American Federation of Government Employees, Local 738 and Department of the Army, Fort Leavenworth (Authority decision, December 31, 1987)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority dismissing a negotiability appeal. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

After an Army study at Fort Leavenworth led to a new staffing structure and one reassignment, AFGE Local 738 proposed another management study and a review of the structure. The Authority could not determine whether the union wanted a new study that might restrict a management decision or only a review of the completed study. That difference mattered to whether the proposal interfered with management's rights. Because the proposal and record did not explain its scope well enough for a ruling, the Authority dismissed the petition without deciding negotiability.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7117(a)(1).
• Outcome: Union petition dismissed for insufficiently specific proposal.
• Key point: The Authority could not decide negotiability without knowing what kind of management study the proposal required.

Full text (FLRA public release)

[ v30 p794 ]

30:0794(92)NG

The decision of the Authority follows:

30 FLRA NO. 92
30 FLRA 794

31 DEC 1987

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 738

union

andDEPARTMENT OF THE ARMY
FORT LEAVENWORTH, KANSAS

Agency

Case No. O-NG-1395

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). The dispute concerns the negotiability of one proposal which the Union presented during impact and implementation bargaining. The proposal concerns the performance of a management study by the Agency. Based on the following reasons, we find that the proposal is not sufficiently specific to enable us to rule on its negotiability.

II. Background

The Agency conducted a commercial activity study to determine whether a certain function should be contracted out. As part of the study, it developed a "most efficient organization" (MEO) structure. As a result of the study, the Agency decided not to contract out the work in question. Instead, the Agency implemented the MEO resulting in one bargaining unit position being "cancelled" and one employee being reassigned. The Agency advised the Union of the change and the parties entered into impact and implementation bargaining. The Union offered the following proposal which the Agency asserts is nonnegotiable.

III. The Proposal

That a new management study be performed and the most efficient organization (MEO) revalidated. After revalidation, the MEO positions are to be reviewed by a classifier and reclassified, as appropriate.

A. Positions of the Parties

The Agency argues, as a threshold matter, that the Union's petition for review fails to meet the requirements of 5 C.F.R. 2424.4 because the Union failed to state how an employee was adversely affected or how the proposal relates to the "affected employee."

As to the merits, the Agency contends that the proposal is not a condition of employment under section 7103(a)(14)(B) of the Statute because it concerns the classification of employees. Further, the Agency contends that, as the MEO structure was developed as part of its study to determine whether to contract out work, the proposal interferes with its right to make determinations with respect to contracting out under section 7106(a)(2)(B) of the Statute, and conflicts with section 7101(b) which provides that the Statute be interpreted consistent with the requirement of an effective and efficient Government. The Agency contends further that the proposal interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. Lastly, the Agency argues that the proposal is neither a procedure nor an appropriate arrangement.

The Union contends that the proposal is negotiable under section 7106(b)(2) and (3) of the Statute as procedures and appropriate arrangements for employees adversely affected by the exercise of management rights.

B. Analysis and Conclusion

The proposal is not sufficiently specific in content to enable us to make a negotiability determination. From the proposal and the parties' statements it is unclear as to the nature or type of study which the Union seeks to have the Agency undertake. The Authority has found that proposals which require an agency to conduct a cost-benefit analysis as part of its process of determining whether to contract out certain functions place substantive restrictions on the agency's exercise of its reserved right. See American Federation of State, County and municipal Employees, Local 3097 and Department of Justice, 24 FLRA 453 (1986) (Proposal 2; Member McKee dissenting as to other matters), and American Federation of Government Employees, Local 225, AFL - CIO and Department of the Army, U.S. Army Armament Research and Development Command, Dover, New Jersey, 17 FLRA 417, 418 (1985)(Proposals 1 and 2). On the other hand, if the Union's proposal only requires management to review the study which it had already conducted, the proposal would not interfere with management's right to contract out work. Under those circumstances, the proposal would not prescribe any particular methodology, conditions or limitations on how management will conduct the study and thus would not interfere with the deliberative or decisional processes by which management exercises its right to make determinations with respect to contracting out. In any event, neither the Union's proposal nor the record as a whole, sets forth sufficient specific information to enable us to reach a reasoned decision. Thus it does not meet the conditions for review set forth in section 7117 (a) (1) of the Statute and section 2424.1 of the Authority's Rules and Regulations, and is dismissed. See American Federation of Government Employees, Local 644 and U.S. Department of Labor, Mine Safety and Health Administration, 21 FLRA 1046, 1049-50 (1986) (Proposal 3), and Fort Bragg Unit of North Carolina Association of Educators, National Education Association and Fort Bragg Dependents Schools, Fort Bragg, North Carolina, 12 FLRA 519, 527 (1983).

IV. Order

The Union's petition for review is dismissed.

Issued, Washington, D.C., December 31, 1987.

Jerry L. Calhoun Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY