30:0794(92)NG - AFGE Local 738 and Army, Fort Leavenworth, KS -- 1987 FLRAdec NG



[ v30 p794 ]
30:0794(92)NG
The decision of the Authority follows:


30 FLRA NO. 92
30 FLRA 794

31 DEC 1987

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO,  LOCAL 738

                            union



      andDEPARTMENT OF THE ARMY
FORT LEAVENWORTH,  KANSAS

                            Agency

Case No. O-NG-1395

DECISION AND ORDER ON NEGOTIABILITY ISSUES

     I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor - Management Relations Statute (the Statute). The dispute
concerns the negotiability of one proposal which the Union
presented during impact and implementation bargaining. The
proposal concerns the performance of a management study by the
Agency. Based on the following reasons, we find that the proposal
is not sufficiently specific to enable us to rule on its
negotiability.

     II. Background

     The Agency conducted a commercial activity study to
determine whether a certain function should be contracted out. As
part of the study, it developed a "most efficient organization"
(MEO) structure. As a result of the study, the Agency decided not
to contract out the work in question. Instead, the Agency
implemented the MEO resulting in one bargaining unit position
being "cancelled" and one employee being reassigned. The Agency
advised the Union of the change and the parties entered into
impact and implementation bargaining. The Union offered the
following proposal which the Agency asserts is nonnegotiable.

     III. The Proposal

     That a new management study be performed and the most
efficient organization (MEO) revalidated. After revalidation, the
MEO positions are to be reviewed by a classifier and
reclassified, as appropriate.

     A. Positions of the Parties

     The Agency argues, as a threshold matter, that the Union's
petition for review fails to meet the requirements of 5 C.F.R.
2424.4 because the Union failed to state how an employee was
adversely affected or how the proposal relates to the "affected
employee."

     As to the merits, the Agency contends that the proposal is
not a condition of employment under section 7103(a)(14)(B) of the
Statute because it concerns the classification of employees.
Further, the Agency contends that, as the MEO structure was
developed as part of its study to determine whether to contract
out work, the proposal interferes with its right to make
determinations with respect to contracting out under section
7106(a)(2)(B) of the Statute, and conflicts with section 7101(b)
which provides that the Statute be interpreted consistent with
the requirement of an effective and efficient Government. The
Agency contends further that the proposal interferes with its
right to assign work under section 7106(a)(2)(B) of the Statute.
Lastly, the Agency argues that the proposal is neither a
procedure nor an appropriate arrangement.

     The Union contends that the proposal is negotiable under
section 7106(b)(2) and (3) of the Statute as procedures and
appropriate arrangements for employees adversely affected by the
exercise of management rights.

     B. Analysis and Conclusion

     The proposal is not sufficiently specific in content to
enable us to make a negotiability determination. From the
proposal and the parties' statements it is unclear as to the
nature or type of study which the Union seeks to have the Agency
undertake. The Authority has found that proposals which require
an agency to conduct a cost-benefit analysis as part of its
process of determining whether to contract out certain functions
place substantive restrictions on the agency's exercise of its
reserved right. See American Federation of State, County and
municipal Employees, Local 3097 and Department of Justice, 24 FLRA  453 (1986) (Proposal 2; Member McKee dissenting as to
other matters), and American Federation of Government Employees,
Local 225, AFL - CIO and Department of the Army, U.S. Army
Armament Research and Development Command, Dover, New Jersey, 17
FLRA  417, 418 (1985)(Proposals 1 and 2). On the other hand, if
the Union's proposal only requires management to