24:0453(49)NG - AFSCME Local 3097 and Justice -- 1986 FLRAdec NG



[ 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