31:0529(34)NG - AFGE Local 2052 and Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia -- 1988 FLRAdec NG



[ v31 p529 ]
31:0529(34)NG
The decision of the Authority follows:


 31 FLRA NO. 34
 31 FLRA 529

Date:             23 FEB 1988
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2052

                    Union

      and

DEPARTMENT OF JUSTICE,
BUREAU OF PRISONS,
FEDERAL CORRECTIONAL
INSTITUTION, PETERSBURG
VIRGINIA

                    Agency

Case No. O-NG-1410

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) and concerns
the negotiability of three Union proposals. Proposals 1 and 2
concern contracting out. Proposal 3 concerns an employee's
declining to perform a task reasonably perceived to pose imminent
danger of death or serious physical harm. We find that the first
sentence of Proposal 1 is within the duty to bargain because: (1)
it concerns a condition of employment of bargaining unit
employees; (2) OMB Circular A-76 is a "rule or regulation" within
the meaning of section 7103(a)(9)(C)(ii); (3) the first sentence
does not violate management's right to contract out under section
7106(a)(2)(B); and (4) it does not conflict with a
Government-wide regulation. The second sentence of Proposal 1,
however, is nonnegotiable because it violates management's right
to make contracting out decisions. Proposal 2, by placing certain
restrictions on the Agency's right to contract out work, also
violates management's right to contract out under the Statute
and, thus, is nonnegotiable. Proposal 3 constitutes an
appropriate arrangement for employees adversely affected by the
exercise of management's right to assign work and, thus, is
negotiable. 

     II. Threshold Issue

     The Agency and Union were engaged in negotiation of a local
supplemental agreement on October 27 and 28, 1986. During
negotiations, Agency representatives alleged that a number of
proposals were nonnegotiable. The Union representative requested
the Agency representative to initial those proposals which the
Agency alleged were nonnegotiable. The Union representative also
initialed the disputed proposals. One week later the Agency typed
the results of the negotiations, including the reasons for
declaring the proposals nonnegotiable, and forwarded the
information to the Union. On May 19, 1987, the Agency received a
letter from the Union requesting allegations of nonnegotiability
of the proposals. The Agency responded by advising the Union that
the Union had been advised of the Agency's allegations of
nonnegotiability at the conclusion of the negotiations.

     A. Position of the Parties

     The Agency argues that the Union's petition for review is
not properly before the Authority because it was untimely filed.
The Agency asserts that the Union's request for the Agency to
initial those proposals which the Agency had orally declared
nonnegotiable was sufficient to meet the Authority's requirement
for a "written" request and response as a necessary prerequisite
for a negotiability appeal.

     The Union argues that it has fully complied with the
Authority's rules governing negotiability appeals.

     B. The Petition is Timely

     The Union's petition was timely filed. Under section 2424.3
of our Regulations, a union has the right to file a negotiability
petition when it receives written allegations which were not
requested by the union. See, for example, American Federation of
Government Employees, National GSA Council (No. 236), Local 1497
and General Services Administration, Region 3, 24 FLRA  928, 929
(1986). However, a union is not required to file a petition in
such circumstances in order to preserve its right to appeal.

     A union also may initiate the appeals process by serving a
written request for allegations on the agency on a later date.
Id. If the agency does not provide the requested allegations, the
union may file a petition which is not subject to the time limits
in section 2424.3 of our Regulations. For example,
American Federation of Government Employees, AFL - CIO, Local
2494 and Strategic Weapons Facility Pacific, Bremerton,
Washington, 7 FLRA  590, 591 n.2 (1982).

     This situation occurred here. Although the Agency provided
the Union with written allegations of nonnegotiability months
prior to the Union's petition, the record indicates that these
allegations were not provided in response to a written Union
request. The Union did not appeal from these allegations. On a
later date the Union, in writing, requested the Agency's
allegations. The Agency's response did not include the requested
allegations. Since a petition for review is not subject to the
time limits of section 2424.3 in these circumstances, the Union
petition is timely. We decline to change this long-standing
practice as requested by the Agency.

