American Federation of Government Employees, Local 3403, AFL-CIO (Union) and National Science Foundation, Washington, DC (Agency)
[ v06 p669 ]
06:0669(114)NG
The decision of the Authority follows:
6 FLRA No. 114
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3403
Union
and
NATIONAL SCIENCE FOUNDATION,
WASHINGTON, D.C.
Agency
Case No. O-NG-231
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
U.S.C. 7101-7135).
DURING THE TERM OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, THE
AGENCY HAD FORWARDED A PROPOSED CIRCULAR ON "CONTRACTING OUT" TO THE
UNION FOR REVIEW. IN RESPONSE, THE UNION SUBMITTED SEVERAL PROPOSALS,
THREE OF WHICH ARE IN DISPUTE HEREIN, TO REPLACE SPECIFIC PROVISIONS OF
THE PROPOSED CIRCULAR. THUS, THE ISSUE PRESENTED TO THE AUTHORITY IS
THE NEGOTIABILITY OF THE FOLLOWING UNION PROPOSALS: /1/
UNION PROPOSALS 1 AND 2
UNION PROPOSAL 1
5. SCOPE. THIS CIRCULAR APPLIES TO ALL INDIVIDUAL GOVERNMENT
COMMERCIAL OR INDUSTRIAL
ACTIVITIES (EXCEPT GOVERNMENTAL FUNCTIONS) AND TO ALL COMMERCIAL OR
INDUSTRIAL CONTRACTS WHICH
HAVE ANNUAL COSTS OF $5,000 OR MORE. A "GOVERNMENT COMMERCIAL OR
INDUSTRIAL ACTIVITY" IS (AS
IN MANAGEMENT DRAFT).
UNION PROPOSAL 2
7. INVENTORY AND REVIEW OF COMMERCIAL AND INDUSTRIAL ACTIVITIES
A. INVENTORIES. A COMPLETE INVENTORY OF INDIVIDUAL
FOUNDATION-OPERATED COMMERCIAL OR
INDUSTRIAL ACTIVITIES (AS DEFINED IN PARAGRAPH 5) WILL BE COMPILED
AND UPDATED BY DPM, IN
CONJUNCTION WITH DFA. DPM, IN CONJUNCTION WITH DGC, WILL PREPARE AND
MAINTAIN AN INVENTORY OF
ALL COMMERCIAL AND INDUSTRIAL CONTRACTS IN EXCESS OF $100,000 A YEAR.
ACTIVITIES WHICH HAVE
BEEN CONVERTED FROM IN-HOUSE TO CONTRACT PERFORMANCE WILL BE SO
IDENTIFIED.
. . . .
B. (3) AFTER THE INITIAL REVIEW, ACTIVITIES WILL BE REVIEWED
ANNUALLY.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSALS ARE OUTSIDE THE DUTY TO
BARGAIN UNDER THE STATUTE BECAUSE THEY DO NOT CONCERN MATTERS WHICH ARE
CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES.
OPINION
CONCLUSION AND ORDER: THE UNION'S PROPOSALS ARE OUTSIDE THE DUTY TO
BARGAIN BECAUSE THEY DO NOT CONCERN MATTERS WHICH ARE CONDITIONS OF
EMPLOYMENT OF BARGAINING UNIT EMPLOYEES. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10
(1981)), IT IS ORDERED THAT THE PETITION FOR REVIEW INSOFAR AS IT
APPLIES TO THESE PROPOSALS BE, AND IT HEREBY IS, DISMISSED.
REASONS: THE SCOPE OF THE DUTY TO BARGAIN UNDER THE STATUTE EXTENDS
TO CONDITIONS OF EMPLOYMENT, I.E., PERSONNEL POLICIES, PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS OF BARGAINING UNIT EMPLOYEES. /2/
FOR EXAMPLE, COMPARE WHERE THE AUTHORITY HAS FOUND A PROPOSAL WHICH
CONCERNED A MATTER AFFECTING "THE WORK SITUATION AND EMPLOYMENT
RELATIONSHIP" OF BARGAINING UNIT EMPLOYEES TO BE WITHIN THE DUTY TO
BARGAIN. NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE
SERVICE, 3 FLRA NO. 112(1980). SEE ALSO AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 604, 606(1980), ENFORCED
AS TO OTHER MATTERS SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR
RELATIONS AUTHORITY, . . . F.2D . . . (D.C. CIR. 1981). WHEREAS,
PROPOSALS WITH RESPECT TO MATTERS CONCERNING NON-BARGAINING UNIT
EMPLOYEES DO NOT CONCERN CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES AND
ARE NOT WITHIN THE DUTY TO BARGAIN. SEE, E.G., NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1451 AND NAVAL TRAINING CENTER, ORLANDO,
FLORIDA, 3 FLRA NO. 14(1980), ENFORCED, 652 F.2D 191 (D.C. CIR. 1981);
NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. DEPARTMENT OF LABOR, WASHINGTON,
D.C., 3 FLRA NO. 44(1980); AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2 AND DEPARTMENT OF THE ARMY, MILITARY DISTRICT OF
WASHINGTON, 4 FLRA NO. 60(1980).
