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10:0003(1)NG
The decision of the Authority follows:
10 FLRA No. 1
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO,
NATIONAL COUNCIL OF EEOC LOCALS
Union
and
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Agency
Case No. O-NG-314
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND RAISES ISSUES
CONCERNING THE NEGOTIABILITY OF THREE UNION PROPOSALS. UPON
CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
UNION PROPOSAL 1
SECTION I-- THE EMPLOYER AGREES TO COMPLY WITH OMB CIRCULAR A-76, AND
OTHER APPLICABLE LAWS
AND REGULATIONS CONCERNING CONTRACTING-OUT.
IN AGREEMENT WITH THE UNION, THE AUTHORITY FINDS THIS PROPOSAL IS NOT
INCONSISTENT WITH MANAGEMENT'S RIGHT TO "MAKE DETERMINATIONS WITH
RESPECT TO CONTRACTING OUT" UNDER SECTION 7106(A)(2)(B) OF THE STATUTE.
THE PROPOSAL WOULD REQUIRE MANAGEMENT TO EXERCISE ITS RIGHT TO MAKE
CONTRACTING OUT DETERMINATIONS IN ACCORDANCE WITH WHATEVER APPLICABLE
LAWS AND REGULATIONS EXIST AT THE TIME OF SUCH ACTION. HENCE, IT WOULD
CONTRACTUALLY RECOGNIZE EXTERNAL LIMITATIONS ON MANAGEMENT'S RIGHT BUT
WOULD NOT ESTABLISH, EITHER EXPRESSLY OR BY INCORPORATION, ANY
PARTICULAR SUBSTANTIVE LIMITATIONS ON MANAGEMENT.
THUS, THIS PROPOSAL IS DISTINGUISHABLE FROM PROPOSAL 1 WHICH WAS HELD
NONNEGOTIABLE IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167
AND DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP
(TAC), HOMESTEAD AIR FORCE BASE, FLORIDA, 6 FLRA NO. 105(1981), AFFIRMED
AS TO OTHER MATTERS SUB NOM. NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1167 V. FEDERAL LABOR RELATIONS AUTHORITY,-- F.2D-- (D.C. CIR.
1982). THAT PROPOSAL, IN CONTRAST WITH THE PRESENT DISPUTED PROPOSAL,
WOULD HAVE INCORPORATED INTO THE PARTIES' AGREEMENT SPECIFIC LIMITATIONS
ON MANAGEMENT'S DISCRETION REFLECTING PARTICULAR PROVISIONS OF OMB
CIRCULAR NO. A-76; HENCE, IT WOULD HAVE REQUIRED MANAGEMENT TO COMPLY
WITH THOSE TERMS DURING THE LIFE OF THE CONTRACT REGARDLESS OF WHETHER
THE DIRECTIVE FROM WHICH THEY WERE DERIVED WERE TO BE REVISED OR
RESCINDED. IN REACHING THAT DECISION THE AUTHORITY STATED, AT 4 OF THE
DECISION, AS FOLLOWS:
THIS (NONNEGOTIABLE) 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.
ACCORDINGLY, IT IS CONCLUDED THAT THE PRESENT PROPOSAL IS NOT
INCONSISTENT WITH SECTION 7106(A)(2)(B).
THE AGENCY'S FURTHER CLAIM THAT THE PROPOSAL WOULD CONFLICT WITH OMB
CIRCULAR NO. A-76, ITSELF, BECAUSE IT WOULD SUBJECT GRIEVANCES
CONCERNING APPLICATION OF THE CIRCULAR TO THE NEGOTIATED GRIEVANCE
PROCEDURE, ALSO CANNOT BE SUSTAINED. THE AGENCY STATES IN THIS REGARD
THAT GRIEVANCES ARISING IN CONNECTION WITH THE APPLICATION OF THE
CIRCULAR ONLY CAN BE PURSUED THROUGH THE PROCEDURES PRESCRIBED BY THE
CIRCULAR, I.E., THAT THE PROVISIONS OF THE CIRCULAR LIMIT THE SCOPE AND
COVERAGE OF GRIEVANCE PROCEDURES NEGOTIATED PURSUANT TO THE STATUTE.
