33:0507(69)NG - - NFFE Local 29 and Army, Army Corps of Engineers, Kansas City District, Kansas City., MO - - 1988 FLRAdec NG - - v33 p507
[ v33 p507 ]
The decision of the Authority follows:
33 FLRA No. 69
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
DEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS
KANSAS CITY DISTRICT
KANSAS CITY, MISSOURI
(16 FLRA 75, 22 FLRA 692)
DECISION AND ORDER ON NEGOTIABILITY ISSUES ON REMAND
October 28, 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 proposal is negotiable under the Federal Service Labor-Management Relations Statute (the Statute):
Union Proposal 2
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.
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 for two reasons. First, the Authority found that the record established that the proposal directly determined conditions of employment of nonbargaining unit employees. Second, the Authority found that the Union's explanation, that the proposal only applied to employees competing for bargaining unit positions, rendered the proposal inconsistent with Government-wide regulations. 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).
B. The Court's Decision on Review of Original Authority Decision
On review, the U.S. Court of Appeals for the D.C. Circuit found an apparent conflict between the Authority's original decision in this case and the Authority's decision in Association of Civilian Technicians, Pennsylvania State Council and Pennsylvania Army and Air National Guard, 14 FLRA 38 (1984). Local 32, AFGE v. FLRA, 774 F.2d 498 (D.C. Cir. 1985). The court also found an apparent conflict with the "familiar principle of private labor law, that a proposal concerning 'terms and conditions of employment' is within the employer's duty to bargain, despite its potential effects on third parties." 774 F.2d at 503 (footnote and citations omitted). The court remanded the case to the Authority to address and resolve these apparent conflicts.
C. The Authority's Decision on Remand
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 Federation of Federal Employees, Local 29 and Department of the Army, U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 22 FLRA 692 (1986).
The Authority stated that it applied a balancing test in ruling on proposals concerning conditions of employment of bargaining unit employees which also affect employees outside the bargaining unit. The Authority stated that this test attempted to strike an appropriate balance between the right of a union to negotiate over the conditions of employment of bargaining unit employees and the right of an agency to determine unilaterally the conditions of employment of nonbargaining unit employees. In balancing these conflicting rights, the Authority distinguished between (1) proposals which directly determined the conditions of employment of nonunit employees, and (2) proposals which affected conditions of employment of nonunit employees only indirectly.
D. 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 the departure from the approach of National Labor Relations Board (the NLRB) in the private sector. Id. at 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.
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 to determine whether there is a duty to bargain over proposals concerning conditions of employment of unit employees which also affect employees or positions outside the unit. 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.
Applying this approach to the Union's proposal, 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.
On reexamination of the proposal, we conclude, contrary to the Authority's original ruling, that the proposal is consistent with Government-wide regulations set forth in 5 C.F.R. part 351, subpart D.
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. See also Agency Statement of Position at 7 ("Under the union's proposal, the competitive area would be. . . composed of bargaining unit employees and positions and nonbargaining unit employees and positions."). 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