Director of Administration Headquarters, U.S. Air Force (Respondent) and AFGE-GAIU Council of HQ Air Force Locals, AFL-CIO (Charging Party)



[ 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 CERTIFICA