22:0478(49)NG - AFGE Local 32 and OPM -- 1986 FLRAdec NG

[ v22 p478 ]
The decision of the Authority follows:

 22 FLRA No. 49
                                            Case No. 0-NG-914
                                                14 FLRA 754 
                       DECISION AND ORDER ON REMAND
                         I.  Statement of the Case
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the District of Columbia Circuit.
 The question involved is whether "competitive areas" within an agency
 for reduction-in-force (RIF) purposes are within the duty to bargain
 under the Federal Service Labor-Management Relations Statute (the
                              II.  Background
    In a previous decision in this case, American Federation of
 Government Employees, Local 32, AFL-CIO and Office of Personnel
 Management, 14 FLRA 754 (1984) (Local 32), the Authority held a Union
 proposal defining the competitive area to be used for RIF to be outside
 the duty to bargain.  On review, the D.C. Circuit found an apparent
 inconsistency between this Authority finding and the Authority's finding
 in Association of Civilian Technicians, Pennsylvania State Council and
 Pennsylvania Army and Air National Guard, 14 FLRA 38 (1984) (ACT) that a
 proposed competitive area was within the duty to bargain.  It remanded
 this case and another case with the same holding, National Federation of
 Federal Employees, Local 29 and Department of the Army, U.S. Army Corps
 of Engineers, Kansas City District, Kansas City, Missouri, 16 FLRA 75
 (1984), and directed the Authority to address and resolve the apparent
 conflict between its Local 32 and ACT decisions.  Local 32, American
 Federation of Government Employees v. FLRA, 774 F.2d 498 (D.C. Cir.
           III.  Consideration of D.C. Circuit in Remanding Case
    The D.C. Circuit highlighted four considerations in remanding this
 case to the Authority to resolve the apparent conflict between these two
          A.  The Authority had previously adhered to the principle that
       a proposal may be a mandatory subject of bargaining despite its
       effect on nonbargaining unit employees;
          B.  the Authority's decisions in these cases appear to be at
       odds with a familiar principle of private sector labor law that a
       proposal concerning terms and conditions of employment is within
       the duty to bargain despite its effects on third parties;
          C.  the agency involved in this case had previously bargained a
       similar provision defining competitive area;  and
          D.  the Authority's attempt to distinguish the two cases was
       incomplete because it did not and could not state that the ACT
       proposal had no effect on nonbargaining unit employees.
                               IV.  Analysis
          A.  The Authority's Analysis of Proposals Which Affect
                Employees Outside the Bargaining Unit
    In the Federal as in the private sector, the statutory obligation to
 negotiate extends only to conditions of employment within the bargaining
 unit.  Matters involving individuals outside the employment relationship
 normally are excluded.  /1/
    In the Federal sector, laws and regulations sometimes require uniform
 treatment of employees based upon considerations such as fairness,
 equity and effective, efficient administration of Government.  As a
 result, some conditions of employment of bargaining unit employees may
 be inseparable from those of nonunit employees.  The Authority has, in a
 number of instances, been presented with bargaining proposals regarding
 the conditions of employment of unit employees which also affect
 employees outside the unit.  Proposals relating to RIF frequently have
 this result because controlling Government-wide regulations mandate
 uniform procedures.  In such circumstances, the Authority has attempted
 to strike an appropriate balance between the right of the union to
 negotiate over the conditions of employment of bargaining unit employees
 and the right of the agency to set the conditions of employment of
 nonbargaining unit employees;  indeed, the requirement that they be set
 consistent with Govenment-wide rules and regulations.  This approach is
 consistent with the analysis and discussion by the Supreme Court in its
 Allied Chemical decision where it noted that, "other considerations
 (besides the impact on the interests of bargaining unit employees) such
 as the effect on the employer's freedom to conduct its business, may be
 equally important." 404 U.S. 157, 180 n. 19 (1971).  On the one hand, it
 is the Authority's view that the scope of bargaining would be unduly
 restricted by a rule limiting the bargaining obligation to negotiable
 proposals which have absolutely no effect on employees outside the
 bargaining unit.  Therefore, it has not adopted such a rule.  On the
 other hand, a rule requiring negotiations on proposals which actually
 establish conditions of employment of nonunit employees goes beyond the
 requirements of the Statute and might unduly impede the Agency in
 functioning effectively and efficiently.  To balance these conflicting
 rights, the Authority has distinguished (1) permissively negotiable
 proposals which would affirmatively establish or define a condition of
 employment for nonunit employees or positions /2/ from (2) mandatorily
 negotiable proposals which would affect conditions of employment of
 nonunit employees or positions only to a lesser degree.  /3/
                B.  Departure from Private Sector Approach
    The Authority is of course aware that the approach it has taken in
 administering the Statute differs somewhat from that adopted by the
 National Labor Relations Board.  The Board focuses on whether a matter
 "vitally affects" terms and conditions of employment of unit employees
 in resolving questions concerning the scope of the duty to bargain in
 the private sector.  See note 1, supra.  Congress, however, did not
 intend to require that Federal sector labor relations be a mirror image
 of the private sector scheme.  There is no indication in either the
 Statute itself or its legislative history that Congress intended the
 substantive case precedent of the National Labor Relations Board to
 apply in the Federal sector.  There is indication, rather, that Congress
 perceived a need to accommodate circumstances present in Government
 which are different from those in the private sector.  In section 7101,
 Congress stated its purpose in passing the Statute as "to establish
 procedures which are designed to meet the special needs of Government."
