08:0679(117)NG - IAM Local 2424 and Army, Aberdeen Proving Ground, MD -- 1982 FLRAdec NG

 8 FLRA No. 117
 
 INTERNATIONAL ASSOCIATION OF MACHINISTS
 AND AEROSPACE WORKERS, LOCAL 2424
 Union
 
 and
 
 DEPARTMENT OF THE ARMY
 ABERDEEN PROVING GROUND, MARYLAND
 Agency
 
                                            Case No. O-NG-383
 
                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),
 AND RAISES ISSUES CONCERNING THE NEGOTIABILITY OF SIX UNION PROPOSALS.
 UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
 CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
                          UNION PROPOSALS 1 AND 2
 
    ARTICLE 28-- UNIT WORK
 
    C.  MILITARY PERSONNEL WILL NOT PERFORM BARGAINING UNIT WORK WHICH
 HAS BEEN HISTORICALLY
 
    PERFORMED BY THE BARGAINING UNIT EMPLOYEES.
 
    D.  NORMALLY SUPERVISORS WILL DIRECT THE WORK FORCE AND WILL NOT
 PERFORM BARGAINING UNIT
 
    WORK EXCEPT IN THE CASE OF INSTRUCTING, RESEARCHING, OR AN EMERGENCY.
 
    THE LITERAL LANGUAGE OF THE UNION'S PROPOSALS WOULD PREVENT
 MANAGEMENT FROM ASSIGNING ANY WORK TO MILITARY PERSONNEL WHICH
 HISTORICALLY HAS BEEN PERFORMED BY BARGAINING UNIT EMPLOYEES, AND WOULD
 PREVENT MANAGEMENT FROM ASSIGNING SUCH WORK TO SUPERVISORS EXCEPT FOR
 INSTRUCTION AND RESEARCH WORK OR WHERE AN EMERGENCY EXISTS.  IN NATIONAL
 ASSOCIATION OF AIR TRAFFIC SPECIALISTS AND DEPARTMENT OF TRANSPORTATION,
 FEDERAL AVIATION ADMINISTRATION, 6 FLRA NO. 106(1981), THE AUTHORITY
 DETERMINED THAT PROPOSALS WHICH WOULD LIMIT MANAGEMENT'S RIGHT TO ASSIGN
 BARGAINING UNIT WORK VIOLATED SECTION 7106(A)(2)(B) OF THE STATUTE AND
 HENCE WAS NONNEGOTIABLE.  SUCH CONCLUSION IS EQUALLY APPLICABLE TO
 PROPOSALS 1 AND 2 HEREIN, WHICH ARE THEREFORE OUTSIDE THE DUTY TO
 BARGAIN.
 
                           UNION PROPOSALS 3 - 6
 
    ARTICLE 29 - CONTRACTING OUT OF WORK
 
    SECTION 1.  GENERAL:  IT WILL BE THE POLICY OF THE EMPLOYER TO
 CONSULT OPENLY AND FULLY
 
    WITH THE UNION REGARDING ANY REVIEW OF A FUNCTION FOR CONTRACTING OUT
 OR CONSIDERATION OF
 
    CONTRACTING OUT OF A NEW OR REVISED FUNCTION.  THE EMPLOYER AGREES
 WORK WILL NOT BE CONTRACTED
 
    OUT WHEN IT CAN BE DEMONSTRATED THAT WORK PERFORMED "IN-HOUSE" IS
 MORE ECONOMICALLY AND
 
    EFFECTIVELY PERFORMED.  "MILESTONE CHARTS" RELATED TO REVIEW OR
 FEASIBILITY STUDIES FOR
 
    CONTRACTING OUT OF WORK WILL BE MADE AVAILABLE TO THE UNION.  THE
 EMPLOYER WILL CONSULT WITH
 
    THE UNION AS ACTIONS ARE TAKEN IN ACCORDANCE WITH SUCH CHARTS.
 
    SECTION 2.  IN ACCORDANCE WITH OFFICE OF FEDERAL PROCUREMENT POLICY
 CIRCULAR A-76, POLICIES
 
    ESTABLISHED THEREIN SHALL NOT BE USED:
 
    A.  AS AUTHORITY TO ENTER INTO CONTRACTS IF SUCH AUTHORITY DOES NOT
 OTHERWISE EXIST, NOR
 
    WILL IT BE USED TO JUSTIFY DEPARTURE FROM ANY LAW OR REGULATION
 INCLUDING REGULATIONS OF THE
 
    OFFICE OF PERSONNEL MANAGEMENT OR OTHER APPROPRIATE AUTHORITY, NOR
 WILL IT BE USED FOR THE
 
    PURPOSE OF AVOIDING ESTABLISHED SALARY OR PERSONNEL LIMITATIONS.
 
