15:0273(59)NG - AFGE Local 1858 and Army Missile and Munitions Center and Schools, Redstone Arsenal, AL -- 1984 FLRAdec NG

 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.