     III. Proposals 1 and 2

     Proposal 1:

     Article V, Hours of Work, Section 7, Contracting Out

     Management agrees to comply with the provisions of OMB
Circular A-76 (and with any supplemental or superseding Circular
or directives) and with the negotiated agreement. Failure to
abide by these provisions will be grounds for an appeal of a
decision to contract out.

     Proposal 2:

     Article V, Hours of Work, Section 8, Contracting Out

     Pursuant to OMB Circular A-76, it is agreed that the Local
institution will not contract out solely to meet personnel
ceilings or to avoid salary limitations.

     A. Positions of the Parties

     The Agency contends that Proposals 1 and 2 are nonnegotiable
because contracting out of work does not concern conditions of
employment of bargaining unit employees. The Agency also claims
that OMB Circular A-76 does not limit management's right to make
contracting out determinations and is not a law within the
meaning of section 7103(a)(9) of the Statute. The Agency
asserts that the proposals interfere with management's right to
contract out work because the proposals permit an arbitrator to
substitute his judgment for that of the Agency in contravention
of section 7106(a)(2)(B) of the Statute. The Agency also claims
that the proposal would prevent management from "acting (at) all"
in granting contracts in pursuit of its right to contract out
work.

     The Union's position is that Proposal 1 does not violate
management's right to make contracting out determinations under
section 7106(a)(2)(B) of the Statute. The Union asserts that
Proposal 2 is not inconsistent with section 7106 of the Statute
because the proposal merely tracks the prohibition as stated in
the Circular. The Union contends that "there is no management
right to break rules, regulations or laws." Union's Response to
Agency's Statement of Position at 13.

     B. Analysis and Conclusions

     Whether Union Proposals 1 and 2 are negotiable depends,
first, on whether the proposals concern conditions of employment
of bargaining unit employees.

     The Agency argues that "the deliberative process management
goes through under A-76 in order to determine whether it should
'contract out,' and more particularly the accuracy of the
analytical tools it uses in arriving at such a decision, does not
concern 'conditions of employment.'" Agency's Statement of
Position at 6.

     We find that the Union's proposals regarding contracting out
of work concern conditions of employment of bargaining unit
employees. In American Federation of Statute County, and
Municipal Employees, Local 3097, and Department of Justice, 31
FLRA  No. 30  (1988), the Authority found that the Statute
supports a finding that matters relating to contracting out fall
within the scope of definition of "conditions of employment."
Id., slip op. at 3-11. The Authority further found in Department
of Justice that the decision to contract out particular library
functions or services clearly affected "conditions of employment"
of bargaining unit employees. The Authority noted that
contracting out of particular library functions or services would
result in those functions or services being performed by contract
personnel instead of bargaining unit employees, resulting
in a loss of bargaining unit positions and the possible release
of bargaining unit employees from Federal employment.

     Similarly, contracting out of work performed by bargaining
unit employees employed by the Agency in this case may result in
a loss of bargaining unit positions and the possible release of
bargaining unit employees from Federal employment. Accordingly,
for the reasons set forth more fully in Department of Justice,
Union Proposals 1 and 2 directly affect the "conditions of
employment" of bargaining unit employees. See National Treasury
Employees Union and Department of the Treasury, Internal Revenue
Service, 27 FLRA  976 (1987) (Proposal 1). We now turn to the
Agency's specific arguments concerning the individual
proposals.

     1. Proposal 1

     The first sentence of Union Proposal 1 would require the
Agency to comply with OMB Circular A-76, other applicable law and
regulations, and provisions of the collective bargaining
agreement relating to the contracting out of work. This part of
the proposal is to the same effect as Proposal 1 in Department of
Justice, which required the agency to adhere to the requirements
of applicable law and regulations relating to contracting out. In
that case, we rejected the agency's contentions that the proposal
was nonnegotiable. See also American Federation of Government
Employees, AFL - CIO, National Council of EEOC Locals and Equal
Employment Opportunity Commission, 10 FLRA  3 (1982) (Union
Proposal 1), enforced sub nom. EEOC v. FLRA,  744 F.2d 842 (D.C.
Cir. 1984), cert. dismissed, 106 S.Ct. 1678 (1986) (per curiam);
and Department of Health and Human Services v. FLRA,  822 F.2d
430 (4th Cir. 1987) petition for rehearing pending (argued en
banc Dec. 2, 1987) (proposal requested that the agency's
decisions regarding contracting out of work will be made in
accordance with the Circular unless application of the Circular
is prohibited or not required by the Circular).

