[ v11 p263 ]
The decision of the Authority follows:
11 FLRA No. 55 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES, FOOD AND DRUG ADMINISTRATION, REGION VII Agency Case No. O-NG-609 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues relating to the negotiability of the following Union proposal: The "Competitive Area" will be established by the Agency as all of those positions under the personnel administration and authority of the Principal Regional Official of DHHS-Kansas City, Missouri, within the commuting area of Kansas City, Missouri. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. The proposal at issue herein is, in all material respects, identical to Union Proposal 1 in National Treasury Employees Union and Department of Health and Human Services, Region IV, 11 FLRA No. 53 (1983). Thus, the Agency herein is essentially asserting, for the same reasons as it did in DHHS, Region IV, that negotiation of the proposal is barred by the same agency regulation, HHS Personnel Manual Instruction 351-1-40, /1/ which was raised therein. /2/ Therefore, based on the record in the present case, /3/ the Authority finds that the proposal at issue herein is within the duty to bargain for the reasons stated in DHHS, Region IV. Accordingly, pursuant to section 2420.10 of the Authority's Rules and Regulations, IT IS HEREBY ORDERED that the Agency shall upon request of the Union (or as otherwise agreed to by the parties) bargain concerning the proposal. /4/ Issued, Washington, D.C., February 3, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ HHS Personnel Manual Instruction 351-1-40 establishes the Agency's competitive areas and provides in pertinent part: 351-1-40 COMPETITIVE AREAS A. The normal subdivisions of the Department for reduction in force are outlined below: . . . . 5. Positions under a regional office's appointing authority form competitive areas as follows: a. *Each PHS Hospital, SSA Program Service Center, and SSA Data Operations Center is a separate competitive area.* b. *Positions within the Indian Health Service within each commuting area form a competitive area.* c. All other clerical, secretarial, and wage rate positions in a commuting area constitute a competitive area. d. For positions other than those covered by 5.a., b., or c. above, separate competitive areas are established region-wide within each of the following components: Office of Secretary, Public Health Service, Health Care Financing Administration, *Office of Child Support Enforcement,* Office of Human Development Services, and Social Security Administration. /2/ It is noted that when an agency raises an agency rule or regulation as a bar to negotiations, it bears the burden of demonstrating that a "compelling need" exists for that particular rule or regulation. American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 450 (1980). /3/ The Authority notes that the Agency filed no statement of position. /4/ In deciding that the proposal is within the duty to bargain, the Authority makes no judgment as to its merits.