[ v14 p302 ]
14:0302(55)NG
The decision of the Authority follows:
14 FLRA No. 55
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2736
Union
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS 379TH COMBAT
SUPPORT GROUP (SAC), WURTSMITH
AIR FORCE BASE, MICHIGAN
Agency
Case No. O-NG-471
9 FLRA 733
DECISION AND ORDER ON REMAND
On August 19, 1983, the United States Court of Appeals for the
District of Columbia Circuit remanded this case to the Authority for
further consideration of its negotiability determination with respect to
certain disputed language sought to be included in a bargaining
agreement between the parties. American Federation of Government
Employees, Local 2736 v. Federal Labor Relations Authority, 715 F.2d 627
(D.C. Cir. 1983).
The Authority had dismissed the Union's appeal finding that it was
improperly before the Authority as a negotiability issue to be resolved
pursuant to section 7117 of the Statute but should have either been
filed under the unfair labor practice procedures of the Statute or
processed through the parties' contractual grievance procedure. In this
regard, the Agency had asserted that the Union waived its right to
negotiate the matters at issue since the local parties reached agreement
on mutually acceptable language regarding the matters covered by the
proposals contained in the Union's appeal to the Authority; such
language was incorporated in the local agreement which was executed
prior to the Union's appeal; and the parties' contractual reopener
clause, relied upon by the Union, was inapplicable based upon factual
circumstances surrounding the negotiation of the local agreement.
American Federation of Government Employees, AFL-CIO, Local 2736 and
Department of the Air Force, Headquarters, 379th Combat Support Group
(SAC), Wurtsmith Air Force Base, Michigan, 9 FLRA 733 (1982).
On appeal, the Court held that "the Authority's decision that both
negotiability and factual issues be determined in an unfair labor
practice or contractual grievance hearing contravenes the clear
statutory mandate of Section 7117(c) that negotiability disputes be
processed as expeditiously as is practicable." It therefore vacated the
Authority's decision and remanded the case to the Authority for further
proceedings consistent with the Court's Opinion. /1/ Therefore, the
Authority will now resolve the merits of the negotiability issues raised
by the Union.
Proposal No. 1
A. Any cost study used as justification for a decision to
contract-out must have the same scope of work for both in-house
and contracting-out estimates.
Proposal No. 2
B. Any in-house estimates on a cost study used as
justification for a decision to contract-out must be based on the
most efficient and cost effective organization for in-house
performance.
In agreement with the Agency, the Authority concludes that Proposals
1 and 2 would directly interfere with management's right under section
7106(a)(2)(B) of the Statute "to make determinations with respect to
contracting out." In this regard, the right of management officials
under section 7106(a)(2)(B) to make determinations with respect to
contracting out encompasses not only the right to take such action but
also the right to engage in preliminary discussion and deliberation
concerning the relevant factors upon which determinations will be made.
National Federation of Federal Employees, Local 1167 and Department of
the Air Force, 31st Combat Support Group (TAC), Homestead Air Force
Base, Florida, 6 FLRA 574 (1981), affirmed sub nom. National Federation
of Federal Employees, Local 1167 v. Federal Labor Relations Authority,
681 F.2d 886 (D.C. Cir. 1982). Proposals 1 and 2 however, would
interfere with this deliberative process by prescribing standards to be
used in evaluating some of the factors upon which a contracting out
determination could be based. That is, Proposals 1 and 2 would
substantively restrict how a cost study used in determining whether to
contract out could be conducted.
