10:0003(1)NG - AFGE, National Council of EEOC Locals and EEO Commission -- 1982 FLRAdec NG



[ v10 p3 ]
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
 PROCURE