     The Agency's arguments in this case are the same as those
rejected by the Authority in Department of Justice. There, we
held that the proposal was not inconsistent with management's
right to contract out because the proposal would only
contractually recognize external limitations on management's
right. We found the proposal constituted a negotiable procedure
under section 7106(b)(2) by which the agency exercises
its right to make determinations with respect to contracting out
under section 7106(a)(2)(B).

     In finding the proposal in Department of Justice to be
negotiable, we rejected the agency's claim that the proposal
would permit arbitrators to substitute their judgment for that of
the agency on contracting out determinations. See also
Headquarters, 97th Combat Support Group (SAC), Blytheville Air
Force Base, Arkansas and American Federation of Government
Employees, AFL - CIO Local 2840, 22 FLRA  656, 661-62 (1986). We
also rejected the argument that permitting arbitral review of the
agency decisions to contract out would result in such delay as to
prevent the agency from exercising its right to contract out. We
reject the same argument in this case. The Agency has failed to
provide any support for its contention that permitting arbitral
review of decisions to contract out would prevent the Agency from
exercising its right to contract out. Thus, as in Department of
Justice, we find that the first sentence of Proposal 1 is a
negotiable procedure under section 7106(b) of the Statute.

     We rejected the agency's arguments in Department of Justice
that the Circular is not a law, rule or regulation within the
meaning of section 7103(a)(9)(C)(ii); that the Circular is not
grievable or arbitrable under section 7121; that the proposal was
nonnegotiable under section 7117(a) of the Statute because it
conflicted with the exclusive appeal procedures contained in OMB
Circular A-76. We also reject these same arguments in this case.
As noted in Department of Justice, the Circular and its
Supplement constitute an official declaration of policy
concerning contracting out which is binding on the agencies and
officials in the executive branch of the Federal Government and,
therefore, is a rule and regulation within the meaning of section
7103(a)(9)(C)(ii) of the Statute. The legislative history of the
Statute indicates that Congress intended to include within
coverage of a negotiated grievance procedure matters related to
the exercise of management's 'rights under section 7106(a).
Moreover, the first sentence of Proposal 1 neither limits the
right of independent contractors or their employees to challenge
contracting out determinations under the procedure of the
Supplement nor creates any new right of appeal. The right to file
grievances concerning contracting out decisions is created by the
Statute. Nothing in OMB Circular A-76 restricts the statutory
right to file such a grievance.

     Based on the foregoing analysis, and the reasons more fully
set forth in Department of Justice, the first sentence of Union
Proposal 1 is negotiable and is within the duty to bargain under
the Statute.

     We find, however, that the second sentence of this proposal
violates management's right to contract out and is nonnegotiable.
The second sentence focuses on the decision to contract out
rather than on the procedures and processes which management must
follow in reaching that decision. Thus, it interferes with
management's substantive authority to contract out rather than
providing a procedure for enforcing the Statute's requirement
that contracting out decisions must be made in accordance with
applicable laws. See EEOC v. FLRA,  744 F.2d 842 at 849-51 (D.C.
Cir. 1984), cert. dismissed, 106 S.Ct. 1678 (1986) (per
curiam).

     2. Proposal 2

     Union Proposal 2 would preclude the Agency from contracting
out solely to meet personnel ceilings or to avoid salary
limitations. This restriction is contained in section 7c(6) of
the Circular. By incorporating the restriction in the contract,
the proposal would require management to comply with the
provision even if the Circular was revised or eliminated.
Therefore, the proposal would impose an independent contractual
requirement on management's reserved discretion with respect to
contracting out. The Agency would be required to comply with the
limitation even if the limitation was not in accordance with
applicable external requirements. Accordingly, Proposal 2
directly interferes with the Agency's right to make
determinations regarding contracting out of work and is outside
the duty to bargain. See 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, 575-77 (1981) (Proposal 1)
aff'd sub nom. National Federation of Federal Employees, Local
1167 v. FLRA,  681 F.2d 886 (D.C. Cir. 1982).

