[ v24 p453 ]
24:0453(49)NG
The decision of the Authority follows:
24 FLRA No. 49
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 3097
Union
and
DEPARTMENT OF JUSTICE
Agency
Case No. 0-NG-1100
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed by the Union under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of three Union proposals.
II. Preliminary Issue: Whether the Union Waived Its Right
to Bargain
The disputed proposals were submitted by the Union in response to the
Agency's decision during the term of the parties' agreement to
reorganize part of the Justice Management Division. The Agency contends
that the Union waived its right to bargain over the impact and
implementation of the reorganization in Article 20 of the parties'
agreement, and that the Agency's sole obligation is to notify the Union
of the reorganization and consult with it concerning efforts to minimize
the adverse effects on employees. The Union contends that it has not
waived any of its bargaining rights and that the Agency is obligated
under the parties' agreement to negotiate concerning the impact of the
reorganization.
The record in this case fails to provide any basis for substantiating
the Agency's assertion that the Union waived its right to bargain over
the matters in dispute. Further, to the extent that there are factual
issues in dispute between the parties concerning the duty to bargain in
the specific circumstances of this case, these issues may be raised in
other appropriate proceedings. See 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, 14 FLRA 302, 306 n.6 (1984).
III. Union Proposal 1
The FLRA Members disagree over the negotiability of this proposal.
The majority opinion on part 1 of Proposal 1 is on page 5 of this
decision; Chairman Calhoun's separate opinion is on page 9. The
majority opinion on part 2 of the proposal is on page 10; Member
McKee's dissent is on page 15.
IV. Union Proposal 2
The FLRA Members disagree over the negotiability of this proposal.
The majority opinion on Proposal 2 is on page 11 of this decision;
Member McKee's separate opinion is on page 15.
V. Union Proposal 3
Any employee who has a disciplinary action based upon poor
performance within the previous organization shall have that
disciplinary action held in abeyance for 120 days. At the end of
that time, the disciplinary action will be re-evaluated under new
operating procedures to assess the necessity of continuing said
action.
A. Positions of the Parties
The Agency contends that Union Proposal 3 is unrelated to the adverse
impact on employees from the reorganization and, therefore, exceeds the
scope of its obligation to bargain concerning that impact. The Agency
further argues that, in delaying a disciplinary action for 120 days, the
proposal conflicts with 5 U.S.C. Section 4303 which requires a final
decision to be issued within 90 days of the date a performance-based
adverse action is proposed. Additionaly, the Agency contends that the
proposal would improperly condition its rights under section
7106(a)(2)(A) upon a 120-day trial period. It argues that the proposal
directly concerns the exercise of the Agency's rights and does not,
therefore, constitute a procedure. It claims that the proposal could
require it to retain an employee in a position for the 120-day period
even though the Agency has determined that the employee's performance
constitutes a danger to its operations or to other employees. Finally,
the Agency contends that the proposal violates 5 U.S.C. Section
7511(a)(1)(A) in that it makes no exception for the removal of
probationary employees who could potentially complete their probationary
periods during the 120 days.
The Union disputes the Agency's contentions, and argues that Proposal
3 constitutes a procedure that does not prevent the Agency from acting
at all. The Union claims that the reorganization could result in
improved performance because of a more efficient and effective
structure. It argues that performance-based adverse actions should
therefore be delayed so that employees' post-reorganization performance
may be taken into account in deciding whether to proceed with the
proposed action.
B. Analysis and Conclusions
1. The Agency's Assertions Concerning the Obligation to Bargain
The record in this case fails to provide a basis for substantiating
the Agency's assertion that Union Proposal 3 exceeds the scope of its
duty to bargain over the impact of the reorganization. See above
discussion at section II of this Decision. Factual issues in dispute
between the parties concerning the duty to bargain in the specific
circumstances of this case should be raised in other appropriate
proceedings.
2. The Proposal Conflicts with 5 U.S.C. Section 4303
Union Proposal 3 would require the Agency to delay a
performance-based adverse action for 120 days so that an employee may be
given a chance to demonstrate improved performance as a result of the
reorganization. We find, in agreement with the Agency, that the 120-day
delay could prevent the Agency from disciplining an employee for
unacceptable performance under 5 U.S.C. Section 4303.
