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).