[ v14 p302 ]
The decision of the Authority follows:
14 FLRA No. 55 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2736 Union and DEPARTMENT OF THE AIR FORCE, HEADQUARTERS 379TH COMBAT SUPPORT GROUP (SAC), WURTSMITH AIR FORCE BASE, MICHIGAN Agency Case No. O-NG-471 9 FLRA 733 DECISION AND ORDER ON REMAND On August 19, 1983, the United States Court of Appeals for the District of Columbia Circuit remanded this case to the Authority for further consideration of its negotiability determination with respect to certain disputed language sought to be included in a bargaining agreement between the parties. American Federation of Government Employees, Local 2736 v. Federal Labor Relations Authority, 715 F.2d 627 (D.C. Cir. 1983). The Authority had dismissed the Union's appeal finding that it was improperly before the Authority as a negotiability issue to be resolved pursuant to section 7117 of the Statute but should have either been filed under the unfair labor practice procedures of the Statute or processed through the parties' contractual grievance procedure. In this regard, the Agency had asserted that the Union waived its right to negotiate the matters at issue since the local parties reached agreement on mutually acceptable language regarding the matters covered by the proposals contained in the Union's appeal to the Authority; such language was incorporated in the local agreement which was executed prior to the Union's appeal; and the parties' contractual reopener clause, relied upon by the Union, was inapplicable based upon factual circumstances surrounding the negotiation of the local agreement. 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, 9 FLRA 733 (1982). On appeal, the Court held that "the Authority's decision that both negotiability and factual issues be determined in an unfair labor practice or contractual grievance hearing contravenes the clear statutory mandate of Section 7117(c) that negotiability disputes be processed as expeditiously as is practicable." It therefore vacated the Authority's decision and remanded the case to the Authority for further proceedings consistent with the Court's Opinion. /1/ Therefore, the Authority will now resolve the merits of the negotiability issues raised by the Union. Proposal No. 1 A. Any cost study used as justification for a decision to contract-out must have the same scope of work for both in-house and contracting-out estimates. Proposal No. 2 B. Any in-house estimates on a cost study used as justification for a decision to contract-out must be based on the most efficient and cost effective organization for in-house performance. In agreement with the Agency, the Authority concludes that Proposals 1 and 2 would directly interfere with management's right under section 7106(a)(2)(B) of the Statute "to make determinations with respect to contracting out." In this regard, the right of management officials under section 7106(a)(2)(B) to make determinations with respect to contracting out encompasses not only the right to take such action but also the right to engage in preliminary discussion and deliberation concerning the relevant factors upon which determinations will be made. National Federation of Federal Employees, Local 1167 and Department of the Air Force, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981), affirmed sub nom. National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982). Proposals 1 and 2 however, would interfere with this deliberative process by prescribing standards to be used in evaluating some of the factors upon which a contracting out determination could be based. That is, Proposals 1 and 2 would substantively restrict how a cost study used in determining whether to contract out could be conducted. Finally, the Union's arguments that Proposals 1 and 2 are negotiable because they merely reiterate restrictions contained in Office of Management and Budget (OMB) Circular No. A-76 (Proposal 1) and Public Law 96-342 (Proposal 2), cannot be sustained. In Homestead Air Force Base, supra, a similar argument was proffered and rejected. In that case the Authority noted that, as section 7106(a) of the Statute provides that "nothing in this chapter shall affect the authority of any management official" to exercise the rights enumerated therein, no provision could be negotiated which would preclude the exercise of a management right. Hence, the Authority concluded, negotiation of an independent contractual requirement limiting management's discretion with respect to contracting out would go beyond mere recognition by the parties in their collective bargaining agreement of external limitations. It would, rather, impose substantive limitations in and of itself on management's right to contract out. Therefore, based on the foregoing, Proposals 1 and 2 herein, which also go beyond mere recognition of external statutory or regulatory limitations by imposing substantive limitations on management's right to contract out, are outside the duty to bargain under the Statute. /2/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review as to Proposals 1 and 2 be, and it hereby is, dismissed. Proposal No. 3 No contract award shall be made until all grievance procedures, up to and including arbitration are exhausted in regard to any contract provision pertaining to the impact and implementation of a contracting-out decision. The Agency essentially contends that Union Proposal 3 would impose so lengthy a delay on the implementation of a contracting out decision as to prevent the Agency from acting at all with regard to its rights: Under section 7106(a)(1), "to determine . . . the organization, number of employees, and internal security practices of the agency;" under section 7106(a)(2)(A), "to hire, assign, direct, layoff . . . employees;" under section 7106(a)(2)(B), "to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;" and under section 7106(a)(2)(D), "to take whatever actions may be necessary to carry out the agency mission during emergencies." The Agency also contends that this proposal would be inconsistent with the intent of Congress as expressed in section 7101(b) that the Statute be interpreted in a manner consistent with the requirement of an effective and efficient government. The Agency's contentions cannot be sustained. In this regard the Agency provides no support whatsoever for the core of its contentions which is that the grievance arbitration process would take so long to complete that the basis upon which the original contracting out decision had been made would become invalid resulting in the Agency being placed in a constant "cycle of studying, deciding and justifying but never implementing." /3/ (Further, nothing in the proposal would preclude the Agency from taking necessary actions in an emergency situation.) Thus, Union Proposal 3 is to the same effect as Union Proposal III in American Federation of Government Employees, Local 547, AFL-CIO and Veterans Administration Medical Center, Tampa, Florida, 4 FLRA 368 (1981), enforced sub nom. Veterans Administration Medical Center, Tampa, Florida v. Federal Labor Relations Authority, 675 F.2d 260 (11th Cir. 1982), which provided that any personnel action which is the subject of a grievance or arbitration would be stayed pending completion of such litigation, and which the Authority held was a negotiable procedure under section 7106(b)(2) of the Statute. /4/ See also American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). For the reasons set forth above, and as determined by the Authority in Veterans Administration Medical Center, Tampa, Proposal 3 herein is negotiable. /5/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS AGREED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 3. /6/ Issued, Washington, D.C., April 20, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ AFGE, Local 2736 v. FLRA, 715 F.2d 627 (D.C. Cir. 1983). /2/ Accordingly, it is unnecessary to address the Agency's additional contentions that Proposals 1 and 2 are inconsistent with management's section 7106(a)(2)(B) right "to assign work" or with its section 7106(b)(1) right to determine the "methods, and means of performing work" or that Proposal 2 is inconsistent with its section 7106(a)(1) right to determine its "organization." /3/ Agency brief at 22. /4/ Section 7106(b)(2) provides as follows: Sec. 7106. Management rights . . . . (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- . . . . (2) procedures which management officials of the agency will observe in exercising any authority under this section (.) /5/ In deciding that Proposal 3 is negotiable, the Authority makes no judgment as to its merits. /6/ The Authority here decides only the negotiability issues presented under section 7105(a)(2)(E) of the Statute. To the extent that there are factual issues in dispute between the parties regarding the duty to bargain in the specific circumstances of this case, these issues may be raised in other appropriate proceedings.