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34 FLRA No. 5

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL EDUCATION ASSOCIATION

FORT BRAGG ASSOCIATION OF EDUCATORS

and

U.S. DEPARTMENT OF THE ARMY

FORT BRAGG SCHOOLS

0-NG-1405

(30 FLRA 508)

DECISION AND ORDER ON NEGOTIABILITY ISSUE ON REMAND

December 14, 1989

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. See Fort Bragg Association of Educators, NEA v. FLRA, 870 F.2d 698 (D.C. Cir. 1989). In that decision, the court reversed the Authority's finding that Proposal 2, at issue in Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508 (1987) (Fort Bragg), was nonnegotiable. Accordingly, the D.C. Circuit remanded the case to the Authority, with instructions to enter an appropriate bargaining order.

II. Background

On December 21, 1987, the Authority issued its decision and order on negotiability issues in Fort Bragg. Among the collective bargaining proposals at issue in Fort Bragg was one (identified as "Proposal 2") providing that "[u]nit employees will not be requested or required to enter into personal service contracts as a condition of their employment." 30 FLRA at 510.

The Authority based its finding that Proposal 2 was nonnegotiable on its prior decision in West Point Elementary School Teachers Association, NEA and the United States Military Academy Elementary School, West Point, New York, 29 FLRA 1531 (1987) (U.S. Military Academy). In U.S. Military Academy, the Authority found an identical proposal to be outside the duty to bargain. Consequently, the Authority determined that Proposal 2 in Fort Bragg was inconsistent with the right of the Department of the Army, Fort Bragg Schools (the Agency) to hire under section 7106(a)(2)(A) of the Federal Service Labor-Management Relations Statute (the Statute).

The union involved in the U.S. Military Academy case petitioned the United States Court of Appeals for the Second Circuit for review of that decision. The Second Circuit held that the agency's use of personal service contracts in hiring civilian teachers violated a Federal Acquisition Regulation and did not have the required specific statutory authorization. The Second Circuit, therefore, granted the union's petition for review of its proposal barring use of personal service contracts. West Point Elementary School Teachers Association v. FLRA, 855 F.2d 936 (2d Cir. l988) (West Point).

In its review of the appeal by the Fort Bragg Association of Educators, NEA (the Union) in this case, the D.C. Circuit found to be persuasive the holding of the Second Circuit in West Point that use of personal service contracts violated a Federal Acquisition Regulation. Fort Bragg Association of Educators, NEA v. FLRA, 870 F.2d at 699. The D.C. Circuit also determined that the Union's proposal imposed no substantive limitations on management's right to hire under section 7106(a)(2)(A) of the Statute. Rather, the D.C. Circuit decided that Proposal 2 constituted a negotiable procedure under section 7106(b)(2) because the personal service contracts sought to be banned "are merely a means of recording the terms of employment." Id. at 704. Accordingly, the D.C. Circuit reversed the Authority's decision and remanded the case for entry of a bargaining order consistent with the court's reversal.

III. Analysis and Conclusion

Based on the rationale and conclusions of the United States Court of Appeals for the District of Columbia Circuit, we find that the proposal does not interfere with the Agency's right to hire under section 7106(a)(2)(A). Rather, the proposal, in barring the use of personal service contracts, concerns only the Agency's method of recording the terms and conditions of employment applicable to the employees it decides to hire. The proposal, therefore, constitutes a negotiable procedure within the meaning of section 7106(b)(2) by which the Agency exercises its authority under section 7106(a)(2)(A) to hire and is within the Agency's duty to bargain. Accordingly, consistent with the court's decision in Fort Bragg Association of Educators, NEA v. FLRA, we will order the Agency to bargain over Proposal 2.

IV. Order

The Agency must negotiate on request (or as otherwise agreed to by the parties) concerning Proposal 2, providing that "[u]nit employees will not be requested or required to enter into personal service contracts as a condition of their employment." 30 FLRA at 510.^(*)

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ In finding Proposal 2 to be negotiable, we make no judgment as to its merits.

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