     IV. Proposal 3

     Article V, Section 9, Imminent Danger Situations

     Imminent Danger Situations. The term "imminent danger" means
exposure to any hazardous material  or condition which
does not involve inmates or control of inmates in the workplace.
Imminent danger conditions are such that the danger exists which
could reasonably be expected to cause death or serious physical
harm, immediately or before, the imminence of such danger can be
eliminated through normal procedures.

     In the case of imminent danger situations, the employer
shall make reports by the most expeditious means available. The
employee has a right to decline to perform his/her assigned task
because of a reasonable belief that under the circumstances, the
task poses an imminent danger of death or serious bodily harm.

     A. Positions of the Parties

     The Agency contends that the proposal is nonnegotiable
because the parties have already negotiated a master agreement
concerning matters relating to "health and safety matters" and,
pursuant to that agreement, the parties are precluded from
negotiating over the matter at the local level. As to the merits,
the Agency contends that the proposal interferes with its right
to take disciplinary action against employees and to assign work
under section 7106(a)(2)(B) of the Statute.

     The Union argues that Union Proposal 3 does not conflict
with management's right to assign work but, in any event, is an
appropriate arrangement under section 7106(b)(3) of the
Statute.

     B. Analysis and Conclusions

     We find that the issue of whether the Union waived its right
to negotiate over this proposal on the local level is not
appropriately before us. 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 such as unfair
labor practice proceedings. See American Federation of State,
County and Municipal Employees, Local 3097 and Department of
Justice, 24 FLRA  453, 453-54 (1986).

     As to the merits, we find that the proposal directly
interferes with the right to assign work. Based on the wording of
the proposal and the Union's explanation of its intent,
the proposal would prevent the Agency from assigning work to
employees in circumstances where they reasonably believe that the
duties present an imminent risk of death or serious bodily harm.
Proposals which prescribe preconditions on management's ability
to require employees to perform particular duties directly
interfere with management's right to assign work. See American
Federation of Government Employees and Army and Air Force
Exchange Service, 30  FLRA  909 (1988) (Provision 1); and
National Federation of Federal Employees, Local 29 and Department
of Defense, HQ, U.S. Military Entrance Processing Command, 29
FLRA  726 (1987) (Provision 2).

     In Army and Air Force Exchange Service and U.S. Military
Entrance Processing Command, the Authority found that provisions,
which prevented the agency from assigning work to employees in
circumstances where they reasonably believed that the duties
presented an imminent risk of death or serious bodily harm
coupled with an insufficient time within which to abate the
hazard, conflicted with the agency's right to assign work under
7106(a)(2)(B). Since Proposal 3 likewise would prevent the Agency
from assigning work to employees under the circumstances stated
in the proposal, we find for the reasons stated in Army and Air
Force Exchange Service and U.S. Military Entrance Processing
Command that it directly interferes with the right to assign
work. Moreover, as the Authority noted in Army and Air Force
Exchange Service and U.S. Military Entrance Processing Command,
the fact that the proposal may reflect the wording of an
Occupational Safety and Health Administration (OSHA) regulation,
29 C.F.R. 1960.46(a), does not make it negotiable. The proposal
would require the Agency to comply with the restriction on its
right to assign work during the term of the contract even if the
regulatory requirement was revised or eliminated. See Homestead,
6 FLRA  574, 577 (1981) (Proposal 1).

