American Federation of Government Employees, Local 3403, AFL-CIO (Union) and National Science Foundation, Washington, DC (Agency)

 



[ v06 p669 ]
06:0669(114)NG
The decision of the Authority follows:


 6 FLRA No. 114
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 3403
 Union
 
 and
 
 NATIONAL SCIENCE FOUNDATION,
 WASHINGTON, D.C.
 Agency
 
                                            Case No. O-NG-231
 
                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 (THE STATUTE) (5
 U.S.C. 7101-7135).
 
    DURING THE TERM OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, THE
 AGENCY HAD FORWARDED A PROPOSED CIRCULAR ON "CONTRACTING OUT" TO THE
 UNION FOR REVIEW.  IN RESPONSE, THE UNION SUBMITTED SEVERAL PROPOSALS,
 THREE OF WHICH ARE IN DISPUTE HEREIN, TO REPLACE SPECIFIC PROVISIONS OF
 THE PROPOSED CIRCULAR.  THUS, THE ISSUE PRESENTED TO THE AUTHORITY IS
 THE NEGOTIABILITY OF THE FOLLOWING UNION PROPOSALS:  /1/
 
                          UNION PROPOSALS 1 AND 2
 
                             UNION PROPOSAL 1
 
    5.  SCOPE.  THIS CIRCULAR APPLIES TO ALL INDIVIDUAL GOVERNMENT
 COMMERCIAL OR INDUSTRIAL
 
    ACTIVITIES (EXCEPT GOVERNMENTAL FUNCTIONS) AND TO ALL COMMERCIAL OR
 INDUSTRIAL CONTRACTS WHICH
 
    HAVE ANNUAL COSTS OF $5,000 OR MORE.  A "GOVERNMENT COMMERCIAL OR
 INDUSTRIAL ACTIVITY" IS (AS
 
    IN MANAGEMENT DRAFT).
 
                             UNION PROPOSAL 2
 
    7.  INVENTORY AND REVIEW OF COMMERCIAL AND INDUSTRIAL ACTIVITIES
 
    A.  INVENTORIES.  A COMPLETE INVENTORY OF INDIVIDUAL
 FOUNDATION-OPERATED COMMERCIAL OR
 
    INDUSTRIAL ACTIVITIES (AS DEFINED IN PARAGRAPH 5) WILL BE COMPILED
 AND UPDATED BY DPM, IN
 
    CONJUNCTION WITH DFA.  DPM, IN CONJUNCTION WITH DGC, WILL PREPARE AND
 MAINTAIN AN INVENTORY OF
 
    ALL COMMERCIAL AND INDUSTRIAL CONTRACTS IN EXCESS OF $100,000 A YEAR.
  ACTIVITIES WHICH HAVE
 
    BEEN CONVERTED FROM IN-HOUSE TO CONTRACT PERFORMANCE WILL BE SO
 IDENTIFIED.
 
   .          .          .          .
 
 
    B.  (3) AFTER THE INITIAL REVIEW, ACTIVITIES WILL BE REVIEWED
 ANNUALLY.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSALS ARE OUTSIDE THE DUTY TO
 BARGAIN UNDER THE STATUTE BECAUSE THEY DO NOT CONCERN MATTERS WHICH ARE
 CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSALS ARE OUTSIDE THE DUTY TO
 BARGAIN BECAUSE THEY DO NOT CONCERN MATTERS WHICH ARE CONDITIONS OF
 EMPLOYMENT OF BARGAINING UNIT EMPLOYEES.  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 INSOFAR AS IT
 APPLIES TO THESE PROPOSALS BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  THE SCOPE OF THE DUTY TO BARGAIN UNDER THE STATUTE EXTENDS
 TO CONDITIONS OF EMPLOYMENT, I.E., PERSONNEL POLICIES, PRACTICES AND
 MATTERS AFFECTING WORKING CONDITIONS OF BARGAINING UNIT EMPLOYEES.  /2/
 
