32:0544(80)NG - - NTEU and Treasury, IRS - - 1988 FLRAdec NG - - v32 p544
[ v32 p544 ]
The decision of the Authority follows:
32 FLRA No. 80
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL TREASURY EMPLOYEES UNION
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
Case No. 0-NG-1500
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of four proposals. The proposals concern the Agency's decision to contract out for instructors in its Revenue Officer training program and establish the conditions under which the Agency would contract with the Union to provide the services of such instructors.
For the reasons explained below, we find the proposals to be outside the duty to bargain because they do not concern the conditions of employment of bargaining unit employees.
In October l987, the Agency posted a vacancy announcement for 20 instructors in its Southwest Region Revenue Officer training program. Nine employees responded to the announcement. All nine were found qualified and were selected as instructors. The Agency then developed a plan to procure more instructors from outside the Agency.
After being informed of the Agency's plan, the Union submitted five bargaining proposals. The Agency agreed that Proposal l, which requires that the selection of instructors be consistent with Article 30, Section 5 of the parties' negotiated agreement, is negotiable. The Agency declared Proposals 2-5 nonnegotiable and the Union filed this appeal.
If the Employer is unable to fill the vacant instructor positions through the selection procedures outlined in Article 30 of NORD II as outlined above; the Employer shall contact NTEU immediately.
Upon receiving such notification, NTEU shall be given ninety (90) days to provide the Employer with qualified instructors. Such instructors shall be qualified IRS employees who have been rated fully successful or higher.
The "Fee For Services" to be paid to NTEU by the Employer for providing such instructors shall be mutually agreed upon between NTEU and the Employer prior to such services being rendered.
If NTEU is unable to provide the necessary number of qualified instructors, or if IRS can demonstrate that they can procure such instructors at a lower cost than mutually agreed upon between NTEU and the IRS, the Employer may contract with the lower cost provider of such services.
IV. Positions of the Parties
A. The Agency
The Agency contends that its decision to hire instructors from outside the Agency had no effect on bargaining unit employees. The Agency argues that because there were no bargaining unit employees qualified to be instructors other than the nine employees selected, the decision to contract out did not affect the working conditions of bargaining unit employees.
Additionally, the Agency contends that by requiring management to assign instructional duties to employees chosen by the Union, Proposals 2 and 3 directly interfere with management's rights to assign employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency also argues that the decision to use contract instructors constitutes a determination of the methods and means of performing the work of the Agency, a matter which is negotiable only at the election of the Agency under section 7106(b)(1) of the Statute.
The Agency contends that Proposals 4 and 5 are nonnegotiable under section 7117(a)(1) of the Statute because they are inconsistent with applicable Federal law and Government-wide regulations: the Federal Property and Administrative Services Act, as amended by the Competition in Contracting Act of 1984, 41 U.S.C. ºº 251-260 (the Act), and the Federal Acquisition Regulations (the FARs), title 48 of the Code of Federal Regulations. The Agency argues that because Proposals 4 and 5 would require the Agency to strike a "private deal" with the Union, the proposals are inconsistent with the requirements of the Act and the FARs that management: (1) advertise its intent to contract for the necessary services, and (2) select a bid only after open competition among competing contractors. Agency Statement of Position at 10-11.
B. The Union
The Union contends that its proposals relate to the conditions of employment of unit employees because contract instructors would be performing bargaining unit work. The Union argues that although the Agency determined that only nine employees in the Southwest Region were qualified, the Agency did not give employees outside the Region the opportunity to bid on instructors' jobs, nor did it determine whether employees in the Region were eligible for training in order to become qualified as instructors.
The Union also contends that the proposals do not interfere with management's rights to assign employees, assign work, or make determinations with regard to contracting out. The Union argues that the proposals recognize management's right to determine the qualifications of instructors and would take effect only after management has determined that it could not locate qualified instructors within the bargaining unit and had decided to contract out. The Union also argues that the proposals do not require the Agency to assign instructional duties to unit employees designated by the Union because the instructors provided under the proposals--for example, former Agency employees, retired Agency employees, or Agency employees on approved leaves of absence--would be under contract with the Union and, thus, would not be employees of the Agency. Union Response to Agency Statement of Position at 6-8. The Union argues that its proposals are, therefore, negotiable as appropriate arrangements, within the meaning of section 7106(b)(3) of the Statute, for employees denied the opportunity to apply for instructor vacancies. Union Response to Agency Statement of Position at 11-13.
Finally, the Union contends that the proposals are consistent with law and regulation because they do not require the Agency to use the Union as a sole source provider of services. Rather, the Union argues, the Agency would be required to contract with the Union only if it is unable to find a contractor who would provide instructors at a lower cost. Id. at 13-15.