BASED UPON THE RECORD HEREIN, THE AUTHORITY HAS DETERMINED THAT UNION
PROPOSALS 1 AND 2 FALL WITHIN THE CATEGORY OF PROPOSALS DESCRIBED IN THE
CASES CITED ABOVE AS NOT CONCERNING CONDITIONS OF EMPLOYMENT. UNION
PROPOSAL 1 SETS FORTH THE UNION'S PROPOSAL REGARDING THE GENERAL EXTENT
OF THE AGENCY'S CIRCULAR ON "CONTRACTING OUT," I.E., ITS "SCOPE" OF
APPLICATION. UNION PROPOSAL 2, IN ESSENCE, CONCERNS AGENCY PREPARATION,
MAINTENANCE, AND REVIEW OF RECORDS OF WORK THE AGENCY HAS DETERMINED TO
PERFORM EITHER IN-HOUSE OR BY CONTRACTING OUT. NEITHER PROPOSAL ON ITS
FACE INVOLVES PERSONNEL POLICIES, PRACTICES, OR MATTERS AFFECTING
WORKING CONDITIONS OF UNIT EMPLOYEES. SIMILARLY, AS TO THE EFFECT OF
THE PROPOSALS, NO DIRECT RELATIONSHIP IS APPARENT BETWEEN THEM AND
ACTIONS AFFECTING UNIT EMPLOYEES. THAT IS, THERE IS NOTHING IN UNION
PROPOSAL 1 TO INDICATE THAT THE "SCOPE" OF THE CIRCULAR RELATES TO
CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES, AND THE UNION HAS NOT
PROVIDED THE AUTHORITY WITH ANY EXPLANATION AS TO THE INTENT OF THE
PROPOSAL WHICH WOULD SUPPORT A FINDING THAT SUCH A RELATIONSHIP EXISTS.
SIMILARLY, UNION PROPOSAL 2 RELATES ONLY TO INTERNAL AGENCY
RECORDKEEPING CONCERNING ACTIONS THE AGENCY WOULD ALREADY HAVE TAKEN
WITH RESPECT TO CONTRACTING OUT.
MANAGEMENT HAS THE RIGHT UNDER SECTION 7106(A)(2)(B) OF THE STATUTE
/3/ TO MAKE DETERMINATIONS WITH RESPECT TO CONTRACTING OUT. WHILE
MANAGEMENT'S DECISIONS REGARDING THE CONTRACTING OUT OF WORK MAY
ULTIMATELY AFFECT BARGAINING UNIT EMPLOYEES, THE PREPARATION,
MAINTENANCE, AND REVIEW OF AGENCY RECORDS WOULD HAVE NO SUCH EFFECT.
THEREFORE, IN THE ABSENCE OF ANY DEMONSTRATION IN THE RECORD OF A DIRECT
RELATIONSHIP BETWEEN UNION PROPOSALS 1 AND 2 AND UNIT EMPLOYEES' WORK
SITUATIONS OR EMPLOYMENT RELATIONSHIPS, THE AUTHORITY MUST FIND THAT THE
PROPOSALS DO NOT CONCERN MATTERS WHICH ARE "CONDITIONS OF EMPLOYMENT"
WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE STATUTE. THEREFORE,
THE AGENCY IS NOT OBLIGATED TO BARGAIN WITH RESPECT TO THEM.
THIS DECISION DOES NOT PRECLUDE THE UNION FROM PROPOSING MATTERS IN
CONNECTION WITH MANAGEMENT'S EXERCISE OF ITS RIGHT TO CONTRACT OUT WHICH
WOULD AFFECT WORKING CONDITIONS OF BARGAINING UNIT EMPLOYEES AND WHICH
WOULD NOT DIRECTLY INTERFERE WITH MANAGEMENT'S RIGHT UNDER SECTION
7106(A)(2)(B) TO MAKE DETERMINATIONS WITH RESPECT TO CONTRACTING OUT.
