22:0692(75)NG - NFFE Local 29 and Army, Corps of Engineers, Kansas City Dist. kansas City, MO -- 1986 FLRAdec NG
[ v22 p692 ]
The decision of the Authority follows:
22 FLRA No. 75 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Union and DEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS KANSAS CITY DISTRICT KANSAS CITY, MISSOURI Agency Case No. 0-NG-689 16 FLRA 75 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 Statute). II. Background In a previous decision in this case, 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), the Authority held, as relevant here, that the following Union proposal defining the competitive area to be used for a RIF was outside the duty to bargain: Union Proposal 2 Section 3. The following definition(s) shall apply: Competitive Area: The geographic area that usually constitutes one area for employment purposes. It includes any population center (or two or more neighboring areas) and the surrounding localities in which people live and reasonably can be expected to travel in their usual employment. 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, American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA 754 (1984) (Local 32), 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. 1985). III. Analysis The proposal at issue in this case would narrow the established competitive area encompassing four states by restricting it to the local commuting area. Even as more narrowly defined, the proposed competitive area would still include both bargaining unit employees and positions and nonbargaining unit employees and positions. In its Decision and Order on Remand in the Local 32 case referred to above, the Authority responded to various questions raised by the court. With respect to the apparent conflict between the Local 32 and ACT decisions, the Authority reconciled and distinguished the two cases as follows: 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. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA No. 49, slip op. at 8 (1986). Accordingly, the Authority concluded that the proposal in Local 32 was nonnegotiable because it would directly determine conditions of employment for employees outside the bargaining unit. As the proposal at issue in this case, similar to the one in Local 32, would establish a competitive area which necessarily includes nonunit employees within its boundaries, consistent with the requirements of applicable OPM regulations, it also is outside the mandatory obligation to bargain. IV. Conclusion Accordingly, for the reasons stated by the Authority in its Decision and Order on Remand concerning the proposal in the Local 32 case, the proposal at issue here also is nonnegotiable. Issued, Washington, D.C., July 24, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) The Union withdrew its appeal of the Authority's other holding in the case concerning reassignments (Union Proposal 1), and therefore the court did not have that matter before it.