     We find that Union Proposal 3 does not prevent management
from disciplining employees. The proposal would permit the Agency
to institute disciplinary action against employees. If the Agency
institutes disciplinary action against an employee, the proposal
enables the employee or the Union to dispute the disciplinary
action, through the parties' negotiated grievance procedure. See
American Federation of Government Employees and Army and Air
Force Exchange Service, 30  FLRA  909 (1988) (Provision 1).
Consequently, this proposal is distinguishable from 
Proposals 26-28 in International Plate Printers, Die Stampers and
Engravers Union of North America, AFL - CIO, Local 2 and
Department of the Treasury, Bureau of Engraving and Printing,
Washington, D.C., 25 FLRA  113 (1987). In Department of the
Treasury, 25 FLRA  at 135-37, we found that the provisions
stating that an employee "shall not be subject to disciplinary
action" did not concern an employee's defense to discipline but
precluded management from instituting discipline against
employees.

     Because Proposal 3 conflicts with management's right to
assign work under section 7106(a)(2)(B), it is nonnegotiable
unless it constitutes a negotiable appropriate arrangement under
section 7106(b)(3) of the Statute. See National Association of
Government Employees, Local R14-87 and Kansas Army National
Guard, 21 FLRA  24 (1986). As explained in Kansas Army National
Guard, in order to determine whether the provision constitutes a
negotiable appropriate arrangement, we determine whether the
provision is intended to be an arrangement for employees who are
adversely affected by the exercise of management's statutory
rights. If the provision is so intended, we then determine
whether it is inappropriate because it excessively interferes
with the exercise of management's rights.

     We conclude that this proposal is intended to be an
arrangement for employees who may be adversely affected by the
exercise of management's right to assign work. Based on the
Union's undisputed explanation,the proposal is intended to
protect employees from the adverse impact of the assignment of
duties which would seriously endanger their health and safety.

     In deciding whether the intended arrangement is appropriate,
we must determine whether its negative impact on management's
right to assign work is "excessive" when weighed against the
intended benefit to adversely affected employees. By enabling
employees who reasonably perceive their work situations to
present serious and life-threatening conditions, Proposal 3
clearly benefits employees. Since the proposal applies in a
narrowly defined set of circumstances and does not prevent
management from disciplining employees, we find that it does not
excessively interfere with management's rights.

     In Army and Air Force Exchange Service and U.S. Military
Entrance Processing Command, the Authority found that the
provisions constituted negotiable appropriate 
arrangements under section 7106(b)(3) of the Statute. In so
ruling, we noted that under the provisions not all perceived
threats to employee health and safety were sufficient to justify
a decision by an employee to stop work. Distinguishing American
Federation of Government Employees, AFL - CIO, Local 1770 and
Department of the Army, Fort Bragg Dependent Schools, Fort Bragg,
North Carolina, 28 FLRA  493, 505-09 (1987) (Provision 3)
petition for review filed sub nom. Department of the Army, Fort
Bragg Dependent Schools, Fort Bragg, North Carolina v. FLRA,  No.
87-2661 (4th Cir. September 22, 1987) (provision permitting
employees to refuse work when they felt in danger was found to be
inconsistent with 29 C.F.R. 1960.46(a)), we noted in Army and Air
Force Exchange Service that the provisions did not protect
employees who felt that they were in danger where there was no
clear evidence to support that conviction. We noted that the
provisions required that there be facts which would support a
reasonable belief that the threat (1) is imminent; (2) poses a
risk of serious bodily harm or is life-threatening; and (3)
cannot be abated through normal procedures. We concluded that, on
balance, the benefit afforded by the provisions to employees who
may be required to work in situations where their health and
safety is seriously threatened outweighs the interference to
management's right to assign work. Consequently, we found that
the provisions constituted negotiable appropriate arrangements
under section 7106(b)(3) of the Statute.

     For the reasons stated in Army and Air Force Exchange
Service and U.S. Military Entrance Processing Command, Proposal 3
is a negotiable appropriate arrangement. Under the proposal there
must be facts which would support a reasonable belief that the
threat is imminent, that it poses a risk of serious bodily harm
or is life-threatening, and that there is insufficient time
within which to eliminate the hazard. The proposal would restrict
the Agency's ability to assign work only in limited
circumstances. Although the benefit afforded employees by
Proposal 3 would interfere with management's right to assign
work, that interference is, on balance, not excessive. The
proposal concerns a matter of great importance to the hea