THIS CONTENTION IS WITHOUT MERIT. A MATERIALLY IDENTICAL ARGUMENT WITH
RESPECT TO DIRECTIVES OF THE OFFICE OF PERSONNEL MANAGEMENT WAS
CONSIDERED AND REJECTED IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2782 AND DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS,
WASHINGTON, D.C., 6 FLRA NO. 56(1981). THERE, THE AUTHORITY CONCLUDED,
AT 9 OF THE DECISION, THAT "OPM REGULATIONS . . . MAY NOT BE APPLIED IN
A MANNER INCONSISTENT WITH THE SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES
ALLOWED UNDER SECTION 7121 OF THE STATUTE." (FOOTNOTE OMITTED.) RATHER,
THE AUTHORITY HELD THAT THE STATUTE AND ITS RELEVANT LEGISLATIVE HISTORY
REQUIRED THAT GRIEVANCE PROCEDURES NEGOTIATED UNDER SECTION 7121 COVER
ALL MATTERS THAT UNDER THE PROVISIONS OF LAW COULD BE SUBMITTED TO THE
GRIEVANCE PROCEDURE UNLESS THE PARTIES EXCLUDE THEM THROUGH BARGAINING.
CONSEQUENTLY, EVEN ASSUMING IN THE PRESENT CASE THAT A CONFLICT BETWEEN
THE PROPOSAL AND THE CIRCULAR EXISTS, AS CLAIMED BY THE AGENCY, AND THAT
THE CIRCULAR IS A GOVERNMENT-WIDE RULE OR REGULATION WITHIN THE MEANING
OF THE STATUTE, IT MUST BE CONCLUDED HEREIN, FOR THE REASONS STATED IN
BUREAU OF THE CENSUS, THAT THE CIRCULAR IN QUESTION DOES NOT LIMIT THE
STATUTORILY PRESCRIBED SCOPE AND COVERAGE OF THE PARTIES' NEGOTIATED
GRIEVANCE PROCEDURE.
IT MUST BE EMPHASIZED IN THIS REGARD THAT THE AGENCY HAS
MISINTERPRETED THE LEGAL EFFECT OF THE DISPUTED PROPOSAL: THE PROPOSAL
WOULD NOT ITSELF CHANGE THE SCOPE AND COVERAGE OF THE PARTIES' GRIEVANCE
PROCEDURE. THAT IS, UNDER THE STATUTE, EVEN IN THE ABSENCE OF THE
CONTRACT PROVISION PROPOSED BY THE UNION, DISPUTES CONCERNING CONDITIONS
OF EMPLOYMENT ARISING IN CONNECTION WITH THE APPLICATION OF THE CIRCULAR
WOULD BE COVERED BY THE NEGOTIATED GRIEVANCE PROCEDURE UNLESS THE
PARTICULAR GRIEVANCE IS INCONSISTENT WITH LAW (SEE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3403 AND NATIONAL SCIENCE
FOUNDATION, WASHINGTON, D.C., 6 FLRA NO. 114 (1981) (PROPOSAL 3)) OR
UNLESS THE PARTIES EXCLUDE SUCH GRIEVANCES THROUGH NEGOTIATIONS (SEE,
E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO LOCAL 3354
AND U.S. DEPARTMENT OF AGRICULTURE, FARMERS HOME ADMINISTRATION, ST.
LOUIS, MISSOURI, 3 FLRA 320(1980)).
IN VIEW OF THE ABOVE, THE AUTHORITY CONCLUDES THAT UNION PROPOSAL 1
IS WITHIN THE DUTY TO BARGAIN.
