22:0703(79)NG - NAGE Local R7-23 and Air Force, HQ 375th Air Base Group (MAC), Scott AFB, IL -- 1986 FLRAdec NG



[ v22 p703 ]
22:0703(79)NG
The decision of the Authority follows:


 22 FLRA No. 79
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, LOCAL R7-23
 Union
 
 and
 
 DEPARTMENT OF THE AIR FORCE 
 HEADQUARTERS 375th AIR BASE 
 GROUP (MAC), SCOTT AIR FORCE 
 BASE, ILLINOIS
 Agency
 
                                            Case No. 0-NG-1033
                                            19 FLRA No. 63
 
                       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 Association of
 Government Employees, Local R7-23 and Department of the Air Force,
 Headquarters 375th Air Base Group (MAC), Scott Air Force Base, Illinois,
 19 FLRA No. 63 (1985), the Authority held that the following Union
 proposal defining a competitive area within the Agency for purposes of a
 RIF was outside the duty to bargain:
 
          All bargaining unit positions in all areas serviced by the CCPO
       shall be in the same competitive area for reduction-in-force
       purposes.
 
    The Union's appeal of that decision to the United States Court of
 Appeals for the District of Columbia Circuit was pending when the D.C.
 Circuit issued its decision in Local 32, American Federation of
 Government Employees v. FLRA, 774 F.2d 498 (D.C. Cir. 1985), remanding
 two related cases involving the same issue /*/ and directing the
 Authority to address and resolve what the Court described as an apparent
 conflict between the Authority's findings in those cases 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.  On December 3, 1985, pursuant to the Authority's unopposed
 request, the D.C. Circuit remanded the instant case for further
 consideration in light of the Court's decision and the Authority's
 consideration of those cases on remand.  National Association of
 Government Employees, Local R7-23 v. FLRA, No. 85-1522 (D.C. Cir. Dec.
 3, 1985).
 
                              III.  Analysis
 
    The proposal at issue here seeks to define a competitive area within
 the Agency for RIF purposes which would include all bargaining unit
 positions serviced by the Consolidated Civilian Personnel Office (CCPO).
  As noted in the Authority's previous decision in this case, the CCPO
 services areas that are composed of both bargaining unit and
 nonbargaining unit employees, as well as appropriated fund and
 nonappropriated fund employees.
 
    In its Decision and Order on Remand in the Local 32 case referred to
 above, the Authority addressed the apparent conflict between the Local
 32 and ACT decisions, reconciling and distinguishing 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.
 
    The Union claims that its proposal is not intended to include
 nonbargaining unit employees or employees represented by another
 bargaining agent in the proposed competitive area but only to place all
 bargaining unit employees it represents in a single competitive area.
 Despite the Union's intent, applicable OPM regulations do not allow a
 competitive area to be defined in terms of positions (such as bargaining
 unit positions) but require all employees within the stated
 organizational or geographic boundaries to be included.  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 by
 operation o