Finally, the Union's arguments that Proposals 1 and 2 are negotiable
because they merely reiterate restrictions contained in Office of
Management and Budget (OMB) Circular No. A-76 (Proposal 1) and Public
Law 96-342 (Proposal 2), cannot be sustained. In Homestead Air Force
Base, supra, a similar argument was proffered and rejected. In that
case the Authority noted that, as 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, no
provision could be negotiated which would preclude the exercise of a
management right. Hence, the Authority concluded, negotiation of an
independent contractual requirement limiting management's discretion
with respect to contracting out would go beyond mere recognition by the
parties in their collective bargaining agreement of external
limitations. It would, rather, impose substantive limitations in and of
itself on management's right to contract out. Therefore, based on the
foregoing, Proposals 1 and 2 herein, which also go beyond mere
recognition of external statutory or regulatory limitations by imposing
substantive limitations on management's right to contract out, are
outside the duty to bargain under the Statute. /2/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as to
Proposals 1 and 2 be, and it hereby is, dismissed.
Proposal No. 3
No contract award shall be made until all grievance procedures, up
to and including arbitration are exhausted in regard to any
contract provision pertaining to the impact and implementation of
a contracting-out decision.
The Agency essentially contends that Union Proposal 3 would impose so
lengthy a delay on the implementation of a contracting out decision as
to prevent the Agency from acting at all with regard to its rights:
Under section 7106(a)(1), "to determine . . . the organization, number
of employees, and internal security practices of the agency;" under
section 7106(a)(2)(A), "to hire, assign, direct, layoff . . .
employees;" under section 7106(a)(2)(B), "to assign work, to make
determinations with respect to contracting out, and to determine the
personnel by which agency operations shall be conducted;" and under
section 7106(a)(2)(D), "to take whatever actions may be necessary to
carry out the agency mission during emergencies." The Agency also
contends that this proposal would be inconsistent with the intent of
Congress as expressed in section 7101(b) that the Statute be interpreted
in a manner consistent with the requirement of an effective and
efficient government.
The Agency's contentions cannot be sustained. In this regard the
Agency provides no support whatsoever for the core of its contentions
which is that the grievance arbitration process would take so long to
complete that the basis upon which the original contracting out decision
had been made would become invalid resulting in the Agency being placed
in a constant "cycle of studying, deciding and justifying but never
implementing." /3/ (Further, nothing in the proposal would preclude the
Agency from taking necessary actions in an emergency situation.) Thus,
Union Proposal 3 is to the same effect as Union Proposal III in American
Federation of Government Employees, Local 547, AFL-CIO and Veterans
Administration Medical Center, Tampa, Florida, 4 FLRA 368 (1981),
enforced sub nom. Veterans Administration Medical Center, Tampa, Florida
v. Federal Labor Relations Authority, 675 F.2d 260 (11th Cir. 1982),
which provided that any personnel action which is the subject of a
grievance or arbitration would be stayed pending completion of such
litigation, and which the Authority held was a negotiable procedure
under section 7106(b)(2) of the Statute. /4/ See also American
Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air
Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2
FLRA 153 (1979), enforced sub nom. Department of Defense v. Federal
Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied
sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). For the reasons set forth
above, and as determined by the Authority in Veterans Administration
Medical Center, Tampa, Proposal 3 herein is negotiable. /5/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS AGREED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning Union Proposal
3. /6/ Issued, Washington, D.C., April 20, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ AFGE, Local 2736 v. FLRA, 715 F.2d 627 (D.C. Cir. 1983).
/2/ Accordingly, it is unnecessary to address the Agency's additional
contentions that Proposals 1 and 2 are inconsistent with management's
section 7106(a)(2)(B) right "to assign work" or with its section
7106(b)(1) right to determine the "methods, and means of performing
work" or that Proposal 2 is inconsistent with its section 7106(a)(1)
right to determine its "organization."
/3/ Agency brief at 22.
/4/ Section 7106(b)(2) provides as follows:
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 (.)
/5/ In deciding that Proposal 3 is negotiable, the Authority makes no
judgment as to its merits.
/6/ The Authority here decides only the negotiability issues
presented under section 7105(a)(2)(E) of the Statute. To the extent
that there are factual issues in dispute between the parties regarding
the duty to bargain in the specific circumstances of this case, these
issues may be raised in other appropriate proceedings.