Under subsection (b) of section 4303, an employee is entitled to 30
days advance notice of a proposed performance-based adverse action. The
notice period may be extended for no more than 30 days pursuant to
internal agency regulation, and for an additional period only in
accordance with regulations issued by the Office of Personnel Management
(OPM). /1/ This notice period is the period under section 4303 during
which an employee may demonstrate improved performance so as to render
the proposed adverse action unnecessary. See 5 U.S.C. Section 4303(d).
Subsection (c) provides that the decision regarding the adverse action
shall be made within 30 days after the expiration of the notice period,
that is, after the employee has had an opportunity to demonstrate the
improved performance.
An agency must, therefore, complete a performance-based adverse
action within 90 days of the date notice is given to the employee.
Since Union Proposal 3 would require the adverse action to be delayed
for 120 days it is inconsistent with 5 U.S.C. Section 4303 and is
outside the duty to bargain under section 7117(a)(1) of the Statute. In
view of this decision, it is unnecessary for us to decide whether
Proposal 3 would also violate management's right to discipline employees
under section 7106(a)(2)(A) or require the Agency to provide additional
procedural protections to probationary employees in violation of 5
U.S.C. Section 7511.
VI. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
the Union's petition for review as to Union Proposal 3 is dismissed.
Issued, Washington, D.C., December 15, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Union Proposal 1
(Part 1)
Training opportunities will not be diminished nor will previous
training be invalidated as a result of the reorganization. (Part 1 of
the proposal is underscored.)
The Agency contends that Part 1 of the Union's proposal would require
it to provide the same training opportunities that it current provides,
in violation of its right under section 7106(a)(2)(B) to assign work.
It argues that the proposal would also violate Federal Personnel Manual
(FPM) Chapter 213, Appendix A, paragraph A-2(a) and 5 U.S.C. Sections
4109(a)(2) and 4101(4) by requiring it to provide training that may not
be related to an employee's new duties. The Union disputes the Agency's
contentions. It argues that Part 1 of Proposal 1 is an appropriate
arrangement. The Union contends that this part of the proposal is
similar to a proposal requiring management to provide training for
employees to qualify for new positions which the Authority found to be
an appropriate arrangement in American Federation of Government
Employees, AFL-CIO, Social Security Local No. 1760 and Department of
Health and Human Services, Social Security Administration, 9 FLRA 813
(1982) (Union Proposal 2).
Majority Opinion
1. Part 1 of Union Proposal 1 Directly Interferes with the Agency's
Right to Assign Work
The Authority has consistently held that providing training to
employees is encompassed within management's right under section
7106(a)(2)(B) to assign work. See National Association of Air Traffic
Specialists and Department of Transportation, Federal Aviation
Administration, 6 FLRA 588, 590-91 (1981) (Union Proposals I through
III). Part 1 of the Union's proposal would prohibit the Agency from
reducing training opportunities as a result of the reorganization. That
is, the proposal would require the Agency to provide the same number of
training opportunities for unit employees that it provided before the
reorganization. Since Union Proposal 1 would require the Agency to
exercise its right to assign work by providing employees with a specific
amount of training, we find that the first part of the proposal would
directly interfere with that right.
The Agency has not demonstrated that the first part of the proposal
also violates FPM Chapter 213, Appendix A, paragraph A-2(a) and 5 U.S.C.
Sections 4109(a)(2) and 4101(4). Nothing in the Union's proposal would
require the Agency to provide employees with training which is unrelated
to the duties of their positions. The proposal does not require the
Agency to provide employees with the same training course it provided in
the past. Rather, Union Proposal 1 is concerned with maintaining the
current amount of training opportunities. Accordingly, we reject the
Agency's contention.
2. Part 1 of the Proposal Constitutes an Appropriate Arrangement
After this case was filed, the Authority issued National Association
of Government Employees, Local R14-87 and Kansas Army National Guard, 21
FLRA No. 4 (1986). In that case, we stated that we will determine
whether a proposed arrangement for employees adversely affected by the
agency's exercise of its section 7106(a) or (b)(1) rights is
"appropriate" for negotiation within the meaning of section 7106(b)(3),
or whether it is inappropriate because it would "excessively interfere"
with the exercise of management's rights.
