLECTIVE
BARGAINING AGREEMENT. IN THIS REGARD, WHILE THE OMB CIRCULAR MIGHT
PLACE LIMITATIONS ON MANAGEMENT'S DISCRETION, THE STATUTE PRECLUDES THE
NEGOTIATION OF CONTRACTUAL LIMITATIONS ON MANAGEMENT'S RIGHTS. THUS,
SECTION 7106(A) OF THE STATUTE PROVIDES THAT "NOTHING IN THIS CHAPTER
SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL" TO EXERCISE THE
RIGHTS ENUMERATED THEREIN. THEREFORE, NO PROVISION COULD BE NEGOTIATED
WHICH WOULD PRECLUDE THE EXERCISE OF A MANAGEMENT RIGHT. /4/
INCORPORATION OF SPECIFIC CONTRACTUAL TERMS, SUCH AS THOSE PROPOSED
HERE, WOULD REQUIRE MANAGEMENT TO COMPLY WITH THOSE TERMS, REGARDLESS OF
WHETHER OMB SUBSEQUENTLY REVISED OR ELIMINATED THE DIRECTIVES/CIRCULARS
FROM WHICH THEY WERE TAKEN. THUS, THE PROPOSAL WOULD IMPOSE AN
INDEPENDENT CONTRACTUAL REQUIREMENT UPON MANGEMENT'S DISCRETION WITH
RESPECT TO CONTRACTING OUT AND HENCE WOULD INTERFERE WITH MANAGEMENT'S
RIGHTS UNDER THE STATUTE IN THIS REGARD. IN OTHER WORDS, THE PROPOSAL
HERE GOES BEYOND CONTRACTUAL RECOGNITION OF ANY EXTERNAL LIMITATIONS AND
IMPOSES SUBSTANTIVE LIMITATIONS IN AND OF ITSELF. CONSEQUENTLY, THE
MERE FACT THAT THE PROPOSAL HERE MIGHT REFLECT THE CURRENT PROVISIONS OF
AN OMB CIRCULAR DOES NOT MAKE IT NEGOTIABLE. THEREFORE, IT IS
INCONSISTENT WITH SECTION 7106(A)(2)(B) OF THE STATUTE.
THIS PROPOSAL IS TO BE DISTINGUISHED FROM ONE WHICH REQUIRES THE
AGENCY TO ACT IN ACCORDANCE WITH WHATEVER APPLICABLE OMB
DIRECTIVES/CIRCULARS MAY BE EXTANT AT THE TIME THE AGENCY IS EXERCISING
ITS RIGHT TO CONTRACT OUT. SUCH A PROPOSAL WOULD ONLY REQUIRE THAT WHEN
MANAGEMENT ACTS, IT DOES SO IN ACCORDANCE WITH APPLICABLE OMB DIRECTIVES
EXISTING AT THE TIME.
TURNING TO THE LAST UNDERSCORED SENTENCE OF THE PROPOSAL WHICH WOULD
REQUIRE THE AGENCY TO MAKE AVAILABLE TO THE UNION "MILESTONE CHARTS,"
THE AGENCY HAS EXPLAINED THAT SUCH CHARTS ARE INTERNAL MANAGEMENT
RECOMMENDATIONS, DEVELOPED FROM FEASIBILITY STUDIES, USED BY MANAGEMENT
OFFICIALS IN DETERMINING WHETHER TO CONTRACT OUT. SINCE THIS
EXPLANATION IS UNCONTROVERTED, IT IS ADOPTED FOR PURPOSES OF THIS
DECISION. IN THESE CIRCUMSTANCES, THE "MILESTONE CHARTS" CONSTITUTE AN
INTEGRAL PART OF MANAGEMENT'S DELIBERATIONS CONCERNING THE RELEVANT
FACTORS UPON WHICH A DETERMINATION WHETHER TO CONTRACT OUT WILL BE MADE.
