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 (1986). The Authority also noted that although the Union asserted the proposal applies only to bargaining unit employees, applicable Government-wide regulations require all employees within the specified organizational or geographic boundaries of the competitive area to be included. 22 FLRA at 709.

C. The Court's Decision on Review

On review, the court found that the Authority had not justified the conclusion that under the Statute there is no duty to bargain over proposals which directly determine the conditions of employment of employees outside the bargaining unit. Local 32 II, slip op. at 10-11. The court further found that the Authority had not justified departing from the approach of the National Labor Relations Board (NLRB) in the private sector. Under that approach, a proposal which "vitally affects" working conditions of unit employees is within the duty to bargain even if it affects nonunit employees. Id. at 11-12.

The court again remanded the case to the Authority and directed the Authority to:

reconsider the standard that obtains in the private sector. Under that standard, the expert adjudicator inquires only whether vital interests of unit employees would be affected by a given proposal, and permits bargaining over such proposals without regard to the potential effect on nonunit employees.

Id. at 14.

III. Discussion

In American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA No. 41 (1988) (OPM), which was consolidated with this case before the D.C. Circuit, we adopted the private sector test used by the NLRB. We held that in cases which do not involve an exclusion from the definition of "conditions of employment," we will examine only one factor in deciding whether a proposal concerns a condition of employment of bargaining unit employees: whether the proposal vitally affects the working conditions of employees in the bargaining unit. OPM, slip op. at 4.

We will find that a proposal is within the duty to bargain under the Statute if it (1) vitally affects the working conditions of unit employees, and (2) is consistent with applicable law and regulations.

IV. Conclusions

Applying this approach to the proposal in the instant case, we find that the proposal (1) vitally affects the working conditions of employees in the bargaining unit, and (2) is consistent with applicable law and regulations. Consequently, we find that the proposal is within the duty to bargain.

The proposal defines a competitive area for a reduction-in-force (RIF). As a result, it determines the employees with whom bargaining unit employees must compete for job retention during a RIF. Since it is concerned with whether bargaining unit employees will retain their jobs, the proposal clearly affects vital interests of those employees.

Furthermore, we reject the position of the Agency that the proposal is not negotiable because the Union intends the proposal only to apply to the bargaining unit.

Under 5 C.F.R. § 351.402(b), a competitive area must include all employees within the defined area. We find, contrary to the expressed intent of the Union, that the proposal clearly includes all employees within the defined competitive area. We do not base negotiability determinations on a union's statement of intent that is inconsistent with the express language of the proposal. For example, Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436, 1443 (1987). Therefore, contrar