In determining whether a proposal excessively interferes, the
Authority indicated that as a threshold matter it would examine the
record in each case to determine whether a proposal was in fact intended
to be an arrangement for employees adversely affected by management's
exercise of its rights. The Authority stated that it would look to "the
effects or foreseeable effects on employees which flow from the exercise
of those rights." Id., slip op. at 8. This threshold consideration
excludes as appropriate arrangements proposals interfering with
management's rights which address purely speculative or hypothetical
concerns, or which are otherwise unrelated to management's exercise of
its reserved rights. However, where an adverse effect on employees is
reasonably foreseeable based on the record, the Authority will reach the
question of whether the proposal excessively interferes.
The record in this case indicates that the Union has more than merely
a hypothetical or speculative concern with diminished training
opportunities flowing from the Agency's reorganization. The Agency
states that as a result of the reorganization "an employee's new duties
may not be sufficiently related to certain course work to permit
reimbursement . . . (W)ork assignments may be changed by . . . the
reorganization to an extent where a course would no longer be relevant
to the nature of the work performed." Agency Statement of Position at 5.
The Agency itself thus recognizes the reasonable possibility that the
employee training opportunities may diminish as a result of the
reorganization.
As to whether part 1 of the proposal excessively interferes with
management's exercise of its rights, the Authority finds that the first
part of the Union's proposal is to the same effect as the proposal that
the Authority found to constitute an appropriate arrangement in the case
cited by the Union, American Federation of Government Employees,
AFL-CIO, Social Security Local No. 1760 and Department of Health and
Human Services, Social Security Administration, 9 FLRA 813 (1982) (Union
Proposal 2). The Authority found that the proposal in that case merely
required the agency to provide training opportunities but did not
mandate that training occur during duty hours, or otherwise interfere
with the agency's discretion concerning the methodology, scheduling,
duration, type, content, or other characteristics of the training
itself. Similarly, the first part of Union Proposal 1 here merely
requires the Agency to continue to provide the same amount of training
opportunities that it provided prior to the reorganization but leaves to
the Agency's discretion decisions as to the type of training and when it
is to occur. Consequently, for the reasons set forth more fully in
Department of Health and Human Services, we find that the first part of
Union Proposal 1 does not excessively interfere with management rights
and is an appropriate arrangement within the meaning of section
7106(b)(3).
Conclusion
For the reasons set forth above, we conclude that the part of Union
Proposal 1 providing that training opportunities not be diminished as a
result of the reorganization constitutes an appropriate arrangement and
is within the duty to bargain.
Order
The Agency shall upon request, or as otherwise agreed to by the
parties, bargain concerning Part 1 of Union's Proposal 1. /2/
Issued, Washington, D.C., December 15, 1986.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Opinion of Chairman Calhoun, Concurring in Part and Dissenting in Part
I concur in that part of the decision finding that Part 1 of Union
Proposal 1 directly interferes with management's right under section
7106(a)(2)(B) to assign work. I cannot agree, however, that Part 1 of
the proposal constitutes an appropriate arrangement within the meaning
of section 7106(b)(3).
For the Authority to consider whether a proposal is an appropriate
arrangement, a union must first demonstrate that employees have been or
will be adversely affected by management's exercise of its rights and
that the Union's proposal is intended to mitigate those adverse effects.
National Association of Government Employees, Local R14-87 and Kansas
Army National Guard, 21 FLRA No. 4, slip op. at 8 (1986). In cases
filed before our decision in Kansas Army National Guard, such as this
one, we will examine the record to determine whether any adverse effects
have been identified or whether such effects have been identified or
whether such effects are identifiable based upon the nature of the
matter in dispute.
The Union in this case has not identified any adverse effects flowing
from the reorganization to which Part 1 of Proposal 1 is related and
none are apparent from the record. Further, the Agency's statements
cited by the majority do not show that the reorganization will adversely
affect the amount of training opportunities available to employees.
Rather, the Agency's statements merely reflect the fact that, under law
and regulation, training paid for by an agency must be related to an
employee's duties. Since the reorganization may result in employees
performing new duties, the Agency may not be authorized to pay for the
exact same courses it provided before the reorganization. In the
absence of any showing that employees have been or will be adversely
affected, the proposal cannot be considered an "arrangement" designed to
mitigate adverse effects. As a result, we cannot determine whether the
proposed arrangement "excessively interferes" with the exercise of
management's rights. Accordingly, I disagree with that part of the
Majority Opinion finding Part 1 of Proposal 1 to be an appropriate
arrangement.
Issued, Washington, D.C., December 15, 1986.
/s/ Jerry L. Calhoun, Chairman
Union Proposal 1
(Part 2)
Training opportunities will not be diminished nor will previous
training be invalidated as a result of the reorganization. (Part 2 of
the proposal is underscored.)