 Furthermore, that section mandates that the Statute be "interpreted in a
 manner consistent with the requirements of an effective and efficient
    Additionally, the Statute's antecedents are in the Executive Order
 program rather than the National Labor Relations Act.  This was
 emphasized by Congress in passing section 7135(b) of the Statute which
 expressly provides for the continuation of policies, regulations,
 procedures and decisions which emanated under the Executive Order
 program, unless they are superseded by the Statute or by regulations or
 decisions issued under the Statute.  The Authority's approach to dealing
 with proposals which effect employees outside the bargaining unit is
 congruent with previous Federal sector practice as contrasted with
 private sector practice.  /4/
    Under the Statute, in determining the negotiability of proposals
 which affect the conditions of employment of unit as well as non-unit
 employees, the Authority will balance the right of the union to
 negotiate over the conditions of employment of bargaining unit employees
 and the right of the agency to set the conditions of employment of
 nonbargaining unit employees.  In weighing the parties' respective
 rights, we will determine whether the nature and degree of the impact of
 the proposal is so intrinsically related to the working conditions of
 nonunit employees so as to invade the purview of other unit
 representatives or require the agency to act in a way that will have a
 significant effect on the rights of employees not represented by the
 union offering the disputed proposal.  In such a case, management is not
 required to bargain.  However, where the proposal has only a limited or
 indirect effect on the interests of employees outside the bargaining
 unit it will be subject to appropriate negotiations.
    This approach is consistent with earlier Federal sector practice as
 well as with our considerations in previous Authority precedent and
 differs from private sector considerations inasmuch as the Authority
 will look to the effect of the proposal on nonunit employees and will
 not limit our examination to the interest of bargaining unit members.
        C.  Previous Bargaining by the Agency on a Similar Proposal
    The Authority has never held that negotiating over competitive areas
 is prohibited.  However, it has held that an agency is not obligated to
 bargain over proposals which directly determine conditions of employment
 of nonbargaining unit employees even though it can bargain over these
 matters if it chooses to do so.  Therefore, under Authority precedent
 any agency could properly bargain over the definition of a competitive
 area which would include nonunit employees, as the Agency here
 apparently did in the past.  Nonetheless, in the Federal as in the
 private sector, previous bargaining over a permissive matter would not
 prevent an agency negotiating a new agreement from changing its position
 and refusing to bargain over an elective subject.  Where an agency, as
 here, raises the asserted issue as a bar to negotiations, the Authority
 will not order the parties to bargain because of their prior bargaining
         D.  The Authority's Holdings Concerning Competitive Areas
                in the Local 32 and ACT Cases
    For the employees involved in the Local 32 case, as for most Federal
 employees, a RIF must be carried out in accordance with regulations
 prescribed by the Office of Personnel Management (OPM) pursuant to 5
 U.S.C. Section 3502.  These regulations establish a comprehensive system
 for determining which employees will be retained in the positions which
 remain in an agency undergoing a RIF.  Within that system "competitive
 area" constitutes the basic geographic and organizational boundaries
 within which employees will compete for retention.  The OPM regulations
 do not allow competitive area to be defined in terms of types of
 positions, as, for example, bargaining unit positions.  Consequently, as
 a practical matter, most competitive areas which are established under
 OPM regulations will include both bargaining unit and nonunit positions
 and employees.  /5/
    In Local 32, the proposal would have defined the competitive area for
 RIF as the Washington Metropolitan Area.  The Agency asserted and the
 Union did not dispute that the proposed competitive area would include
 nonbargaining unit employees.  The Authority considered whether the
 nature and degree of the impact of the proposal was so intrinsically
 related to the working conditions of nonunit employees so as to directly