THE APPLICABLE LEGISLATIVE HISTORY DEMONSTRATES THAT CONGRESS ENACTED
SECTION 7106 IN FURTHERANCE OF ITS PURPOSE AND INTENT TO "GIVE
MANAGEMENT THE POWER TO MANAGE AND THE FLEXIBILITY THAT IT NEEDS." /5/
THUS, THE RIGHT OF MANAGEMENT OFFICIALS UNDER SECTION 7106(A)(2)(B) OF
THE STATUTE TO MAKE DETERMINATIONS WITH RESPECT TO CONTRACTING OUT
ENCOMPASSES NOT ONLY THE RIGHT TO ACT IN THIS REGARD BUT ALSO THE RIGHT
TO DISCUSS AND DELIBERATE CONCERNING THE RELEVANT FACTORS UPON WHICH
SUCH A DETERMINATION WILL BE MADE. SINCE THE "MILESTONE CHARTS" IN
QUESTION ARE AN ESSENTIAL ELEMENT IN MANAGEMENT'S INTERNAL DELIBERATIVE
PROCESS, THE UNION PROPOSAL IS NOT PROCEDURAL IN NATURE; RATHER IT
DIRECTLY AFFECTS THE EXERCISE OF MANAGEMENT'S RIGHT UNDER SECTION
7106(A)(2)(B) TO MAKE DETERMINATIONS WITH RESPECT TO CONTRACTING OUT.
THUS, THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN. /6/
UNION PROPOSAL 2
ARTICLE 12.2
IN ACCORDANCE WITH OFFICE OF FEDERAL PROCUREMENT POLICY CIRCULAR
A-76, AND AIR FORCE MANUAL
26-1 POLICIES ESTABLISHED THEREIN SHALL NOT BE USED:
A. AS AUTHORITY TO ENTER INTO CONTRACTS IF SUCH AUTHORITY DOES NOT
OTHERWISE EXIST, NOR
WILL IT BE USED TO JUSTIFY DEPARTURE FROM ANY LAW OR REGULATION,
INCLUDING REGULATIONS OF THE
OFFICE OF PERSONNEL MANAGEMENT OR OTHER APPROPRIATE AUTHORITY, NOR
WILL IT BE USED FOR THE
PURPOSE OF AVOIDING ESTABLISHED SALARY OR PERSONNEL LIMITATIONS.
B. TO CONTRACT OUT WORK THAT DEALS WITH PRODUCTS OR SERVICES WHICH
ARE PROVIDED TO THE
PUBLIC BY THE EMPLOYER.
C. TO CONTRACT OUT PRODUCTS OR SERVICES OBTAINED FROM OTHER FEDERAL
AGENCIES WHICH ARE
AUTHORIZED OR REQUIRED BY LAW TO FURNISH THEM.
QUESTION BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THIS PROPOSAL IS EXCLUDED FROM THE
DUTY TO BARGAIN BECAUSE IT IS INCONSISTENT WITH SECTION 7106(A)(2)(B) OF
THE STATUTE, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THIS PROPOSAL IS INCONSISTENT WITH SECTION
7106(A)(2)(B) OF THE STATUTE AND THEREFORE IS NOT WITHIN THE DUTY TO
BARGAIN. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
PETITION FOR REVIEW OF THIS PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
REASONS: ON ITS FACE, THIS PROPOSAL WOULD PREVENT THE AGENCY IN
CERTAIN CIRCUMSTANCES FROM EXERCISING ITS STATUTORY AUTHORITY UNDER
SECTION 7106(A)(2)(B) TO MAKE DETERMINATIONS WITH RESPECT TO CONTRACTING
OUT. THE UNION ASSERTS THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN
SINCE THE LIMITATIONS ON MANAGEMENT'S AUTHORITY CONTAINED IN THE
PROPOSAL REFLECT THE PROVISIONS OF OMB CIRCULAR A-76, WHICH ESTABLISHES
POLICIES FOR CONTRACTING OUT. HOWEVER, FOR THE REASONS SET FORTH IN THE
DISCUSSION OF UNION PROPOSAL 1, SUPRA, THE FACT THAT THE PROPOSAL MIGHT
REFLECT THE CURRENT PROVISIONS OF OMB CIRCULAR A-76 IS WITHOUT
CONTROLLING SIGNIFICANCE HEREIN. SINCE, AS NOTED ABOVE, THE PROPOSAL
WOULD, PURSUANT TO A NEGOTIATED AGREEMENT, PREVENT THE AGENCY FROM
CONTRACTING OUT IN THE STATED CIRCUMSTANCES, IT IS INCONSISTENT WITH
SECTION 7106(A)(2)(B) WHICH RESERVES SUCH DETERMINATIONS TO MANAGEMENT.
ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE
DUTY TO BARGAIN MUST BE SUSTAINED.
UNION PROPOSAL 3
ARTICLE 12.3
THE LABOR ORGANIZATION SHALL BE FURNISHED DATES AND TIMES OF THE
PRE-BID AND BID-OPENING
CONFERENCES AND SHALL HAVE THE RIGHT TO HAVE TWO LABOR ORGANIZATION
REPRESENTATIVES PRESENT AT
THE CONFERENCES. THE CONTRACT WILL NOT BE AWARDED FOR AT LEAST TEN
WORK DAYS FOLLOWING THE
BID OPENING CONFERENCE. (ONLY THE UNDERSCORED PORTION OF THE
PROPOSAL IS IN DISPUTE.)
QUESTION BEFORE THE AUTHORITY
THE QUESTION PRESENTED IS WHETHER THE UNDERSCORED PORTION OF THIS
PROPOSAL IS WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE OR IS
EXCLUDED THEREFROM BY REASON OF BEING INCONSISTENT WITH SECTION
7106(A)(2)(B) OF THE STATUTE, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE UNDERSCORED PORTION OF THIS PROPOSAL IS
INCONSISTENT WITH SECTION 7106(A)(2)(B) OF THE STATUTE AND THEREFORE IS
NOT WITHIN THE DUTY TO BARGAIN. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
IT IS ORDERED THAT THE PETITION FOR REVIEW OF THE UNDERSCORED PORTION OF
THE PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
REASONS: THE AGENCY STATES THAT THE PRE-BID AND BID-OPENING
CONFERENCES ARE "WHOLLY MANAGEMENT RELATED MEETINGS AT WHICH THE
MANAGEMENT ASPECTS OF THE CONTRACTING OUT ISSUE ARE EITHER DISCUSSED OR
ACTED ON, AND WHICH OCCUR AFTER THE UNION HAS BEEN AFFORDED THE
OPPORTUNITY TO COMMENT ON THE CONTRACTING OUT PROPOSAL." SINCE THIS
EXPLANATION OF THE PURPOSE OF FUNCTION OF THESE CONFERENCES IS
UNCONTROVERTED, IT IS ADOPTED FOR PURPOSES OF THIS DECISION. AS NOTED
ABOVE, THE RIGHT OF MANAGEMENT OFFICIALS TO MAKE CONTRACTING OUT
DETERMINATIONS INCLUDES THE RIGHT TO DISCUSS AMONG THEMSELVES AND
DELIBERATE CONCERNING THE RELEVANT FACTORS UPON WHICH SUCH
DETERMINATIONS WILL BE BASED. THE CONFERENCES IN QUESTION CONSTITUTE AN
INTEGRAL PART OF THAT PROCESS.
THE PROPOSAL HERE BY ITS EXPRESS TERMS WOULD GUARANTEE THE UNION THE
RIGHT TO BE PRESENT AT THE CONFERENCES. THE AGENCY INTERPRETED THE
PROPOSAL, WHICH INTERPRETATION IS UNCONTROVERTED, AS PERMITTING THE
SUBMISSION OF UNION VIEWS ON TECHNICAL MATTERS RELATING TO THE BIDS.
SUCH INVOLVEMENT OF THE EXCLUSIVE REPRESENTATIVE IN THESE SESSIONS WHERE
AGENCY OFFICIALS ARE ENGAGED IN MANAGERIAL DELIBERATIONS AND DISCUSSIONS
AS PART OF THEIR DECISION-MAKING PROCESS, WOULD DIRECTLY INTERFERE WITH
MANAGEMENT'S RIGHTS UNDER THE STATUTE TO MAKE DETERMINATIONS WITH
RESPECT TO CONTRACTING OUT.
