Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Department of the Navy (Authority decision, May 24, 1984)

Final FLRA decision. The Authority held a proposal for union membership on a Navy contracting committee outside the duty to bargain and dismissed the negotiability petition. An aggrieved person may seek judicial review of a final Authority order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The Federal Union of Scientists and Engineers proposed a seat on the Navy's Commercial Activities steering committee. The committee oversaw studies and made recommendations concerning possible contracting out of agency functions. The Authority held that management's statutory right to decide on contracting out includes its internal discussion and deliberation. Required union membership on a committee involved in those deliberations would interfere with that right. The Authority held the proposal outside the duty to bargain and dismissed the petition.

Decision snapshot

• Authority: Contracting-out right under 5 U.S.C. § 7106(a)(2)(B).
• Outcome: Union committee seat proposal held nonnegotiable; petition dismissed.
• Key point: Management's protected contracting decisions included committee deliberations and recommendations.

Full text (FLRA public release)

[ v14 p709 ]

14:0709(95)NG

The decision of the Authority follows:

14 FLRA No. 95

FEDERAL UNION OF SCIENTISTS AND
ENGINEERS, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R1-144
Union

and

DEPARTMENT OF THE NAVY
Agency

Case No. O-NG-690

DECISION AND ORDER ON NEGOTIABILITY ISSUE

The petition for review in this case comes before 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.

Does the Union . . . have the right to negotiate for a member seat on the Commercial Activities (CA), formerly known as the CITA, steering committee.

The Union describes the functions of the Commercial Activities steering committee as follows: /1/

(a) the committee makes decisions on hiring procedures or practices in the functions that are studied for transfer during the study period prior to letting of the contract. (b) the committee decides on the content or extent of the contract, i.e., whether to contract out all the functions being studied under one contract versus a number of individual contracts for each function
. . . . (c) guidelines are set by this committee on meetings with employees in the unit over the definition of work to be performed and specified in order to write contract specifications.

The Agency is in essential agreement with this description "except that the decisions referred to by the union are recommendations, not final decisions which would be implemented without consideration of matters such as any relationship to the negotiated agreement or the obligation to bargain." /2/

Thus, the committee on which the Union seeks membership is concerned with overseeing, or "steering," studies to determine the feasibility of contracting out Agency functions. The right "to make determinations with respect to contracting out" is reserved to management by section 7106(a)(2)(B) of the Statute. With regard to this specific right, the Authority stated, in National Federation of Federal Employees, Local 1167 and Department of the Air Force, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 578, affirmed sub nom. National Federation of Federal Employees, Local 1167 v. Federal labor relations authority, 681 f.2d 886 (D.C. CIR. 1982), ". . . the right of management officials under section 7106(a)(2)(B) of the Statute to make determinations with respect to contracting out encompasses not only the right to act in this regard but also the right to discuss and deliberate concerning the relevant factors upon which such a determination will be made." Further, concerning the management rights enumerated in section 7106, in National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998, 999, the Authority stated: "(W)hen management establishes formal organizational structures to undertake such deliberations as an integral part of its substantive decision-making process, a proposal which would require union participation would have the effect of directly interfering with management's statutory right to make the decisions involved." Since, by means of the instant proposal, the Union seeks to gain a seat on a committee established by management to make recommendations on actions which management might take pursuant to its right to contract out, the proposal is inconsistent with section 7106(a)(2)(B) of the Statute and is not within the duty to bargain.

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and hereby is, dismissed. Issued, Washington, D.C., May 24, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ Union Petition for Review at 1-2.

/2/ Agency Statement of Position at 1.