A. The Intent of the Proposals
Based on the wording of the proposals and on the Union's statements as to their intent, we find that, read together, the proposals establish the conditions under which the Agency will contract with the Union for the services of instructors in the Agency's Revenue Office training program. The Union's explanation of the proposals is consistent with the plain wording of those proposals. Thus, for the purposes of this decision, we adopt the Union's interpretation of the proposals.
As the Union explains, its proposals "simply attempt to provide a system in which [the Union] would be provided an opportunity to competitively provide a service" to the Agency. Petition for Review at 2. Specifically, under Proposal 1, which is not in dispute, whenever the Agency determines that it must obtain instructors for its training programs, it will use the selection process set forth in Article 30, Section 5 of the parties' negotiated agreement.
If that process does not produce enough qualified instructors to fill all the vacant positions, Proposal 2 requires the Agency to notify the Union. That notification initiates a 90-day period in which, under Proposal 3, the Union is afforded an opportunity to provide the Agency with the requisite number of qualified instructors. Although the wording of Proposal 3 contemplates that the Union will provide qualified Agency employees, the record indicates that the Union interprets the proposal as permitting it to provide qualified former employees and retired employees as well. Union Response to Agency Statement of Position at 8. Instructors provided by the Union would be under contract with the Union and would not, according to the Union, be employees of the Agency during the period in which they were under contract. Id. at 7.
Once the Union has obtained the requisite number of qualified instructors, Proposal 4 requires the Agency to negotiate with the Union over the fee which the Union will receive for providing those services to the Agency. Under the proposal, the Agency will procure the services of the instructors by contract with the Union. Id. at 9-10. Proposal 5 provides that if the parties are unable to agree on the fee for the instructors' services, or if the Union is unable to provide the requisite number of instructors, or if the Agency can demonstrate that another contractor can supply instructors at a lower cost, the Agency may contract with another contractor. As the Union indicates, the proposals are intended to permit it to bid on a contract in competition with other potential contractors to provide the services of non-Government instructors. Id. at 14.
B. Whether the Proposals Concern Conditions of Employment of Bargaining Unit Employees
Whether the proposals are within the duty to bargain under the Statute depends on whether they concern conditions of employment of bargaining unit employees. In Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236-37 (1986) (Antilles), the Authority stated that in deciding whether a proposal involves a condition of employment of bargaining unit employees within the meaning of section 7103(a)(14) of the Statute, two basic factors would be considered:
(1) Whether the matter proposed to be bargained pertains to bargaining unit employees; and
(2) The nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees.
Emphasis in original. As to the first factor, the Authority stated that "a proposal which is principally focused on nonbargaining unit positions or employees does not directly affect the work situation or employment relationship of bargaining unit employees." Antilles, 22 FLRA at 237.
Based on the intent of the proposals, we find, under the test established in Antilles, that the proposals do not pertain to bargaining unit employees. Specifically, the proposals are not focused on bargaining unit positions or on the employment relationship of bargaining unit employees. Rather, they concern individuals under contract with the Union to serve as instructors for the Agency and the status of the Union as a contractor providing those services to the Agency. As noted above, even if the instructors to be provided by the Union include Agency employees on approved leaves of absence, they are employees of the Union while they are serving as instructors, not employees of the Agency.
The proposals create no rights for unit employees as employees of the Agency and confer no benefits which employees would receive by virtue of their employment by the Agency. Moreover, the proposals do not establish any rights or obligations on the part of the Union as the exclusive representative of unit employees. Rather, they concern a proposed plan by which the Union would negotiate for its own interests as a contractor providing services to the Agency and for the interests of the instructors which it has employed. Therefore, in our view, the proposals do not pertain to unit employees.
This case is distinguishable from cases in which we have found that proposals relating to contracting out pertain to the conditions of employment of bargaining unit employees. For example, in AFSCME Local 3097 and Department of Justice, Justice Management Division, 3l FLRA 322 (1988), petition for review filed sub nom. Department of Justice, Justice Management Division v. FLRA, No. 88-1316 (D.C. Cir. April 22, 1988), the proposals sought to limit the effect of the agency's decision to contract out on unit employees by incorporating existing legal requirements and by providing the union with information about that decision and an opportunity to comment. The proposals provided benefits to unit employees and to the union as the exclusive representative of unit employees. We found that the decision to contract out library functions or services affected "conditions of employment" of bargaining unit employees, because contracting out would result in a loss of bargaining unit positions. 31 FLRA at 324-332.
In contrast, the Agency's decision in the case before us to contract out instructor positions would not result in a loss of bargaining unit positions. All the bargaining unit employees who applied for the positions were found qualified and were selected as instructors. The Agency decided to contract for instructors because it could not locate enough qualified employees for the availab