THIS PROPOSAL IS TO BE DISTINGUISHED FROM PROPOSALS WHICH WOULD
REQUIRE JOINT UNION-MANAGEMENT EFFORTS FOR PURPOSES WHICH WOULD NOT
INVOLVE THE EXCLUSIVE REPRESENTATIVE IN MANAGEMENT DELIBERATIONS AND
DISCUSSION AS PART OF DECISION-MAKING ON MATTERS COVERED BY SECTION
7106(A). IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1786 AND MARINE CORPS DEVELOPMENT AND EDUCATION COMMAND, QUANTICO,
VIRGINIA, 2 FLRA NO. 58(1980), FOR EXAMPLE, THE AUTHORITY HELD
NEGOTIABLE A PROPOSAL WHICH WOULD ESTABLISH A UNION RIGHT TO
REPRESENTATION ON WAGE SURVEY TEAMS WHICH GATHER DATA ON LOCAL
PREVAILING WAGES FOR USE IN DETERMINING THE PAY OF CERTAIN HOURLY-PAID
NONAPPROPRIATED FUND EMPLOYEES.
BASED ON THE FOREGOING, THE AGENCY'S ALLEGATION THAT THE UNDERSCORED
PORTION OF THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN IS SUSTAINED.
UNION PROPOSAL 4
ARTICLE 12.4
CONTRACTING OUT OF NORMAL SERVICES WILL BE LIMITED TO THOSE
POSITIONS/FUNCTIONS NOT DEEMED
MISSION/EMERGENCY ESSENTIAL BY HOMESTEAD AFB AND THE DEPT. OF THE AIR
FORCE.
THE EMPLOYER AGREES TO TAKE ALL POSSIBLE ACTIONS TO MINIMIZE THE
IMPACT ON EMPLOYEES WHEN
FUNCTIONS/POSITIONS ARE CONTRACTED OUT. AFFECTED EMPLOYEES WILL BE
REASSIGNED AND/OR
RETRAINED TO THE MAXIMUM EXTENT POSSIBLE. MAXIMUM RETENTION OF
CAREER EMPLOYEES SHALL BE
ACHIEVED BY CONSIDERING ATTRITION PATTERNS AND RESTRICTING NEW HIRES.
(ONLY THE UNDERSCORED
PORTIONS OF THIS PROPOSAL ARE IN DISPUTE.)
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS PRESENTED ARE WHETHER THE UNDERSCORED SENTENCES OF THE
UNION'S PROPOSAL ARE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE OR, AS
ALLEGED BY THE AGENCY, WHETHER THEY ARE EXCLUDED THEREFROM BY REASON OF
BEING INCONSISTENT WITH SECTIONS 7106(A)(2)(B) AND 7106(A)(2)(A),
RESPECTIVELY.
OPINION
CONCLUSION AND ORDER: THE FIRST SENTENCE OF THIS PROPOSAL IS
INCONSISTENT WITH SECTION 7106(A)(2)(B) OF THE STATUTE AND THEREFORE IS
NOT WITHIN THE DUTY TO BARGAIN. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
IT IS ORDERED THAT THE PETITION FOR REVIEW OF THE FIRST SENTENCE OF THE
PROPOSAL BE, AND IT HEREBY IS, DISMISSED. THE LAST SENTENCE OF THE
PROPOSAL, HOWEVER, CONCERNS AN APPROPRIATE ARRANGEMENT UNDER SECTION
7106(B)(3) OF THE STATUTE FOR EMPLOYEES ADVERSELY AFFECTED BY
MANAGEMENT'S EXERCISE OF ITS RIGHT TO CONTRACT OUT AND THEREFORE IS
WITHIN THE DUTY TO BARGAIN. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
THE PARTIES) BARGAIN CONCERNING THE LAST SENTENCE OF THE PROPOSAL. /7/
REASONS: THE FIRST SENTENCE OF THE PROPOSAL WOULD EXPRESSLY PROHIBIT
THE AGENCY FROM CONTRACTING OUT FOR NORMAL SERVICES WHICH ARE DEEMED
"MISSION/EMERGENCY ESSENTIAL." AS HAS ALREADY BEEN POINTED OUT, SECTION
7106(A)(2)(B) OF THE STATUTE RESERVES TO MANAGEMENT THE AUTHORITY TO
MAKE DETERMINATIONS WITH RESPECT TO CONTRACTING OUT. THUS, THE FIRST
SENTENCE OF THE PROPOSAL IS INCONSISTENT WITH SECTION 7106(A)(2)(B) AND
THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO
BARGAIN MUST BE SUSTAINED.
THE LAST SENTENCE OF THE UNION'S PROPOSAL SEEKS TO ACHIEVE MAXIMUM
RETENTION OF CAREER EMPLOYEES IN CONTRACTING OUT SITUATIONS BY REQUIRING
THE AGENCY TO CONSIDER "ATTRITION PATTERNS AND RESTRICTING NEW HIRES."
THE AGENCY HAS ALLEGED THAT THE PROPOSAL WOULD AFFECT ITS AUTHORITY
UNDER SECTION 7106(A)(2)(A) TO HIRE, LAYOFF, AND RETAIN EMPLOYEES /8/ BY
REQUIRING IT TO IMPOSE HIRING FREEZES BEFORE INSTITUTING REDUCTIONS IN
FORCE. THE UNION, HOWEVER, ARGUES THAT THE PROPOSAL CONSTITUTES AN
APPROPRIATE ARRANGEMENT FOR ADVERSELY AFFECTED EMPLOYEES WHICH,
PURSUANT
TO SECTION 7106(B)(3), IS WITHIN THE DUTY TO BARGAIN. /9/
THE AGENCY HAS MISINTERPRETED THE DISPUTED LANGUAGE. ON ITS FACE,
NOTHING IN THIS PART OF THE PROPOSAL WOULD REQUIRE THE AGENCY TO TAKE,
OR TO REFRAIN FROM TAKING, ANY ACTION WITH RESPECT TO THE RETENTION OF
AFFECTED EMPLOYEES. THE PROPOSAL WOULD ONLY REQUIRE AGENCY MANAGEMENT
TO CONSIDER ATTRITION PATTERNS AND TO CONSIDER THE RESTRICTING OF NEW
HIRES. THE DECISION AS TO WHICH EMPLOYEES SHALL BE RETAINED AND WHICH
SHALL BE SUBJECT TO LAYOFF IS RESERVED TO MANAGEMENT UNDER THE PROPOSAL.
SIMILARLY, UNDER THE PROPOSAL, MANAGEMENT WOULD NOT BE PROHIBITED FROM
HIRING NEW EMPLOYEES; RATHER MANAGEMENT WOULD RETAIN THE DISCRETION TO
DETERMINE WHETHER, WHEN, HOW MANY, AND WHO SHALL BE HIRED IN THE AGENCY.
THUS, THE PROPOSED LANGUAGE IS HORTATORY RATHER THAN MANDATORY AND DOES
NOT INTERFER WITH THE EXERCISE OF MANAGEMENT RIGHTS. SEE ASSOCIATION OF
CIVILIAN TECHNICIANS, DELAWARE CHAPTER AND NATIONAL GUARD BUREAU,
DELAWARE NATIONAL GUARD, 3 FLRA NO. 9(1980). BASED UPON THE FOREGOING,
THE LAST SENTENCE OF THE PROPOSAL IS NOT INCONSISTENT WITH MANAGEMENT'S
STATUTORY RIGHTS AND IS WITHIN THE DUTY TO BARGAIN UNDER SECTION
7106(B)(3) AS AN APPROPRIATE ARRANGEMENT FOR EMPLOYEES WHO WOULD BE
ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE OF ITS RIGHT UNDER SECTION
7106(A)(2)(B) TO CONTRACT OUT.
UNION PROPOSAL 5
ARTICLE 16.5
PROMOTION FACTORS-- DETERMINATION OF FACTORS, METHODS, AND FORMS TO
BE USED IN THE
EVALUATION, RANKING AND SELECTION OF CANDIDATES SHALL BE MADE THROUGH
NEGOTIATION BETWEEN THE
PARTIES; NO CHANGE SHALL BE MADE IN SUCH FACTORS, OR IN THE RELATIVE
WEIGHTS ASSIGNED TO
THEM, OR FORMS USED TO RECORD THEM, WITHOUT PRIOR NEGOTIATION BETWEEN
THE PARTIES.
QUESTION BEFORE THE AUTHORITY
THE DETERMINATIVE QUESTION IS WHETHER THE UNION'S PETITION FOR REVIEW
WITH RESPECT TO THIS PROPOSAL IS SUFFICIENTLY SPECIFIC AND DELIMITED IN
FORM AND CONTENT TO MEET THE AUTHORITY'S CONDITIONS FOR REVIEW.
OPINION
CONCLUSION AND ORDER: THIS PROPOSAL IS NOT SUFFICIENTLY SPECIFIC AND
DELIMITED IN FORM AND CONTENT TO MEET THE AUTHORITY'S CONDITIONS FOR
REVIEW. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
PETITION FOR REVIEW OF THE PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
REASONS: THIS PROPOSAL WHICH WOULD REQUIRE BARGAINING ABOUT FACTORS,
METHODS, AND FORMS TO BE USED IN THE EVALUATION, RANKING, AND SELECTION
OF CANDIDATES FOR PROMOTION, DOES NOT ATTEMPT TO SPECIFY PARTICULAR
FACTORS, METHODS, OR FORMS TO BE NEGOTIATED. IN THIS REGARD, THE
PETITION FOR REVIEW OF THIS PROPOSAL BEARS NO MATERIAL DIFFERENCE FROM
THE ONE WHICH WAS BEFORE THE AUTHORITY IN NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 66 AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, KANSAS CITY SERVICE CENTER, KANSAS CITY, MISSOURI, 2 FLRA NO.
40(1979) AND WAS HELD NOT TO MEET THE CONDITIONS FOR REVIEW PRESCRIBED
IN SECTION 7117(C) OF THE STATUTE AND PART 2424.1 OF THE AUTHORITY'S
RULES AND REGULATIONS.
IN THAT CASE, THE AUTHORITY DISMISSED THE UNION'S PETITION FOR REVIEW
OF A GENERAL PROPOSAL TO NEGOTIATE WEIGHTS WHICH WOULD BE APPLIED TO
EVALUATION FACTORS FOR PROMOTIONS. THE PROPOSAL THEREIN WAS NOT
SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM AND CONTENT FOR THE
AUTHORITY TO ISSUE A NEGOTIABILITY DECISION THEREON BECAUSE IT FAILED TO
SPECIFICALLY IDENTIFY THE WEIGHTS TO BE APPLIED TO THE EVALUATION
FACTORS. IN SO FINDING, THE AUTHORITY RELIED UPON ITS DECISION IN
ASSOCIATION OF CIVILIAN TECHNICIANS, ALABAMA ACT AND STATE OF ALABAMA
NATIONAL GUARD, 2 FLRA NO. 30(1979) IN WHICH IT STATED AT PAGE THREE
THAT IN RESOLVING NEGOTIABILITY DISPUTES, IT MUST MAKE "A RATIONAL
ANALYSIS AND CONCLUSION AS TO WHETHER A MATTER PROPOSED FOR NEGOTIATION
IS INCONSISTENT WITH ANY PARTICULAR FEDERAL LAW, GOVERNMENT-WIDE RULE OR
REGULATION, OR AGENCY RULE OR REGULATION FOR WHICH THERE IS A COMPELLING
NEED." INASMUCH AS THE PROPOSAL HERE IN DISPUTE DOES NOT SET FORTH
SUFFICIENT AND SPECIFIC INFORMATION SO AS TO ENABLE THE AUTHORITY TO
REACH SUCH A REASONED DECISION, THE PETITION FOR REVIEW OF THIS PROPOSAL
MUST BE DISMISSED. /10/
UNION PROPOSAL 6
ARTICLE XXIV - SAFETY AND HEALTH
24.4 - WHEN WINDS REACH HAZARDOUS VELOCITIES, LIGHTNING OCCURS, OR
SEVERE WEATHER
CONDITIONS EXIST, ALL OUTSIDE WORK BEING PERFORMED, UNLESS DEEMED AN
EMERGENCY SITUATION, WILL
BE TERMINATED UNTIL WEATHER CONDITIONS IMPROVE TO ALLOW THE WORK TO
BE RESUMED IN A SAFE
MANNER. EMPLOYEES WILL NOT BE REQUIRED TO WORK IN, OR, OR AROUND
AIRCRAFT OR EQUIPMENT NOT
COMPLETELY SHELTERED IN BUILDINGS OR HANGERS. IN ORDER NOT TO
COMPROMISE THE SAFETY OF THE
EMPLOYEE, EMPLOYEES WILL NOT BE DIRECTED TO PERFORM FLIGHT LINE
MAINTENANCE OPERATIONS DURING
LIGHTNING CONDITIONS. THE EMPLOYER WILL DEVELOP AND SET UP WARNING
PROCEDURES SO TIMELY
PRECAUTIONARY MEASURES WILL BE TAKEN WHEN WEATHER CONDITIONS WARRANT.