UNION PROPOSAL 2
SECTION II-- THE EMPLOYER SHALL NOTIFY THE COUNCIL AND APPROPRIATE
LOCAL PRESIDENT(S) OF
ITS INTENTION TO SOLICIT BIDS FOR CONTRACT WORK WHICH COULD RESULT IN
A REDUCTION-IN-FORCE OR
TRANSFER OR ABOLITION OF FUNCTION AFFECTING EMPLOYEES IN THE UNIT.
SUCH ADVANCE NOTICE SHALL
PROVIDE A FULL EXPLANATION OF THE REASONS FOR SUCH ACTIONS AND
PROVIDE THE UNION SUFFICIENT
OPPORTUNITY TO RESPOND IN WRITING.
THIS PROPOSAL WOULD PROVIDE THE UNION WITH ADVANCE NOTICE AND AN
OPPORTUNITY TO RESPOND TO THE AGENCY'S REASONS FOR ITS "INTENTION" TO
CONTRACT OUT WORK WHEN SUCH ACTION COULD ADVERSELY IMPACT UNIT
EMPLOYEES. GIVING THE LANGUAGE OF THE PROPOSAL ITS COMMON MEANING IN
THE ABSENCE OF ANY CONTRARY INDICATION IN THE RECORD, THE AUTHORITY
FINDS THAT THE PROPOSAL WOULD APPLY WHEN MANAGEMENT HAS DECIDED TO
SOLICIT BIDS FOR CONTRACT WORK WHICH IN ITS JUDGMENT COULD LEAD TO,
E.G., A REDUCTION IN FORCE, BUT HAS NOT YET IMPLEMENTED ITS DECISION.
IT IS CONCLUDED, AS CLAIMED BY THE UNION, THAT UNDER THESE CIRCUMSTANCES
THE PROPOSAL IS NOT TOO REMOTE AND SPECULATIVE, AND INSTEAD WOULD
DIRECTLY AFFECT THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES UNDER THE
STATUTE SO AS TO BE WITHIN THE DUTY TO BARGAIN TO THE EXTENT NOT
INCONSISTENT WITH APPLICABLE LAW OR REGULATION.
AS TO LAW, THE AGENCY'S CLAIM THAT THE PROPOSAL WOULD VIOLATE ITS
STATUTORY RIGHT TO MAKE DETERMINATIONS WITH RESPECT TO CONTRACTING OUT
CANNOT BE SUSTAINED. THE AUTHORITY FINDS, RATHER, THAT THE PROPOSAL IS
ESSENTIALLY PROCEDURAL AND WOULD ONLY REQUIRE ADVANCE NOTICE TO THE
UNION AND AN OPPORTUNITY TO REPLY, AS ALREADY STATED. THUS, THE
PROPOSAL IS WITHIN THE AMBIT OF SECTION 7106(B)(2) OF THE STATUTE WHICH
PROVIDES THAT "PROCEDURES WHICH MANAGEMENT OFFICIALS WILL OBSERVE IN
EXERCISING" THEIR RESERVED RIGHTS ARE NEGOTIABLE. IN THIS REGARD, THE
PROPOSAL CLEARLY WOULD NOT PREVENT THE AGENCY FROM ACTING AT ALL TO MAKE
AND IMPLEMENT ITS DETERMINATION WITH RESPECT TO CONTRACTING OUT AND THUS
IS A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2). 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 152 (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, . . . U.S. . . . , 102 S.CT. 1443(1982). CF.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 AND DEPARTMENT OF
THE AIR FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP (TAC), HOMESTEAD
AIR FORCE BASE, FLORIDA, 6 FLRA NO. 105(1981), AFFIRMED SUB NOM.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 V. FEDERAL LABOR
RELATIONS AUTHORITY, . . . F.2D . . . (D.C. CIR. 1982) (WHEREIN PROPOSAL
1, REQUIRING THE AGENCY TO MAKE AVAILABLE TO THE UNION CERTAIN
"MILESTONE CHARTS" USED BY MANAGEMENT IN DECIDING WHETHER TO CONTRACT
OUT, WAS HELD NONNEGOTIABLE BECAUSE IT INVOLVED THE UNION DIRECTLY INTO
THE INTERNAL DELIBERATIVE PROCESS).