    FOR EXAMPLE, COMPARE WHERE THE AUTHORITY HAS FOUND A PROPOSAL WHICH
 CONCERNED A MATTER AFFECTING "THE WORK SITUATION AND EMPLOYMENT
 RELATIONSHIP" OF BARGAINING UNIT EMPLOYEES TO BE WITHIN THE DUTY TO
 BARGAIN.  NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE
 SERVICE, 3 FLRA NO. 112(1980).  SEE ALSO AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 604, 606(1980), ENFORCED
 AS TO OTHER MATTERS SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR
 RELATIONS AUTHORITY, . . . F.2D . . . (D.C. CIR. 1981).  WHEREAS,
 PROPOSALS WITH RESPECT TO MATTERS CONCERNING NON-BARGAINING UNIT
 EMPLOYEES DO NOT CONCERN CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES AND
 ARE NOT WITHIN THE DUTY TO BARGAIN.  SEE, E.G., NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1451 AND NAVAL TRAINING CENTER, ORLANDO,
 FLORIDA, 3 FLRA NO. 14(1980), ENFORCED, 652 F.2D 191 (D.C.  CIR. 1981);
 NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. DEPARTMENT OF LABOR, WASHINGTON,
 D.C., 3 FLRA NO. 44(1980);  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2 AND DEPARTMENT OF THE ARMY, MILITARY DISTRICT OF
 WASHINGTON, 4 FLRA NO. 60(1980).
 
    BASED UPON THE RECORD HEREIN, THE AUTHORITY HAS DETERMINED THAT UNION
 PROPOSALS 1 AND 2 FALL WITHIN THE CATEGORY OF PROPOSALS DESCRIBED IN THE
 CASES CITED ABOVE AS NOT CONCERNING CONDITIONS OF EMPLOYMENT.  UNION
 PROPOSAL 1 SETS FORTH THE UNION'S PROPOSAL REGARDING THE GENERAL EXTENT
 OF THE AGENCY'S CIRCULAR ON "CONTRACTING OUT," I.E., ITS "SCOPE" OF
 APPLICATION.  UNION PROPOSAL 2, IN ESSENCE, CONCERNS AGENCY PREPARATION,
 MAINTENANCE, AND REVIEW OF RECORDS OF WORK THE AGENCY HAS DETERMINED TO
 PERFORM EITHER IN-HOUSE OR BY CONTRACTING OUT.  NEITHER PROPOSAL ON ITS
 FACE INVOLVES PERSONNEL POLICIES, PRACTICES, OR MATTERS AFFECTING
 WORKING CONDITIONS OF UNIT EMPLOYEES.  SIMILARLY, AS TO THE EFFECT OF
 THE PROPOSALS, NO DIRECT RELATIONSHIP IS APPARENT BETWEEN THEM AND
 ACTIONS AFFECTING UNIT EMPLOYEES.  THAT IS, THERE IS NOTHING IN UNION
 PROPOSAL 1 TO INDICATE THAT THE "SCOPE" OF THE CIRCULAR RELATES TO
 CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES, AND THE UNION HAS NOT
 PROVIDED THE AUTHORITY WITH ANY EXPLANATION AS TO THE INTENT OF THE
 PROPOSAL WHICH WOULD SUPPORT A FINDING THAT SUCH A RELATIONSHIP EXISTS.
 SIMILARLY, UNION PROPOSAL 2 RELATES ONLY TO INTERNAL AGENCY
 RECORDKEEPING CONCERNING ACTIONS THE AGENCY WOULD ALREADY HAVE TAKEN
 WITH RESPECT TO CONTRACTING OUT.
 
    MANAGEMENT HAS THE RIGHT UNDER SECTION 7106(A)(2)(B) OF THE STATUTE
 /3/ TO MAKE DETERMINATIONS WITH RESPECT TO CONTRACTING OUT.  WHILE
 MANAGEMENT'S DECISIONS REGARDING THE CONTRACTING OUT OF WORK MAY
 ULTIMATELY AFFECT BARGAINING UNIT EMPLOYEES, THE PREPARATION,
 MAINTENANCE, AND REVIEW OF AGENCY RECORDS WOULD HAVE NO SUCH EFFECT.
 THEREFORE, IN THE ABSENCE OF ANY DEMONSTRATION IN THE RECORD OF A DIRECT
 RELATIONSHIP BETWEEN UNION PROPOSALS 1 AND 2 AND UNIT EMPLOYEES' WORK
 SITUATIONS OR EMPLOYMENT RELATIONSHIPS, THE AUTHORITY MUST FIND THAT THE
 PROPOSALS DO NOT CONCERN MATTERS WHICH ARE "CONDITIONS OF EMPLOYMENT"
 WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE STATUTE.  THEREFORE,
 THE AGENCY IS NOT OBLIGATED TO BARGAIN WITH RESPECT TO THEM.
 
