[ v14 p754 ]
The decision of the Authority follows:
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).