The Agency contends that if Part 2 of Union Proposal 1 is intended to
prohibit the Agency from changing the duties of a position so that
qualifying training for the position would remain the same, the proposal
violates its rights to assign work and limits its ability to conduct a
reorganization in violation of management's rights to determine its
organization and the personnel by which agency operations will be
conducted. If the proposal is intended to prohibit the Agency from
changing the qualification requirements for higher level positions, the
Agency contends that the proposal violates its right under section
7106(a)(2)(C) to make selections for appointments and would affect
nonunit positions. The Union contends that the continuing validity of
previous training should not be affected by the type of reorganization
proposed by the Agency. It further argues that its proposal does not
prevent the Agency from changing position descriptions.
Majority Opinion
The Authority finds, in agreement with the Agency, that Part 2 of the
Union's proposal concerning the validity of previous training would
prevent the Agency from changing the job requirements of a specific
position as a result of the reorganization. That is, if certain
training had been required to qualify an employee to perform the duties
of a position prior to the reorganization, the proposal would require
the same training to still qualify an employee to perform the duties of
the position after the reorganization. Part 2 of the proposal would,
therefore, prohibit the Agency from assigning additional duties to an
employee or position if additional training were required to perform
those duties. Such a prohibition on the assignment of duties directly
interferes with management's right under section 7106(a)(2)(B) to assign
work and is outside the duty to bargain. See National Federation of
Federal Employees, Local 1622 and Department of the Army, Headquaters,
Vint Hill Farms Station, Warrenton, Virginia, 16 FLRA 578, 580-81 (1984)
(Union Provision 2).
In view of this determination, it is unnecessary for us to decide
whether Part 2 of Union Proposal 1 also violates the Agency's rights to
determine its organization, determine the personnel by which its
operations will be conducted, or make selections for positions. We also
need not decide whether the proposal would determine conditions of
employment of nonunit employees.
Union Proposal 2
In the event that any of the newly established organizational
components shall be identified for contracting out, and such
components have 10 (ten) or fewer employees in the new
organization but previously had been part of an activity of more
than 10, a cost-benefit analysis will be conducted and given to
the Union prior to impact bargaining and the signing of a
contract.
The Agency contends that Union Proposal 2 is unrelated to the adverse
impact on employees from the reorganization and, therefore, exceeds the
scope of its obligation to bargain concerning that impact. The Agency
further argues that the proposal violates its right under section
7106(a)(2)(B) of the Statute to make determinations with respect to
contracting out. It also contends that the proposal would require it to
undertake a cost-benefit analysis for units having ten or fewer
employees even though OMB Circular A-76, which governs contracting out
determinations, only requires such an analysis where more than ten
employees would be affected. The Agency also argues that providing the
Union with a copy of any cost-benefit analysis done by the Agency would
be relevant only to the decision to contract out itself and not to the
impact of that decision on employees. Finally, the Agency contends that
the proposal would require it to assign employees to conduct the
cost-benefit analysis in violation of its right to assign work under
section 7106(a)(2)(B) or to "undertake a work project" under section
7106(b)(1).
The Union contends that Proposal 2 is related to the adverse effect
on employees of the reorganization in that the reorganization resulted
in smaller work units and made certain units "commercial activities"
subject to being contracted out. The Union concedes that its proposal
requires more of the Agency than is required by Circular A-76, but
argues that the Circular does not prohibit the negotiation of additional
procedures. The Union claims that its proposal does not directly
interfere with the Agency's ability to make determinations with respect
to contracting out and, therefore, constitutes a negotiable procedure
within the meaning of section 7106(b)(2). The Union also disputes the
Agency's contentions that the proposal does not concern the impact of a
decision to contract out and that the proposal violates the Agency's
right to assign work.
Majority Opinion
1. The Agency's Assertions Concerning the Obligation to Bargain
The record in this case fails to provide a basis for substantiating
the Agency's assertion that Union Proposal 2 exceeds the scope of its
duty to bargain over the impact of the reorganization. See the
discussion at section II of this Decision. Factual issues in dispute
between the parties concerning the duty to bargain in the specific
circumstances of this case should be raised in other appropriate
proceedings.