    B.  TO CONTRACT OUT PRODUCTS OR SERVICES WHICH ARE PROVIDED TO THE
 PUBLIC.
 
    C.  TO CONTRACT OUT PRODUCTS OR SERVICES OBTAINED FROM OTHER FEDERAL
 AGENCIES WHICH ARE
 
    AUTHORIZED OR REQUIRED BY LAW TO FURNISH THEM.
 
    SECTION 3.  NOTIFICATION AND CONSULTATION:  THE EMPLOYER WILL NOTIFY
 AND CONSULT WITH THE
 
    UNION CONCERNING ANY PROPOSAL TO CONTRACT WORK OR PROPOSAL TO REVIEW
 A FUNCTIONAL AREA FOR
 
    CONTRACTING POSSIBILITIES.
 
    A.  NOTIFICATION CONCERNING THE ABOVE WILL OCCUR AT LEAST FORTY-FIVE
 (45) DAYS IN ADVANCE
 
    OF THE "INVITATION FOR BID" OR A "REQUEST FOR PROPOSAL FOR
 CONTRACTUAL SERVICES." THE
 
    REASON(S) FOR THE PROPOSAL, STATUS OF AFFECTED EMPLOYEES,
 ARRANGEMENTS TO BE TAKEN TO MINIMIZE
 
    IMPACT ON EMPLOYEES (E.G., REASSIGNMENTS, RETRAINING, RETAINING
 CAREER EMPLOYEES AND
 
    RESTRICTING NEW-HIRES), AND CONTRACT SPECIFICATIONS, WILL ACCOMPANY
 THIS NOTIFICATION, AND THE
 
    UNION WILL HAVE TEN (10) CALENDAR DAYS TO FILE WRITTEN COMMENTS.  THE
 EMPLOYER WILL RESPOND TO
 
    THE COMMENTS WITHIN TEN (10) CALENDAR DAYS OF RECEIPT OF THE PROTEST.
  THE EMPLOYER'S RESPONSE
 
    SHALL INCLUDE A PROPOSED DATE, TIME AND PLACE OF MEETING WITH UNION
 REPRESENTATIVES TO DISCUSS
 
    SUCH TOPICS AS:
 
    1) THE REASON FOR CONTRACTING OUT;
 
    2) UNION RECOMMENDATIONS;
 
    3) HOW UNIT EMPLOYEES WILL BE AFFECTED;
 
    4) HOW TO MINIMIZE ANY EFFECTS ON EMPLOYEES BY REASSIGNMENT,
 RETRAINING, RESTRICTION OF
 
    CONTRACTUAL LABOR, ETC.; AND
 
    5) THE CONTRACT SPECIFICATIONS.
 
    THE EMPLOYER AGREES TO SERIOUSLY CONSIDER THE VIEWS AND
 RECOMMENDATIONS OF THE UNION AND TO
 
    ANNOUNCE A DECISION IN CONSIDERATION OF THEM BEFORE PROCEEDING WITH
 THE PROPOSAL.
 
    B.  WHEN THE DECISION IS TO PROCEED WITH A PROPOSAL THE EMPLOYER WILL
 CONTINUALLY APPRISE
 
    THE UNION OF THE STATUS OF THE PROPOSAL.  THE UNION WILL BE FURNISHED
 A COPY OF EACH
 
    SPECIFICATION AND CONTRACT AT THE SAME TIME THE INVITATIONS FOR BID
 ARE MAILED TO
 
    BIDDERS.  ALSO, THE UNION WILL BE FURNISHED DATES AND TIMES OF
 PRE-BID AND BID-OPENING
 
    CONFERENCES AND SHALL HAVE THE RIGHT TO HAVE TWO (2) UNION
 REPRESENTATIVES PRESENT AT THE
 
    CONFERENCES.
 
    C.  SUBSEQUENT TO OPENING OF THE BIDS AND BEFORE A CONTRACT IS
 AWARDED, THE UNION SHALL BE
 
    PROVIDED ALL DATA CONCERNING THE "IN-HOUSE" ESTIMATE OF COST OF THE
 WORK TO BE PERFORMED.  THE
 
    UNION WILL BE GIVEN TWENTY (20) WORKDAYS TO REVIEW THE "IN-HOUSE"
 ESTIMATE AND OTHER
 
    PERTINENT DATA AND TO COMMENT ON AND/OR CHALLENGE THE VALIDITY OF THE
 DATA.  ALL DATA WILL BE
 
    CORRECTED WHERE THE UNION DEMONSTRATES THAT IT IS NOT VALID OR
 PREPARED IN ACCORDANCE WITH
 
    EXISTING DIRECTIVES.
 
