33:0400(52)NG - - NTEU and Nuclear Regulatory Commission - - 1988 FLRAdec NG - - v33 p400



[ v33 p400 ]
33:0400(52)NG
The decision of the Authority follows:


33 FLRA No. 52

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

and

NUCLEAR REGULATORY COMMISSION

0-NG-1095

(20 FLRA 172, 22 FLRA 707)

DECISION AND ORDER ON NEGOTIABILITY ISSUES ON REMAND

October 27, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. Local 32, AFGE v. FLRA, Nos. 86-1447, 86-1642 (Aug. 16, 1988) (Local 32 II). The court granted the petitions for review filed by the unions in four consolidated cases and remanded the cases for further proceedings consistent with its opinion.

The question presented is whether the following Union proposal defining a competitive area within the Agency for purposes of a reduction-in-force (RIF) is negotiable under the Federal Service Labor-Management Relations Statute (the Statute):

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.

For the reasons discussed below, we conclude that the proposal concerns the conditions of employment of bargaining unit employees and is within the duty to bargain under the Statute.

II. History of the Case

A. Original Decision of the Authority

The Authority's original decision and order in this case held that the proposal was outside the duty to bargain because it directly determined conditions of employment of nonbargaining unit employees. National Treasury Employees Union and Nuclear Regulatory Commission, 20 FLRA 172 (1985). In view of this decision, the Authority did not address the Agency's contention that the proposal was not consistent with Government-wide regulations. 20 FLRA at 173 n.4.

B. Authority's Decision on Remand

The Union appealed this decision to the U.S. Court of Appeals for the D.C. Circuit. The Union's appeal was pending when the D.C. Circuit issued its decision in Local 32, AFGE v. FLRA, 774 F.2d 498 (D.C. Cir. 1985) (Local 32 I) which remanded to the Authority two related cases involving the same issue. Pursuant to the Authority's request, the D.C. Circuit remanded this case to the Authority for further consideration in light of the court's decision in Local 32 I.

The Authority decided on remand that the proposal was outside the duty to bargain because it directly determined conditions of employment of employees outside the bargaining unit. National Treasury Employees Union and Nuclear Regulatory Commission, 22 FLRA 707