PROPOSALS FOR PROCEDURES WHICH MANAGEMENT WILL FOLLOW IN MAKING
DETERMINATIONS WITH RESPECT TO CONTRACTING OUT, OR FOR APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE
OF THIS RIGHT, WOULD BE NEGOTIABLE PURSUANT TO SECTION 7106(B)(2) AND
(3) UNLESS THEY PREVENT MANAGEMENT FROM ACTING AT ALL TO EXERCISE ITS
RIGHT. IN THIS REGARD, 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 NO. 105
(1981), IN WHICH THE AUTHORITY FOUND NEGOTIABLE A PROPOSAL REQUIRING AN
AGENCY TO CONSIDER ATTRITION PATTERNS AND TO CONSIDER RESTRICTING NEW
HIRES IN ORDER TO MINIMIZE ANY ADVERSE IMPACT ON CAREER EMPLOYEES OF
MANAGEMENT'S DECISION TO CONTRACT OUT. /4/
UNION PROPOSAL 3
8. APPEALS. THE FOUNDATION HAS ESTABLISHED A PROCEDURE FOR AN
INFORMAL ADMINISTRATIVE
REVIEW OF DETERMINATIONS MADE UNDER THIS CIRCULAR AND OMB CIRCULAR
A-76. THIS PROCEDURE WILL
ONLY BE USED TO RESOLVE QUESTIONS OF THE DETERMINATION BETWEEN
CONTRACT AND IN-HOUSE
PERFORMANCE, AND WILL NOT APPLY TO QUESTIONS CONCERNING AWARD TO ONE
CONTRACTOR IN PREFERENCE
TO ANOTHER CONTRACTOR. THE APPEALS PROCEDURE IS TO PROVIDE AN
ADMINISTRATIVE SAFEGUARD TO
ASSURE THAT THE DECISIONS ARE FAIR, EQUITABLE, AND IN ACCORDANCE WITH
ESTABLISHED POLICY. DGC
WILL MAKE AVAILABLE DETAILED ANALYSES OF REVIEWS TO ANY INTERESTED
PARTIES. THIS APPEALS
PROCEDURE IS NOT A SUBSTITUTE FOR ANY RIGHT ANY PARTY MIGHT HAVE
UNDER LAW OR CONTRACT TO
NEGOTIATE OR ARBITRATE CONCERNING DISPUTES RELATED TO THESE
DECISIONS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS INCONSISTENT WITH
SECTION 7106(A)(2)(B) OF THE STATUTE /5/ AND, THEREFORE, IS OUTSIDE THE
DUTY TO BARGAIN.
OPINION
CONCLUSION AND ORDER: THE UNION'S PROPOSAL IS INCONSISTENT WITH
MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(2)(B) OF THE STATUTE TO MAKE
DETERMINATIONS WITH RESPECT TO CONTRACTING OUT AND, THEREFORE, IS
OUTSIDE THE DUTY TO BARGAIN. ACCORDINGLY, PURSUANT TO SECTION 2424.10
OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
ORDERED THAT THE PETITION FOR REVIEW OF THE DISPUTED PROPOSAL BE, AND IT
HEREBY IS, DISMISSED.
REASONS: THE AGENCY INTERPRETS THIS PROPOSAL TO MEAN THAT MANAGEMENT
DETERMINATIONS WITE RESPECT TO CONTRACTING OUT MAY BE CHALLENGED UNDER
THE PARTIES' NEGOTIATED GRIEVANCE PROCEDURE. SINCE THE LANGUAGE OF THE
PROPOSAL IS SUBJECT TO THIS INTERPRETATION AND THE UNION DOES NOT
CONTROVERT IT, THE AGENCY'S INTERPRETATION IS ADOPTED FOR PURPOSES OF
THIS DECISION.