2. The Union's Proposal Interferes with the Agency's Right to Make
Contracting Out Determinations
Union Proposal 2 would require the Agency to (1) conduct a
cost-benefit analysis as part of its process of determining whether to
contract out the function of an organizational component having ten or
fewer employees if that component had more than ten employees prior to
the reorganization; and (2) provide the Union with a copy of the
analysis prior to bargaining over the impact of the decision to contract
out and signing the contract. As for the latter point, the Agency
interprets the provision as requiring it to conduct the analysis and
engage in impact bargaining "prior to entering into an outside contract
for the performance of employee work." Agency Statement of Position at
8. The Union does not contradict the Agency's interpretation. We find
that the proposal is to the same effect as the proposal that the
Authority found to be outside the duty to bargain 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 574, 575-78 (1981) (Union Proposal 1), enforced sub nom.
National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d
886 (D.C. Cir. 1982).
The proposal in Homestead Air Force Base would have prohibited the
agency from contracting out work where it could be demonstrated that the
work could be performed more economically and effectively "in house,"
and required the agency to provide the union with "milestone charts"
concerning the feasibility of contracting out certain functions. The
Authority found that the first part of the proposal would place a
substantive limitation on management's right under section 7106(a)(2)(B)
to make determinations with respect to contracting out. The Authority
stated that, even if the agency were required to comply with the
proposed substantive limitation because it was also contained in OMB
Circular A-76, the proposal would nevertheless violate the agency's
rights by placing a contractual limitation on the exercise of those
rights.
As to the second part of the proposal in Homestead Air Force Base,
the Authority found that the "milestone charts" were an essential part
of the agency's deliberative process in making a contracting out
determination. Since the agency's right under section 7106(a)(2)(B) to
make determinations with respect to contracting out encompasses both the
deliberation process leading to the determination and the determination
itself, the Authority held that the second part of the proposal directly
interfered with the agency's right. Similarly, Union Proposal 2 here,
by requiring the Agency to conduct the cost-benefit analysis as part of
its process of determining whether to contract out certain functions,
and furnish a copy to the Union prior to making a contracting out
determination, would place a substantive restriction on the Agency's
exercise of its reserved right and interfere with the Agency's
deliberative process. Consequently, for the reasons set forth more
fully in Homestead Air Force Base, we find that Union Proposal 2 would
directly interfere with the Agency's right to make determinations with
respect to contracting out and is not a negotiable procedure under
section 7106(b)(2).
Member McKee disagrees with our conclusion that the portion of the
proposal requiring the Agency to furnish a copy of a cost-benefit
analysis to the Union is nonnegotiable. In our view, the parts of the
proposal concerning conducting the analysis and providing a copy of it
to the Union are inextricably linked. In fact, severing the parts of
the proposal could result in the Union negotiating for copies of
nonexistent reports. reports. Therefore, we believe that in this case
our colleague's concerns are hypothetical.
In view of this determination, we need not determine whether the
Union's proposal is also inconsistent with OMB Circular A-76 or with
management's rights to assign work or "undertake a work project."
Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
the petition for review as to Part 2 of Union Proposal 1 and as to Union
Proposal 2 is dismissed.
Issued, Washington, D.C., December 15, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Opinion of Member McKee
Union Proposal 1, Part 2
I disagree with the finding that part 2 of Proposal 1, which provides
that the previous training of employees will not be invalidated as a
result of the reorganization, would prevent the Agency from changing the
job requirements of a position after the reorganization. I also
disagree with the finding that the proposal would prohibit the Agency
from assigning additional duties to an employee or position if
additional training was required to perform those duties. In my view,
the plain language of the proposal does not support either finding.
Moreover, the Union expressly disavows any such intent. In its response
to the Agency's statement of position, the Union expressly maintains
that in the event that the Agency needed to change position
descriptions, the Agency could do so under the disputed proposal, even
if the change would invalidate the continued effectiveness of employees'
prior training. Union Response at 6. The Union also acknowledges
management's right to assign work, and contends that the proposal is not
intended to prevent the Agency from assigning duties after the
reorganization. Response at 6. Based on the Union's interpretation of
its proposal, which is fully consistent with the plain language, I find
that the proposal does not directly interfere with management's right to
assign work under section 7106(a)(2)(B) of the Statute. I conclude that
the proposal is within the duty to bargain.
Union Proposal 2
I concur in the preliminary conclusion that any factual issues
between the parties concerning the duty to bargain in this case should
be raised in other appropriate proceedings.
