11:0263(55)NG - NTEU and HHS, FDA, Region VII -- 1983 FLRAdec NG

 11 FLRA No. 55
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, FOOD AND DRUG
 ADMINISTRATION, REGION VII
 Agency
 
                                            Case No. O-NG-609
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 relating to the negotiability of the following Union proposal:
 
          The "Competitive Area" will be established by the Agency as all
       of those positions under the personnel administration and
       authority of the Principal Regional Official of DHHS-Kansas City,
       Missouri, within the commuting area of Kansas City, Missouri.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determination.
 The proposal at issue herein is, in all material respects, identical to
 Union Proposal 1 in National Treasury Employees Union and Department of
 Health and Human Services, Region IV, 11 FLRA No. 53 (1983).  Thus, the
 Agency herein is essentially asserting, for the same reasons as it did
 in DHHS, Region IV, that negotiation of the proposal is barred by the
 same agency regulation, HHS Personnel Manual Instruction 351-1-40, /1/
 which was raised therein.  /2/ Therefore, based on the record in the
 present case, /3/ the Authority finds that the proposal at issue herein
 is within the duty to bargain for the reasons stated in DHHS, Region IV.
 
    Accordingly, pursuant to section 2420.10 of the Authority's Rules and
 Regulations, IT IS HEREBY ORDERED that the Agency shall upon request of
 the Union (or as otherwise agreed to by the parties) bargain concerning
 the proposal.  /4/ Issued, Washington, D.C., February 3, 1983
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ HHS Personnel Manual Instruction 351-1-40 establishes the
 Agency's competitive areas and provides in pertinent part:
 
    351-1-40 COMPETITIVE AREAS
 
          A. The normal subdivisions of the Department for reduction in
       force are outlined below:
 
                                .  .  .  .
 
          5.  Positions under a regional office's appointing authority
       form competitive areas as follows:
 
          a.  *Each PHS Hospital, SSA Program Service Center, and SSA
       Data Operations Center is a separate competitive area.*
 
          b.  *Positions within the Indian Health Service within each
       commuting area form a competitive area.*
 
          c.  All other clerical, secretarial, and wage rate positions in
       a commuting area constitute a competitive area.
 
          d.  For positions other than those covered by 5.a., b., or c.
       above, separate competitive areas are established region-wide
       within each of the following components:  Office of Secretary,
       Public Health Service, Health Care Financing Administration,
       *Office of Child Support Enforcement,* Office of Human Development
       Services, and Social Security Administration.
 
 
    /2/ It is noted that when an agency raises an agency rule or
 regulation as a bar to negotiations, it bears the burden of
 demonstrating that a "compelling need" exists for that particular rule
 or regulation.  American Federation of Government Employees, AFL-CIO,
 Local 1928 and Department of the Navy, Naval Air Development Center,
 Warminster, Pennsylvania, 2 FLRA 450 (1980).
 
 
    /3/ The Authority notes that the Agency filed no statement of
 position.
 
 
    /4/ In deciding that the proposal is within the duty to bargain, the
 Authority makes no judgment as to its merits.