14:0754(98)NG - AFGE Local 32 and OPM -- 1984 FLRAdec NG

 14 FLRA No. 98
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 32, AFL-CIO
 Union
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT
 Agency
 
                                            Case No. O-NG-914
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    The petition for review in this case comes before the Federal Labor
 Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 presents issues concerning the negotiability of the following Union
 proposal:
 
          The Competitive Area shall be the Washington Metropolitan Area.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determination.
 The proposal seeks to define a competitive area within the Agency for
 purposes of reduction in force.  The Agency asserts, and the Union does
 not dispute, that the proposed competitive area would encompass
 non-bargaining unit employees in addition to bargaining unit employees.
 The Agency contends, based upon this fact, that it has no obligation to
 bargain over the proposal.
 
    It is well established that the duty to bargain does not extend to
 matters concerning positions and employees outside the bargaining unit.
 International Federation of Professional and Technical Engineers,
 AFL-CIO, NASA Headquarters Professional Association and National
 Aeronautics and Space Administration, Headquarters, Washington, D.C., 8
 FLRA 212 (1982) and cases cited therein at note 5.  However, an agency
 generally may bargain over such matters if it so chooses.  See, e.g.,
 American Federation of Government Employees, AFL-CIO, Local 2 and
 Department of the Army, Military District of Washington, 4 FLRA 450
 (1980).  Insofar as the proposal herein would directly determine
 conditions of employment of non-unit employees, it concerns matters
 beyond the representation rights of the Union and is not within the
 Agency's obligation to bargain.  Service Employees' International Union,
 AFL-CIO, Local 556 and Department of the Army, Office of the Adjutant
 General, Hale Koa Hotel, Honolulu, Hawaii, 9 FLRA 686 (1982).
 
    By way of contrast, the Authority has in two types of cases found
 that proposals seeking to define competitive areas were within the duty
 to bargain.  The circumstances involved in those cases, however, were
 materially distinguishable from those present in the instant case.
 Thus, in National Treasury Employees Union and Department of Health and
 Human Services, Region IV, 11 FLRA No. 53 (1983) (Union Proposal 1), the
 Authority held that a proposed competitive area was within the duty to
 bargain.  In so holding, the Authority considered the only issue raised
 by the agency:  whether negotiation of the proposal was barred by virtue
 of conflict with an agency regulation for which a compelling need
 existed.  The applicability of the proposal to non-bargaining unit
 employees was not asserted by the agency as a ground for precluding
 negotiation of the proposal, and, hence, was not considered by the
 Authority.  /1/ In another set of circumstances the Authority also held
 a proposed competitive area to be within the duty to bargain.
 Association of Civilian Technicians, Pennsylvania State Council and
 Pennsylvania Army and Air National Guard, 14 FLRA No. 6 (1984) (Union
 Proposal 1).  In that case, the proposal effectively would have limited
 the competitive area to the bargaining unit and the Authority found that
 the agency had not asserted, nor was it otherwise apparent, that the
 proposal was inconsistent with laws or regulations applicable to
 National Guard technicians.  /2/
 
    Since, in this case, the record establishes that the proposal would
 directly determine conditions of employment of employees not within the
 bargaining unit, it must be concluded that the proposal is
 nonnegotiable.  Accordingly, pursuant to section 2424.10 of the
 Authority's Rules and Regulations, IT IS ORDERED that the petition for
 review be, and it hereby is, dismissed.  Issued, Washington, D.C., May
 25, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ It is now well established that the parties bear the burden of
 creating the record upon which the Authority will resolve negotiability
 disputes placed before it.  National Federation of Federal Employees,
 Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir.
 1982).
 
 
    /2/ In this regard 5 CFR, Part 351, which generally governs
 reductions in force in the Federal service does not apply to National
 Guard technicians.  5 CFR 351.201(f).