I also agree with the finding that by requiring the Agency to conduct
a cost-benefit analysis as part of its process of deciding whether to
contract out, the proposal would place a substantive limitation on
management's exercise of its right under section 7106(a)(2)(B) of the
Statute to make determinations with respect to contracting out. On that
basis, I concur in the conclusion that the proposal directly interferes
with management's right to make contracting out determinations and that
it is not a negotiable procedure under section 7106(b)(2) of the
Statute.
However, I must disagree with the separate conclusion of the majority
that the second part of the proposal, which would require the Agency to
provide the Union with a copy of a cost-benefit analysis, would
interfere with management's deliberative process in determining whether
to contract out. My reasons are as follows.
First, I disagree with the majority's finding that the disputed
portion of the proposal would have the same effect as Homestead Air
Force Base, 6 FLRA 574, 575-78 (1981) (Proposal 1). In Homestead, the
Authority found that part of the proposal which would have required the
agency to furnish the union with copies of its "milestone charts" was
outside the duty to bargain. The "milestone charts" in Homestead were
described as "internal management recommendations." 6 FLRA 577.
Clearly, "internal management recommendations" are an integral part of
management's deliverative process. In this case, however, the
cost-benefit analysis referred to is not an internal management
recommendation. Rather, it is the equivalent of the cost comparison
required in contracting out actions under Office of Management and
Budget (OMB) Circular A-76. Union Response to Agency Statement of
Position at 6-9. Recognizing that the contracting out contemplated by
the Union's proposal is not subject to the requirements of OMB Circular
A-76, it is still apparent that providing the Union with a copy of a
comparison of the estimate of the cost of Government performance of an
activity to the cost of performance by a prospective contractor is not
the same as providing the Union with an internal management
recommendation.
Moreover, the Authority has indicated in a number of contracting out
disputes that collective bargaining agreement provisions requiring the
agency to provide the union with certain information used by management
in the contracting out determination process, such as bid solicitation
packages and statements of work to be performed, were not inconsistent
with management's right to make such determinations under section
7106(a)(2)(B). U.S. Army Communications Command Agency, Redstone
Arsenal and American Federation of Government Employees, Local 1858, 23
FLRA No. 22, slip op. at 3 (1986); United States Army Communications
Command, Fort McClellan and Local No. 1941, American Federation of
Government Employees, AFL-CIO, 23 FLRA No. 23, slip op. at 3 (1986);
Department of the Army, Oakland Army Base and American Federation of
Government Employees, Local 1157, 23 FLRA No. 26, slip op. at 3 (1986).
I also disagree with the finding of the majority that the second part
of the proposal in dispute in this case would require the Agency to
furnish the Union with a copy of the cost-benefit analysis prior to
making any contracting out determination and, therefore, that like the
proposal in Homestead, the proposal in this case would directly
interfere with management's deliberative process. The proposal does not
require that a copy of an analysis be given to the Union prior to making
the contracting out decision. Rather, the proposal expressly requires
that the analysis be provided to the Union "prior to impact bargaining
and the signing of a contract" both of which events would occur after a
determination to contract out.
Finally, as the Union maintains in its response to the Agency's
statement of position, Response at 9, and as the Authority noted in its
decision in Homestead, 6 FLRA 578 n.6, the Union may be entitled to any
cost-benefit analysis under section 7114(b)(4)(B) of the Statute for
impact bargaining purposes, if the information is "necessary for full
and proper discussion, understanding and negotiation of subjects within
the scope of bargaining(.)"
For those reasons, I find that the second part of the proposal does
not substantively limit or in any way interfere with either management's
deliberative process or its ability to make contracting out
determinations. If the proposal had been limited to requiring the
Agency to provide the Union with a copy of a cost-benefit analysis in
the even that management decided to conduct such an analysis, the
proposal would, in my opinion, be within the duty to bargain. However,
as indicated above, since the second part of the proposal is not
severable from the first part and the first part is contrary to section
7106(a)(2)(B) of the Statute, the entire proposal must be found to be
nonnegotiable.
Issued, Washington, D.C., December 15, 1986.
/s/ Jean McKee, Member
--------------- FOOTNOTES$ ---------------
(1) The OPM regulation is set forth at 5 C.F.R. Section 432.204(b)
and provides that the notice period may be further extended only with
prior OPM approval.
(2) In finding the proposal to be within the duty to bargain the
Authority makes no judgment as to its merits.