23:0137(15)AR - Congressional Research Employees Association and The Library of Congress -- 1986 FLRAdec AR

 23 FLRA No. 15
 
 CONGRESSIONAL RESEARCH 
 EMPLOYEES ASSOCIATION
 Union
 
 and
 
 THE LIBRARY OF CONGRESS
 Agency
 
                                            Case No. 0-AR-624
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Jacob Seidenberg filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    A grievance was filed and submitted to arbitration challenging the
 Agency's determination to contract out certain functions as violative of
 Article XVI /1/ of the parties' collective bargaining agreement.  The
 Arbitrator as his award found that the grievance was arbitrable, but
 denied the grievance on the merits.
 
                             III.  Exceptions
 
    In its exceptions, the Agency contends that the award is contrary to
 law and regulation in several respects.  In particular, the Agency
 contends that by finding the grievance to be arbitrable, the award is
 contrary to the Agency's right under section 7106(a)(2)(B) of the
 Statute to make determinations with respect to contracting out.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    The Authority concludes that the award is deficient under the
 Statute.  The plain language of section 7106 of the Statute provides
 that "nothing" in the Statute shall "affect the authority" of an agency
 to exercise the rights enumerated in that section.  Thus, the Authority
 has expressly held that a matter cannot be grieved which would deny the
 authority of an agency to exercise its statutory rights under section
 7106.  American Federation of Government Employees, AFL-CIO, Local 1968
 and Department of Transportation, Saint Lawrence Seaway Development
 Corporation, Massena, New York, 5 FLRA 70, 79 (1981), aff'd sub nom.
 AFGE Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied,
 461 U.S. 926 (1983).  Specifically, the Authority has held that
 proposals which would, as their sole effect, subject management's
 determinations concerning the identification of critical elements of a
 position and the content of performance standards to the grievance
 procedure and arbitral review constituted improper interference with
 management's rights.  Saint Lawrence Seaway Development Corporation,
 (Proposal 4).  In so holding, the Authority has noted that subjecting
 managerial evaluations concerning critical elements and performance
 standards to arbitral review would require an arbitrator to substitute
 his or her judgment as to how the agency should be run for that of
 management.  National Treasury Employees Union and Department of Health
 and Human Services, Region 10, 13 FLRA 732, 734 (1982), aff'd sub nom.
 NTEU v. FLRA, 767 F2d 1315 (9th Cir. 1985).  Thus, the Authority has
 found that an arbitrator cannot determine that a grievance directly
 challenging an agency's identification of job elements or establishment
 of performance standards is grievable and arbitrable.  Bureau of
 Prisons, Department of Justice and American Federation of Government
 Employees, Local 148, 21 FLRA No. 15 (1986);  Bureau of Engraving and
 Printing, U.S. Department of the Treasury and Washington Plate Printers
 Union, Local No. 2, IPDEU, AFL-CIO, 20 FLRA No. 39 (1985).  The
 Authority has also found an arbitration award deficient which enforced a
 collective bargaining agreement provision that imposed a substantive
 limitation on management's right to identify critical elements.  The
 Authority concluded that by imposing such a limitation, the agreement
 provision prompted the interference by grievance and arbitration with
 management's rights because the provision provided the basis for the
 arbitrator's review of management's identification of an element as
 critical and permitted the substitution of judgment by the arbitrator
 for that of management as to how the agency should be run.  National
 Treasury Employees Union and U.S. Customs Service, 17 FLRA 38 (1985).
 Of course, section 7106 provides that the exercise by management of the
 rights enumerated in section 7106(a)(2) must be in accordance with
 applicable laws and is subject to any procedures or appropriate
 arrangements that have been negotiated by the parties.  In Headquarters,
 97th Combat Support Group (SAC), Blytheville Air Force Base, Arkansas
 and American Federation of Government Employees, AFL-CIO, Local 2840, 22
 FLRA No. 72 (1986), this principle was applied to a grievance alleging
 that a decision to contract out was not made in accordance with
 applicable procurement law and regulation governing such determinations.
  The Authority concluded that such a grievance was not contrary to
 section 7106(a)(2)(B) of the Statute and was grievable and arbitrable.
 
    The grievance in this case does not concern whether the disputed
 procurement action is in accordance with applicable laws.  Similarly,
 Article XVI of the agreement does not constitute a negotiated procedure
 to be observed in, or an appropriate arrangement for employees adversely
 affected by, the exercise by management of its right to make a
 determination to contract out.  Instead, Article XVI expressly prohibits
 the Agency from contracting out when "the regular staff" possesses the
 required specialized skills or knowledge or can obtain the required
 skills or knowledge through normal employment procedures.  By preventing
 the Agency from contracting out in these circumstances, the provision is
 inconsistent with section 7106(a)(2)(B) which reserves such
 determinations with respect to contracting out management.  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 574 (1981) (Proposal 2), enforced sub nom.
 National Federation of Federal Employees v. FLRA, 681 F. 2d 886 (D.C.
 Cir. 1982).
 
    The Arbitrator's determination that Article XVI merely incorporated
 by reference the provisions of existing procurement laws and
 regulations, including specifically 2 U.S.C. Section 166, does not alter
 this conclusion.  As the Authority explained in Homestead Air Force
 Base, 6 FLRA at 577, incorporation into the collective bargaining
 agreement of specific terms of law or regulation would require
 management to comply with those terms during the period of the
 collective bargaining agreement regardless of whether the specific
 provisions from which they were derived might subsequently be revised or
 rescinded.  Thus, the Authority concluded that incorporation of specific
 terms "would impose an independent contractual requirement upon
 management's discretion with respect to contracting out" and therefore
 "goes beyond contractual recognition of an external limitations and
 imposes substantive limitations in and of itself." In short, the
 Authority stated that although law or regulation may place limitations
 on management discretion, the Statute precludes the negotiation of
 contractual limitations on management's rights.
 
    The grievance in this case sought to enforce through grievance and
 arbitration a provision of the parties' collective bargaining agreement
 that denies the authority of the Agency to make determinations with
 respect to contracting out under section 7106(a)(2)(B) of the Statute.
 Consistent with established precedent pertaining to arbitral review of
 management's exercise of its rights in performance appraisal matters, we
 find that such a grievance is precluded by section 7106 from grievance
 and arbitration.  Thus, the Arbitrator's award finding the grievance to
 be arbitrable is deficient as contrary to the Statute.
 
                               V.  DECISION
 
    Accordingly, paragraphs 2-3 of the award, finding the grievance
 arbitrable and resolving the grievance on the merits, are set aside.
 /2/
 
    Issued, Washington, D.C., August 14, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Article XVI of the parties' collective bargaining agreement
 pertinently provides:
 
          Section 1.  With the approval of the Libratian of Congress, the
       Library may employ, in order to improve its service and operation,
       experts and consultants on a temporary basis in those situations
       when the regular staff does not possess the required specialized
       skills or knowledge which cannot practicably be obtained through
       normal employment procedures.
 
    (2) In view of this decision, it is not necessary to address the
 other contentions of the Agency in its exceptions to the award.