FINALLY, AS TO REGULATION, THE AGENCY RELIES ON 41 CFR 1-1.011-2 AND
1-2.202-1. ASSUMING WITHOUT DECIDING THAT THESE REGULATIONS ARE
GOVERNMENT-WIDE WITHIN THE MEANING OF SECTION 7117(A) OF THE STATUTE SO
THAT THEY COULD BAR NEGOTIATION OF A CONFLICTING PROPOSAL, THE AGENCY
HAS NOT ESTABLISHED THAT UNION PROPOSAL 2 IS INCONSISTENT WITH SUCH
REGULATIONS. SPECIFICALLY, SECTION 1-1.011-2 DECLARES THAT CONGRESS'
POLICY IS TO PROMOTE ECONOMY, EFFICIENCY AND EFFECTIVENESS IN THE
PROCUREMENT OF PROPERTY AND SERVICES BY TAKING OR AVOIDING CERTAIN
ACTIONS. THERE IS NO IMPLICATION, HOWEVER, THAT LAWFUL COLLECTIVE
BARGAINING IS TO BE AVOIDED. FURTHER, SECTION 1-2.202-1 PROVIDES THAT
IT IS GOVERNMENT POLICY, CONSISTENT WITH ITS NEEDS, TO ALLOW SUFFICIENT
TIME BETWEEN THE DISTRIBUTION OF AN INVITATION FOR BIDS AND THE DATE FOR
OPENING BIDS TO PERMIT PROSPECTIVE BIDDERS TO PREPARE AND SUBMIT BIDS.
THUS, THIS REGULATION IS CONCERNED WITH WHAT HAPPENS AFTER A
SOLICITATION OF BIDS WHEREAS THE PROPOSAL IS CONCERNED WITH THE PERIOD
PRIOR TO SUCH SOLICITATION. THUS, THERE IS NO FACIAL INCONSISTENCY
BETWEEN THE DISPUTED PROPOSAL AND THIS REGULATION AND THE AGENCY HAS NOT
ESTABLISHED IN THE RECORD THAT THERE IS A CONFLICT.
IN SUMMARY, UNION PROPOSAL 2 CONCERNS CONDITIONS OF EMPLOYMENT UNDER
THE STATUTE AND THE AGENCY HAS NOT ESTABLISHED THAT IT IS INCONSISTENT
WITH SECTION 7106(A)(2)(B) OF THE STATUTE OR WITH THE RULES OR
REGULATIONS CITED BY THE AGENCY. HENCE, IT IS WITHIN THE DUTY TO
BARGAIN.
UNION PROPOSAL 3
SECTION III-- THE PARTIES SHALL NEGOTIATE THE (E)FFECT OF ANY
CONTRACTING-OUT DECISION
WHICH COULD ALTER THE CONDITIONS OF EMPLOYMENT IN THE BARGAINING UNIT
PRIOR TO IMPLEMENTING
THE DECISION TO CONTRACT-OUT. THE EMPLOYER AGREES TO ELIMINATE OR
MINIMIZE ANY POTENTIAL
ADVERSE (E)FFECT THROUGH REASSIGNMENT OR TRAINING AND TO TAKE
WHATEVER OTHER ACTION MAY BE
NECESSARY TO PROTECT BARGAINING UNIT EMPLOYEES.