    SECTION 4.  PERSONNEL AFFECTED BY CONTRACTING OUT:  THE EMPLOYER
 AGREES TO TAKE ALL
 
    POSSIBLE ACTIONS TO MINIMIZE THE IMPACT ON EMPLOYEES WHEN A FUNCTION
 IS CONTRACTED
 
    OUT.  AFFECTED EMPLOYEES WILL BE REASSIGNED AND/OR RETRAINED TO
 MAXIMUM EXTENT
 
    POSSIBLE.  MAXIMUM RETENTION OF CAREER EMPLOYEES SHALL BE ACHIEVED BY
 CONSIDERING ATTRITION
 
    PATTERNS AND RESTRICTING NEW HIRES.
 
    UNION PARTICIPATION IN THE DEVELOPMENT OF THE STATEMENT OF WORK (SOW)
 SHOULD BE ENCOURAGED
 
    SINCE IT IS TO THE ADVANTAGE OF BOTH MANAGEMENT AND THE UNION THAT
 THE SOW BE AS ACCURATE AS
 
    POSSIBLE.  UPON COMPLETION, THE UNION WILL BE GIVEN THE OPPORTUNITY
 TO REVIEW THE SOW FOR
 
    THOROUGHNESS;  UNION COMMENTS RECEIVED WITHIN THE AGREED-UPON
 TIMEFRAME SHOULD BE CAREFULLY
 
    CONSIDERED BY MANAGEMENT.
 
    (ONLY THE UNDERSCORED PORTIONS OF THE ABOVE PROPOSALS ARE IN
 DISPUTE.)
 
    UNION PROPOSALS 3 AND 4 HEREIN (ARTICLE 29, SECTIONS 1 AND 2) ARE
 SUBSTANTIALLY IDENTICAL TO THE FIRST TWO PROPOSALS WHICH WERE BEFORE THE
 AUTHORITY 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 NO. 105(1981), AND WERE
 HELD TO BE INCONSISTENT WITH MANAGEMENT'S RIGHT TO "MAKE DETERMINATIONS
 WITH RESPECT TO CONTRACTING OUT" UNDER SECTION 7106(A)(2)(B) OF THE
 STATUTE.  FOR THE REASONS FULLY SET FORTH IN THAT DECISION, PROPOSALS 3
 AND 4 ARE LIKEWISE INCONSISTENT WITH MANAGEMENT'S RIGHT AND THUS ARE
 OUTSIDE THE DUTY TO BARGAIN.
 
    THE DISPUTED PORTIONS OF UNION PROPOSALS 5 AND 6 (ARTICLE 29,
 SECTIONS 3 AND 4) ARE CONCERNED WITH MINIMIZING THE EFFECT OF
 CONTRACTING OUT DECISIONS ON BARGAINING UNIT EMPLOYEES.  THE RECORD
 INDICATES THAT THE UNION INTENDS THESE PROPOSALS TO BE APPLIED "IN
 ACCORDANCE WITH APPLICABLE LAWS," INCLUDING THE PROVISIONS OF THE
 STATUTE.  IN LIGHT OF THIS INTENT, THE AUTHORITY CONCLUDES THAT THE
 PROPOSALS CONSTITUTE "APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
 AFFECTED" BY MANAGEMENT'S DECISION TO CONTRACT OUT AND THUS ARE WITHIN
 THE DUTY TO BARGAIN UNDER SECTION 7106(B)(3).  SEE HOMESTEAD AIR FORCE
 BASE, SUPRA (PROPOSAL 4).  IN THIS REGARD, MANAGEMENT WOULD FULLY RETAIN
 ITS STATUTORY DISCRETION.  SEE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2782 AND DEPARTMENT OF COMMERCE, BUREAU OF THE
 CENSUS, WASHINGTON, D.C., 6 FLRA NO. 56(1981).  CF. AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2782 AND DEPARTMENT OF COMMERCE,
 BUREAU OF THE CENSUS, WASHINGTON, D.C., 7 FLRA NO.  13(1981), APPEAL
 DOCKETED, 81-2386 (D.C. CIR. DEC. 29, 1981) (PROPOSAL REQUIRING
 SELECTION OF REPROMOTION ELIGIBLE 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 UNION'S
 PETITION FOR REVIEW RELATING TO UNION PROPOSALS 1 THROUGH 4 BE, AND IT
 HEREBY IS, DISMISSED.  IT IS FURTHER ORDERED THAT THE AGENCY SHALL UPON
 REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING
 UNION PROPOSALS 5 AND 6.  /1/
 
    ISSUED, WASHINGTON, D.C., MAY 20, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN DECIDING THAT THE DISPUTED PORTIONS OF PROPOSALS 5 AND 6 ARE
 WITHIN THE DUTY TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THEIR
 MERITS.