A COPY OF THESE
PROCEDURES WILL BE PROVIDED TO THE LABOR ORGANIZATION. NO EMPLOYEE,
WHEN REQUIRED TO WORK IN
AN AREA IDENTIFIED AS A POTENTIALLY HAZARDOUS AREA, OR AS A POOR
ENVIRONMENTAL AREA, SHALL BE
DIRECTED TO WORK ALONE. (ONLY THE UNDERSCORED SENTENCES OF THE
PROPOSAL ARE IN DISPUTE.)
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS PRESENTED ARE WHETHER THE UNDERSCORED PORTIONS OF THIS
PROPOSAL ARE WITHIN THE DUTY TO BARGAIN OR WHETHER THE FIRST UNDERSCORED
SENTENCE ("SHELTER CLAUSE") IS EXCLUDED THEREFROM BY REASON OF SECTION
7106(A)(2)(B) OF THE STATUTE AND WHETHER THE SECOND UNDERSCORED SENTENCE
("SOLITARY ASSIGNMENT CLAUSE") IS SIMILARLY EXCLUDED BY REASON OF
SECTION 7106(B)(1). /11/
OPINION
CONCLUSION AND ORDER: THE "SHELTER CLAUSE" AND THE "SOLITARY
ASSIGNMENT CLAUSE" OF THE PROPOSAL ARE, RESPECTIVELY, INCONSISTENT WITH
SECTIONS 7106(A)(2)(B) AND 7106(B)(1) OF THE STATUTE AND THEREFORE ARE
NOT WITHIN THE DUTY TO BARGAIN. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
IT IS ORDERED THAT THE PETITION FOR REVIEW OF THE UNDERSCORED PORTIONS
OF THIS PROPOSAL BE, AND IT HEREBY IS, DISMISSED.
REASONS: SECTION 7106 OF THE STATUTE SPECIFIES, IN SUBSECTION (A),
VARIOUS RIGHTS RESERVED TO AGENCY MANAGEMENT. SUBSECTION (B), HOWEVER,
PROVIDES THAT MANAGEMENT'S EXERCISE OF ANY RIGHTS CONTAINED IN
SUBSECTION (A) DOES NOT PRECLUDE NEGOTIATIONS ON THE PROCEDURES WHICH
MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING THOSE RIGHTS. THE
LEGISLATIVE HISTORY OF THE STATUTE REFLECTS THE INTENT, WITH REGARD TO
THE DUTY TO BARGAIN PROCEDURES, TO AUTHORIZE FULL NEGOTIATIONS ON SUCH
PROCEDURES UNLESS THE PROCEDURES WOULD PREVENT THE AGENCY FROM ACTING
AT
ALL. /12/
HEALTH AND SAFETY CONSIDERATIONS SUCH AS HAZARDOUS WEATHER CONDITIONS
MAY BE LEGITIMATE FACTORS WHICH MANAGEMENT MAY TAKE INTO ACCOUNT IN
ASSIGNING OUTSIDE WORK, HOWEVER, THE "SHELTER CLAUSE" PROPOSED BY THE
UNION HEREIN GOES BEYOND MERE CONSIDERATION OF THOSE FACTORS. AS
DRAFTED, IT WOULD ABSOLUTELY PROHIBIT MANAGEMENT FROM ASSIGNING
EMPLOYEES TO PERFORM CERTAIN WORK UNLESS "COMPLETELY SHELTERED." THUS,
THE AGENCY WOULD BE COMPLETELY PREVENTED FROM ASSIGNING WORK UNLESS A
PRECONDITION HAS BEEN MET. THE "SHELTER CLAUSE," THEREFORE, IS
INCONSISTENT WITH SECTION 7106(A)(2)(B) OF THE STATUTE AND IS NOT WITHIN
THE DUTY TO BARGAIN. SEE INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,
LOCAL F-61 AND PHILADELPHIA NAVAL SHIPYARD, 3 FLRA NO. 66(1980).
