14:0302(55)NG - AFGE Local 2736 and Air Force, HQ 379th Combat Support Group (SAC), Wurtsmith AFB, MI -- 1984 FLRAdec NG



[ v14 p302 ]
14:0302(55)NG
The decision of the Authority follows:


 14 FLRA No. 55
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2736
 Union
 
 and
 
 DEPARTMENT OF THE AIR FORCE,
 HEADQUARTERS 379TH COMBAT
 SUPPORT GROUP (SAC), WURTSMITH
 AIR FORCE BASE, MICHIGAN
 Agency
 
                                            Case No. O-NG-471 
                                              9 FLRA 733
 
                       DECISION AND ORDER ON REMAND
 
    On August 19, 1983, the United States Court of Appeals for the
 District of Columbia Circuit remanded this case to the Authority for
 further consideration of its negotiability determination with respect to
 certain disputed language sought to be included in a bargaining
 agreement between the parties.  American Federation of Government
 Employees, Local 2736 v. Federal Labor Relations Authority, 715 F.2d 627
 (D.C. Cir. 1983).
 
    The Authority had dismissed the Union's appeal finding that it was
 improperly before the Authority as a negotiability issue to be resolved
 pursuant to section 7117 of the Statute but should have either been
 filed under the unfair labor practice procedures of the Statute or
 processed through the parties' contractual grievance procedure.  In this
 regard, the Agency had asserted that the Union waived its right to
 negotiate the matters at issue since the local parties reached agreement
 on mutually acceptable language regarding the matters covered by the
 proposals contained in the Union's appeal to the Authority;  such
 language was incorporated in the local agreement which was executed
 prior to the Union's appeal;  and the parties' contractual reopener
 clause, relied upon by the Union, was inapplicable based upon factual
 circumstances surrounding the negotiation of the local agreement.
 American Federation of Government Employees, AFL-CIO, Local 2736 and
 Department of the Air Force, Headquarters, 379th Combat Support Group
 (SAC), Wurtsmith Air Force Base, Michigan, 9 FLRA 733 (1982).
 
    On appeal, the Court held that "the Authority's decision that both
 negotiability and factual issues be determined in an unfair labor
 practice or contractual grievance hearing contravenes the clear
 statutory mandate of Section 7117(c) that negotiability disputes be
 processed as expeditiously as is practicable." It therefore vacated the
 Authority's decision and remanded the case to the Authority for further
 proceedings consistent with the Court's Opinion.  /1/ Therefore, the
 Authority will now resolve the merits of the negotiability issues raised
 by the Union.
 
                              Proposal No. 1
 
          A. Any cost study used as justification for a decision to
       contract-out must have the same scope of work for both in-house
       and contracting-out estimates.
 
                              Proposal No. 2
 
          B.  Any in-house estimates on a cost study used as
       justification for a decision to contract-out must be based on the
       most efficient and cost effective organization for in-house
       performance.
 
    In agreement with the Agency, the Authority concludes that Proposals
 1 and 2 would directly interfere with management's right under section
 7106(a)(2)(B) of the Statute "to make determinations with respect to
 contracting out." In this regard, the right of management officials
 under section 7106(a)(2)(B) to make determinations with respect to
 contracting out encompasses not only the right to take such action but
 also the right to engage in preliminary discussion and deliberation
 concerning the relevant factors upon which determinations will be made.
 National Federation of Federal Employees, Local 1167 and Department of
 the Air Force, 31st Combat Support Group (TAC), Homestead Air Force
 Base, Florida, 6 FLRA 574 (1981), affirmed sub nom. National Federation
 of Federal Employees, Local 1167 v. Federal Labor Relations Authority,
 681 F.2d 886 (D.C. Cir. 1982).  Proposals 1 and 2 however, would
 interfere with this deliberative process by prescribing standards to be
 used in evaluating some of the factors upon which a contracting out
 determination could be based.  That is, Proposals 1 and 2 would
 substantively restrict how a cost study used in determining whether to
 contract out could be conducted.
 
    Finally, the Union's arguments that Proposals 1 and 2 are negotiable
 because they merely reiterate restrictions contained in Office of
 Management and Budget (OMB) Circular No. A-76 (Proposal 1) and Public
 Law 96-342 (Proposal 2), cannot be sustained.  In Homestead Air Force
 Base, supra, a similar argument was proffered and rejected.  In that
 case the Authority noted that, as 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, no
 provision could be negotiated which would preclude the exercise of a
 management right.  Hence, the Authority concluded, negotiation of an
 independent contractual requirement limiting management's discretion
 with respect to contracting out would go beyond mere recognition by the
 parties in their collective bargaining agreement of external
 limitations.  It would, rather, impose substantive limitations in and of
 itself on management's right to contract out.  Therefore, based on the
 foregoing, Proposals 1 and 2 herein, which also go beyond mere
 recognition of external statutory or regulatory limitations by imposing
 substantive limitations on management's right to contract out, are
 outside the duty to bargain under the Statute.  /2/
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as to
 Proposals 1 and 2 be, and it hereby is, dismissed.
 
                              Proposal No. 3
 
       No contract award shall be made until all grievance procedures, up
       to and including arbitration are exhausted in regard to any
       contract provision pertaining to the impact and implementation of
       a contracting-out decision.
 
    The Agency essentially contends that Union Proposal 3 would impose so
 lengthy a delay on the implementation of a contracting out decision as
 to prevent the Agency from acting at all with regard to its rights:
 Under section 7106(a)(1), "to determine . . . the organization, number
 of employees, and internal security practices of the agency;" under
 section 7106(a)(2)(A), "to hire, assign, direct, layoff . . .
 employees;" under section 7106(a)(2)(B), "to assign work, to make
 determinations with respect to contracting out, and to determine the
 personnel by which agency operations shall be conducted;" and under
 section 7106(a)(2)(D), "to take whatever actions may be necessary t