IN THIS REGARD, THE AUTHORITY HELD IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1968 AND DEPARTMENT OF
TRANSPORTATION, SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION, MASSENA,
NEW YORK, 5 FLRA NO. 14(1981) THAT NO GRIEVANCE PROCEDURE COULD BE
NEGOTIATED WHICH WOULD DENY THE AUTHORITY OF AN AGENCY TO EXERCISE ITS
MANAGEMENT RIGHTS UNDER SECTION 7106. THUS, THE AUTHORITY FOUND
NONNEGOTIABLE A PROPOSAL WHICH PROVIDED FOR GRIEVANCES CHALLENGING
MANAGEMENT'S EXERCISE OF ITS RIGHTS TO DIRECT EMPLOYEES AND TO ASSIGN
WORK, UNDER SECTION 7106(A)(2)(A) AND (B), THROUGH IDENTIFICATION OF
CRITICAL ELEMENTS AND ESTABLISHMENT OF PERFORMANCE STANDARDS. IN THIS
REGARD, THE AUTHORITY FOUND THAT, BY SUBJECTING THE AGENCY'S EXERCISE OF
THOSE RESERVED RIGHTS TO ARBITRAL REVIEW AND THEREFORE TO THE
POSSIBILITY OF ARBITRATORS SUBSTITUTING THEIR JUDGMENT FOR THAT OF THE
AGENCY WITH RESPECT THERETO, THE PROPOSAL CONFLICTED WITH SECTION 7106.
SIMILARLY, IN THE PRESENT CASE, SECTION 7106(A)(2)(B) OF THE STATUTE
RESERVES TO MANAGEMENT THE RIGHT TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND THE UNION'S PROPOSAL PROVIDES FOR GRIEVANCES
CHALLENGING SUCH DETERMINATIONS. THEREFORE, FOR THE REASONS SET FORTH
IN SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION, SUPRA, THE UNION'S
PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN. /6/
ISSUED, WASHINGTON, D.C., SEPTEMBER 24, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ THE UNION'S APPEAL ORIGINALLY INCLUDED ANOTHER PROPOSAL ENTITLED
"POLICY." BASED ON THE RECORD, THE PARTIES SUBSEQUENTLY REACHED
AGREEMENT WITH RESPECT TO A MODIFIED "POLICY" PROPOSAL. THEREFORE, ANY
DISPUTE REGARDING THE QUESTION OF WHETHER THE ORIGINAL "POLICY" PROPOSAL
IS WITHIN THE PARTIES' DUTY TO BARGAIN HAS BEEN RENDERED MOOT AND THE
AUTHORITY WILL NOT DEAL WITH THAT PROPOSAL HEREIN.
/2/ THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE IS ESTABLISHED IN
SECTION 7114, WHICH PROVIDES, IN RELEVANT PART:
SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
. . . .
(A)(4) ANY AGENCY AND ANY EXCLUSIVE REPRESENTATIVE IN ANY APPROPRIATE
UNIT IN THE AGENCY,
THROUGH APPROPRIATE REPRESENTATIVES, SHALL MEET AND NEGOTIATE IN GOOD
FAITH FOR THE PURPOSES
OF ARRIVING AT A COLLECTIVE BARGAINING AGREEMENT. . .
SECTION 7114(B)(2) FURTHER STATES THAT THE DUTY TO NEGOTIATE IN GOOD
FAITH SHALL INCLUDE THE OBLIGATION "TO DISCUSS AND NEGOTIATE ON ANY
CONDITION OF EMPLOYMENT." "COLLECTIVE BARGAINING" AND "CONDITIONS OF
EMPLOYMENT" ARE DEFINED IN SECTION 7103(A) AS FOLLOWS:
SEC. 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
. . . .
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN GOOD-FAITH EFFORT
TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF EMPLOYMENT
AFFECTING SUCH EMPLOYEES
. . . ;
. . . .
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS . . . (.)
/3/ SECTION 7106(A)(2)(B) PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
AGENCY--
. . . .
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
. . . .
(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO
DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED(.)
/4/ IN VIEW OF OUR DECISION THAT THE PROPOSALS DO NOT CONCERN
CONDITIONS OF EMPLOYMENT, THE AUTHORITY FINDS IT UNNECESSARY TO CONSIDER
THE AGENCY'S ALLEGATIONS THAT THE PROPOSALS ARE OUTSIDE THE DUTY TO
BARGAIN BASED UPON INCONSISTENCY WITH LAW AND/OR REGULATION.
/5/ SEE NOTE 3, SUPRA.
/6/ ACCORDINGLY, THE AUTHORITY FINDS IT UNNECESSARY TO CONSIDER THE
ADDITIONAL ALLEGATIONS OF THE AGENCY CONCERNING THE NONNEGOTIABILITY OF
THE PROPOSAL.