THE UNION'S STATEMENT BEFORE THE AUTHORITY INDICATES THAT ITS
PROPOSAL WOULD REQUIRE THE AGENCY TO MINIMIZE THE EFFECT OF CONTRACTING
OUT AS TO "ALL PERSONS BEING AFFECTED." THUS, UNDER THE LANGUAGE OF THE
DISPUTED PROPOSAL, CONFIRMED BY THE UNION'S STATEMENT AS TO ITS INTENDED
MEANING, THE PROPOSAL WOULD GO BEYOND REQUIRING THE AGENCY GENERALLY TO
MINIMIZE THE EFFECT OF CONTRACTING OUT ON THE BARGAINING UNIT WITH DUE
REGARD FOR APPLICABLE LAWS INCLUDING THE STATUTE, AS DID THE PROPOSALS
HELD NEGOTIABLE BY THE AUTHORITY IN INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, LOCAL 2424 AND DEPARTMENT OF THE ARMY,
ABERDEEN PROVING GROUND, MARYLAND, 8 FLRA NO. 117(1982). RATHER, THE
INSTANT PROPOSAL WOULD SPECIFICALLY REQUIRE THE AGENCY TO REASSIGN OR
TRAIN "ALL PERSONS" WHO WOULD BE ADVERSELY AFFECTED BY CONTRACTING OUT
AND TO TAKE "WHATEVER OTHER ACTION MAY BE NECESSARY" TO PROTECT EACH ONE
OF THEM.
ACCORDINGLY, IN AGREEMENT WITH THE AGENCY, THE AUTHORITY CONCLUDES
THAT THIS PROPOSAL IN EFFECT WOULD PRESERVE ABSOLUTE EMPLOYMENT SECURITY
FOR SUCH EMPLOYEES. AS A CONSEQUENCE, IT WOULD NOT CONSTITUTE AN
"APPROPRIATE" ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY
MANAGEMENT'S EXERCISE OF ITS STATUTORY RIGHTS. /1/ CF. NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 AND DEPARTMENT OF THE AIR
FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP (TAC), HOMESTEAD AIR
FORCE BASE, FLORIDA, 6 FLRA NO. 105 (1981), AFFIRMED AS TO OTHER MATTERS
SUB NOM. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 V. FEDERAL
LABOR RELATIONS AUTHORITY, -- F.2D -- (D.C. CIR. 1982) (WHEREIN PROPOSAL
4, REQUIRING THE AGENCY ONLY TO CONSIDER RESTRICTING NEW HIRES IN ORDER
TO RETAIN BARGAINING UNIT EMPLOYEES IN CONTRACTING OUT SITUATIONS,
CONSTITUTED AN "APPROPRIATE ARRANGEMENT" UNDER SECTION 7106(B)(3)).
RATHER, THIS PROPOSAL WOULD DIRECTLY INTERFERE WITH THE AGENCY'S
EXERCISE OF, INTER ALIA, ITS RIGHT UNDER SECTION 7106(A)(2)(A) OF THE
STATUTE TO "LAYOFF" EMPLOYEES AND, THUS, IS OUTSIDE THE DUTY TO BARGAIN.
/2/ NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE SERVICE, 7
FLRA NO. 42 (1981) (PROPOSAL 5).
THEREFORE, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS, IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSALS 1
AND 2. /3/ IT IS FURTHER ORDERED THAT THE PORTION OF THE UNION'S
PETITION FOR REVIEW CONCERNING UNION PROPOSAL 3 BE, AND IT HEREBY IS,
DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 2, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7106(B)(3) OF THE STATUTE PROVIDES:
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.
/2/ IN VIEW OF THIS DECISION, THE AUTHORITY FINDS IT UNNECESSARY TO
RULE AS TO OTHER STATUTORY RIGHTS CLAIMED BY THE AGENCY TO BE VIOLATED
BY THE PROPOSAL.
/3/ IN FINDING THESE PROPOSALS TO BE NEGOTIABLE, THE AUTHORITY MAKES
NO JUDGMENT AS TO THEIR MERITS.
End of file encountered
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