    THIS DECISION DOES NOT PRECLUDE THE UNION FROM PROPOSING MATTERS IN
 CONNECTION WITH MANAGEMENT'S EXERCISE OF ITS RIGHT TO CONTRACT OUT WHICH
 WOULD AFFECT WORKING CONDITIONS OF BARGAINING UNIT EMPLOYEES AND WHICH
 WOULD NOT DIRECTLY INTERFERE WITH MANAGEMENT'S RIGHT UNDER SECTION
 7106(A)(2)(B) TO MAKE DETERMINATIONS WITH RESPECT TO CONTRACTING OUT.
 PROPOSALS FOR PROCEDURES WHICH MANAGEMENT WILL FOLLOW IN MAKING
 DETERMINATIONS WITH RESPECT TO CONTRACTING OUT, OR FOR APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE
 OF THIS RIGHT, WOULD BE NEGOTIABLE PURSUANT TO SECTION 7106(B)(2) AND
 (3) UNLESS THEY PREVENT MANAGEMENT FROM ACTING AT ALL TO EXERCISE ITS
 RIGHT.  IN THIS REGARD, SEE 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), IN WHICH THE AUTHORITY FOUND NEGOTIABLE A PROPOSAL REQUIRING AN
 AGENCY TO CONSIDER ATTRITION PATTERNS AND TO CONSIDER RESTRICTING NEW
 HIRES IN ORDER TO MINIMIZE ANY ADVERSE IMPACT ON CAREER EMPLOYEES OF
 MANAGEMENT'S DECISION TO CONTRACT OUT.  /4/
 
                             UNION PROPOSAL 3
 
    8.  APPEALS.  THE FOUNDATION HAS ESTABLISHED A PROCEDURE FOR AN
 INFORMAL ADMINISTRATIVE
 
    REVIEW OF DETERMINATIONS MADE UNDER THIS CIRCULAR AND OMB CIRCULAR
 A-76.  THIS PROCEDURE WILL
 
    ONLY BE USED TO RESOLVE QUESTIONS OF THE DETERMINATION BETWEEN
 CONTRACT AND IN-HOUSE
 
    PERFORMANCE, AND WILL NOT APPLY TO QUESTIONS CONCERNING AWARD TO ONE
 CONTRACTOR IN PREFERENCE
 
    TO ANOTHER CONTRACTOR.  THE APPEALS PROCEDURE IS TO PROVIDE AN
 ADMINISTRATIVE SAFEGUARD TO
 
    ASSURE THAT THE DECISIONS ARE FAIR, EQUITABLE, AND IN ACCORDANCE WITH
 ESTABLISHED POLICY.  DGC
 
    WILL MAKE AVAILABLE DETAILED ANALYSES OF REVIEWS TO ANY INTERESTED
 PARTIES.  THIS APPEALS
 
    PROCEDURE IS NOT A SUBSTITUTE FOR ANY RIGHT ANY PARTY MIGHT HAVE
 UNDER LAW OR CONTRACT TO
 
    NEGOTIATE OR ARBITRATE CONCERNING DISPUTES RELATED TO THESE
 DECISIONS.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS INCONSISTENT WITH
 SECTION 7106(A)(2)(B) OF THE STATUTE /5/ AND, THEREFORE, IS OUTSIDE THE
 DUTY TO BARGAIN.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSAL IS INCONSISTENT WITH
 MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(2)(B) OF THE STATUTE TO MAKE
 DETERMINATIONS WITH RESPECT TO CONTRACTING OUT AND, THEREFORE, IS
 OUTSIDE 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 DISPUTED PROPOSAL BE, AND IT
 HEREBY IS, DISMISSED.
 