 determine and prescribe their conditions of employment.  Our result was
 dictated by the fact that the disputed proposal, by defining the
 competitive area as the Washington Metropolitan Area, would undoubtedly
 include unit and nonunit employees.  Acceptance of the Union's
 designation of competitive area would allow it to determine with whom
 nonunit employees would compete for retention rights in the event of a
 RIF and further allow it to prescribe the area in which the competition
 would take place.  Since the Authority determined that under the Statute
 an agency has no duty to bargain with a union to establish the
 conditions of employment of nonbargaining unit employees, it held the
 proposed competitive area to be outside the Agency's obligation to
    In its decision in ACT, in contrast, the Authority found the proposed
 competitive area to be within the Agency's duty to bargain.  This
 finding was based upon circumstances viewed as being materially
 distinguishable from those present in the Local 32 case.  The proposal
 in ACT essentially defined a competitive area for RIF limited to the
 bargaining unit.  As previously mentioned, such a competitive area would
 not be consistent with the OPM regulations applicable in the Local 32
 case.  However, in the ACT case, as distinguished from Local 32, the
 bargaining unit consists of National Guard Technicians who are not
 subject to those OPM regulations.  See 5 CFR 351.202(c)(5) (1986).
    The proposal in ACT for that reason would have directly determined or
 defined the competitive area only for bargaining unit positions and
 employees.  It also undeniably would have affected or influenced in a
 limited, indirect way the potential scope of any competitive area for
 nonbargaining unit employees by excluding them from the area negotiated
 for the bargaining unit.  However, the proposal would not otherwise
 limit or prescribe a competitive area for those nonunit employees.
 Hence, it did not define or directly determine a condition of their
    In summary, the proposals in both the ACT and Local 32 cases would
 have directly determined the conditions of employment of bargaining unit
 employees.  The critical difference between the proposals lies in the
 nature and degree of the impact they would have on nonunit employees.
 The competitive area proposed in ACT only affected conditions of
 employment of nonunit employees indirectly:  it excluded them from the
 negotiated competitive area.  The proposed competitive area in Local 32,
 in contrast, consistent with the requirements of applicable OPM
 regulations, encompassed nonbargaining unit employees in the negotiated
 competitive area.  It directly determined, that is, prescribed, their
 competitive area.
    Consistent with this analysis, in all cases since Local 32 dealing
 with competitive areas where an agency has objected to bargaining based
 upon the fact that a proposed competitive area would directly determine
 nonunit employees' conditions of employment, the Authority has held the
 proposals to be outside the mandatory obligation to bargain.
                              V.  Conclusion
    Because the proposal in Local 32 would directly determine conditions
 of employment for employees outside the bargaining unit, it is
    Issued, Washington, D.C., July 9, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) See sections 7103(a)(12) and 7114(a)(1) of the Statute.  For
 discussion of the private sector approach, see Allied Chemical and
 Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971).
    (2) See, for example, Service Employees' International Union,
 AFL-CIO, Local 556 and Department of the Army, Office of the Adjutant
 General, Hale Koa Hotel, Honolulu, Hawaii, 9 FLRA 687 (1982) and
 International Federation of Professional and Technical Engineers,
 AFL-CIO, NASA Headquarters Professional Association and National
 Aeronautics and Space Administration, Headquarters, Washington, D.C., 8
 FLRA 212 (1982).
    (3) See, for example, National Treasury Employees Union and Internal
 Revenue Service, 7 FLRA 275 (1981) (Proposal 2).
    (4) See, for example, Texas ANG Council of Locals, AFGE and State of
 Texas National Guard, 4 FLRC 154 (1976), in which a proposal concerning
 the filling of threshold supervisory positions was found to be outside
 the duty to bargain and Lodge 2424, IAM-AW and Kirk Army Hospital and
 Aberdeen Research and Development Center, Aberdeen, Md., 1 FLRC 526,
 532-33 (1973), where a proposal which involved a procedure within which
 unit employees competed with outside applicants for jobs was found to be
    With respect to cases concerning comp