22:0707(80)NG - NTEU and Nuclear Regulatory Commission -- 1986 FLRAdec NG
[ v22 p707 ]
The decision of the Authority follows:
22 FLRA No. 80 NATIONAL TREASURY EMPLOYEES UNION Union and NUCLEAR REGULATORY COMMISSION Agency Case No. 0-NG-1095 20 FLRA No. 21 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 Treasury Employees Union and Nuclear Regulatory Commission, 20 FLRA No. 21 (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: Our counterproposal in this area is to use commuting area as the area of competition and to allow normal personnel considerations to be used in determining the similarity of positions. 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 January 22, 1986, 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 Treasury Employees Union v. FLRA, No. 85-1749 (D.C. Cir. Jan. 22, 1986). III. Analysis The Union's proposal in this case would define a competitive area within the Agency for RIF purposes as the "commuting area." 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. As noted in our previous decision in this case, while the Union asserts that its proposal applies only to bargaining unit employees, applicable OPM regulations require all employees within the stated organizational or geographic boundaries of the competitive area 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 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 two cases remanded by the Court were American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA 754 (1984) (Local 32) and 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).