    REASONS:  THE AGENCY INTERPRETS THIS PROPOSAL TO MEAN THAT MANAGEMENT
 DETERMINATIONS WITE RESPECT TO CONTRACTING OUT MAY BE CHALLENGED UNDER
 THE PARTIES' NEGOTIATED GRIEVANCE PROCEDURE.  SINCE THE LANGUAGE OF THE
 PROPOSAL IS SUBJECT TO THIS INTERPRETATION AND THE UNION DOES NOT
 CONTROVERT IT, THE AGENCY'S INTERPRETATION IS ADOPTED FOR PURPOSES OF
 THIS DECISION.
 
    IN THIS REGARD, THE AUTHORITY HELD IN 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) THAT NO GRIEVANCE PROCEDURE COULD BE
 NEGOTIATED WHICH WOULD DENY THE AUTHORITY OF AN AGENCY TO EXERCISE ITS
 MANAGEMENT RIGHTS UNDER SECTION 7106.  THUS, THE AUTHORITY FOUND
 NONNEGOTIABLE A PROPOSAL WHICH PROVIDED FOR GRIEVANCES CHALLENGING
 MANAGEMENT'S EXERCISE OF ITS RIGHTS TO DIRECT EMPLOYEES AND TO ASSIGN
 WORK, UNDER SECTION 7106(A)(2)(A) AND (B), THROUGH IDENTIFICATION OF
 CRITICAL ELEMENTS AND ESTABLISHMENT OF PERFORMANCE STANDARDS.  IN THIS
 REGARD, THE AUTHORITY FOUND THAT, BY SUBJECTING THE AGENCY'S EXERCISE OF
 THOSE RESERVED RIGHTS TO ARBITRAL REVIEW AND THEREFORE TO THE
 POSSIBILITY OF ARBITRATORS SUBSTITUTING THEIR JUDGMENT FOR THAT OF THE
 AGENCY WITH RESPECT THERETO, THE PROPOSAL CONFLICTED WITH SECTION 7106.
 
    SIMILARLY, IN THE PRESENT CASE, SECTION 7106(A)(2)(B) OF THE STATUTE
 RESERVES TO MANAGEMENT THE RIGHT TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND THE UNION'S PROPOSAL PROVIDES FOR GRIEVANCES
 CHALLENGING SUCH DETERMINATIONS.  THEREFORE, FOR THE REASONS SET FORTH
 IN SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION, SUPRA, THE UNION'S
 PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN.  /6/
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 24, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE UNION'S APPEAL ORIGINALLY INCLUDED ANOTHER PROPOSAL ENTITLED
 "POLICY." BASED ON THE RECORD, THE PARTIES SUBSEQUENTLY REACHED
 AGREEMENT WITH RESPECT TO A MODIFIED "POLICY" PROPOSAL.  THEREFORE, ANY
 DISPUTE REGARDING THE QUESTION OF WHETHER THE ORIGINAL "POLICY" PROPOSAL
 IS WITHIN THE PARTIES' DUTY TO BARGAIN HAS BEEN RENDERED MOOT AND THE
 AUTHORITY WILL NOT DEAL WITH THAT PROPOSAL HEREIN.
 
    /2/ THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE IS ESTABLISHED IN
 SECTION 7114, WHICH PROVIDES, IN RELEVANT PART:
 
    SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
   .          .          .          .
 
 
    (A)(4) ANY AGENCY AND ANY EXCLUSIVE REPRESENTATIVE IN ANY APPROPRIATE
 UNIT IN THE AGENCY,
 
    THROUGH APPROPRIATE REPRESENTATIVES, SHALL MEET AND NEGOTIATE IN GOOD
 FAITH FOR THE PURPOSES
 
    OF ARRIVING AT A COLLECTIVE BARGAINING AGREEMENT. . .
 
    SECTION 7114(B)(2) FURTHER STATES THAT THE DUTY TO NEGOTIATE IN GOOD
 FAITH SHALL INCLUDE THE OBLIGATION "TO DISCUSS AND NEGOTIATE ON ANY
 CONDITION OF EMPLOYMENT." "COLLECTIVE