AS TO THE "SOLITARY ASSIGNMENT CLAUSE," IT WOULD REQUIRE THAT, IN THE
STATED CIRCUMSTANCES, NO EMPLOYEE COULD BE DIRECTED TO WORK ALONE. ON
ITS FACE, THEREFORE, THE PROPOSAL WOULD PRECLUDE MANAGEMENT FROM
ASSIGNING JUST ONE EMPLOYEE TO CERTAIN WORK SITUATIONS. THUS, AS
CLAIMED BY THE AGENCY, THE PROPOSAL WOULD IN THOSE SITUATIONS DIRECTLY
INTERFERE WITH ITS RIGHT UNDER SECTION 7106(B)(1) OF THE STATUTE TO
DETERMINE THE NUMBER OF EMPLOYEES ASSIGNED TO ANY WORK PROJECT OR TOUR
OF DUTY, AND TO NEGOTIATE SUCH A DETERMINATION ONLY IF IT SO CHOOSES.
ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THE "SOLITARY" ASSIGNMENT
CLAUSE" IS UNDER THESE CIRCUMSTANCES OUTSIDE THE DUTY TO BARGAIN MUST BE
SUSTAINED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 18, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
CERTIFICATE OF SERVICE
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED BELOW:
MR. JAMES M. PEIRCE
PRESIDENT
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1016 16TH STREET, N.W.
WASHINGTON, D.C. 20036
MR. DON A. DRESSER, CHIEF
LABOR RELATIONS DIVISION
DIRECTORATE OF CIVILIAN PERSONNEL
DEPARTMENT OF THE AIR FORCE
WASHINGTON, D.C. 20330
--------------- FOOTNOTES: ---------------
/1/ THE APPEAL AS ORIGINALLY FILED INCLUDED AN ADDITIONAL PROPOSAL
(DESIGNATED AS ARTICLE 30.1). SUBSEQUENTLY, THE UNION REQUESTED THAT
THE AUTHORITY PERMIT IT TO WITHDRAW ITS APPEAL CONCERNING THAT PROPOSAL.
THE UNION'S REQUEST IS HEREBY GRANTED.
/2/ SECTION 7106(A)(2)(B) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, 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(.)
/3/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION(.)
/4/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1968 AND DEPARTMENT OF TRANSPORTATION, SAINT LAWRENCE SEAWAY
DEVELOPMENT CORPORATION, MASSENA, NEW YORK, 5 FLRA NO. 14(1981), AT 10.
/5/ STATEMENT OF REPRESENTATIVE UDALL, 124 CONG.REC.H 9633 (DAILY ED.
SEPT. 13, 1978) CITED IN DEPARTMENT OF DEFENSE V. FEDERAL LABOR
RELATIONS AUTHORITY, SUPRA, SLIP OP. AT 41.
/6/ THIS DECISION SHOULD NOT, OF COURSE, BE CONSTRUED AS AFFECTING
THE UNION'S RIGHT, PURSUANT TO SECTION 7114(B)(4) OF THE STATUTE, TO
OBTAIN UPON REQUEST APPROPRIATE DATA " . . . WHICH IS REASONABLY
AVAILABLE AND NECESSARY FOR FULL AND PROPER DISCUSSION, UNDERSTANDING,
AND NEGOTIATION OF SUBJECTS WITHIN THE SCOPE OF COLLECTIVE
BARGAINING(.)"
/7/ IN DECIDING THAT THE LAST SENTENCE OF THE PROPOSAL IS WITHIN THE
DUTY TO BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS
MERITS.
/8/ SECTION 7106(A)(2)(A) PROVIDES AS FOLLOWS:
SECTION 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
. . . .
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,
REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES(.)
/9/ SECTION 7106(B)(3) PROVIDES AS FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/10/ FOR EXAMPLES OF SPECIFIC PROPOSALS IN THE GENERAL SUBJECT AREA
ADDRESSED BY THE PROPOSAL HEREIN WHICH WERE FOUND TO BE WITHIN THE DUTY
TO BARGAIN, SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 331 AND VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, 2
FLRA NO. 59(1979), AND NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT
OF HEALTH AND HUMAN SERVICES, REGION X, SEATTLE, WASHINGTON, 5 FLRA NO.
93(1981).
/11/ SECTION 7106(B)(1) PROVIDES AS FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR
POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE
TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK.)
/12/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT
DIX, NEW JERSEY, 2 FLRA NO. 16(1979), ENFORCED SUB NOM. DEPARTMENT OF
DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D . . . (D.C.
CIR. NO. 80-1119, JULY 2, 1981).