[ v15 p273 ]
The decision of the Authority follows:
15 FLRA No. 59 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1858 Union and ARMY MISSILE AND MUNITIONS CENTER AND SCHOOL, REDSTONE ARSENAL, ALABAMA Agency Case No. O-NG-744 DECISION AND ORDER ON NEGOTIABILITY ISSUE The petition for review in this case comes from the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises an issue concerning the negotiability of the following Union proposal. Union Proposal MMCS (the Agency) agrees to comply with the provisions of AR (Army Regulation) 570-4 and changes thereto, regarding the occupancy of military and civilian TDA (Table of Distribution and Allowance) spaces. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. The Agency describes the cited regulation as follows: /1/ AR 570-4 Manpower Management, . . . is applicable to all elements of the Army and deals with the use and mix of manpower resources available to perform the Army mission, to include the military force, the Federal civilian work force, and services obtained by contract. With regard to the "mix" of civilian and military resources, the Authority noted in American Federation of Government Employees, AFL-CIO, Local 3742 and Department of the Army, Headquarters, 98th Division (Training), Webster, New York, 11 FLRA No. 42 (1983) (Union Proposal 8) that when an agency establishes the ratio between military and civilian positions in an organizational element, it is exercising its right, pursuant to section 7106(a)(1) of the Statute, to determine its "organization." However, the disputed proposal herein does not violate the Agency's right to determine its organization. Further, contrary to the Agency's contentions, this proposal would not interfere with the Agency's right, pursuant to section 7106(a)(2)(B) of the Statute, to determine the "personnel" by which Agency operations are conducted, or with the Agency's right, pursuant to section 7106(b)(1), to determine the "numbers, types, and grades of employees" assigned. Rather, the disputed proposal merely acknowledges that higher levels within the Agency have elected to impose upon local management certain limitations in the exercise of its right to determine its "organization," and only requires that local management adhere to whatever higher level Agency regulations apply at the time it takes any action affecting its "organization." /2/ A proposal to the same effect was before the Authority in American Federation of Government Employees, AFL-CIO, National Council of EEOC Locals and Equal Employment Opportunity Commission, 10 FLRA 3 (1982) (Union Proposal 1). The cited proposal sought to require management to exercise its right, pursuant to section 7106(a)(2)(B) of the Statute, to make contracting out determinations in conformity with whatever applicable laws and regulations exist at the time of the action. In finding the proposal within the duty to bargain, the Authority noted that its provisions " . . . would contractually recognize external limitations on management's right but would not establish, either expressly or by incorporation, any substantive limitations on management." Hence, based on Equal Employment Opportunity Commission, and the reasons cited therein, since the disputed proposal in this case would likewise only contractually recognize higher level limitations on local management's right, it is within the duty to bargain. /3/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning the disputed proposal. Issued, Washington, D.C., July 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Agency Statement of Position at 1. /2/ In this connection, the Agency contends that the proposal interferes with management's right because the cited regulation does not provide for a waiver of its requirements. However, the absence of a waiver provision is, in itself, an exercise of managerial discretion, and the proposal would not bar modification of the regulation to provide for the granting of waivers. /3/ In finding the disputed proposal within the duty to bargain, the Authority makes no judgment as to its merits.