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The decision of the Authority follows:
17 FLRA No. 49 DEPARTMENT OF HEALTH AND HUMAN SERVICES FOOD AND DRUG ADMINISTRATION, REGION II Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL NO. 242 Charging Party Case No. 2-CA-1162 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety. Thereafter, the Charging Party and the General Counsel filed exceptions to the Judge's Decision with supporting briefs, and the Respondent filed oppositions to the General Counsel's and the Charging Party's exceptions. /1/ Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order, as modified herein. The Authority adopts the Judge's conclusion that the Respondent did not violate section 7116(a)(1) and (5) of the Statute when it refused to bargain over the Charging Party's proposal regarding reduction-in-force competitive areas. Thus, the Authority agrees with the Judge that the proposal would directly determine working conditions of employees outside the Charging Party's exclusively-recognized unit. In this regard, the Authority finds that the proposal on its face would define the competitive area of non-unit employees in the San Juan District Office. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA 754 (1984). /2/ ORDER IT IS ORDERED that the complaint in Case No. 2-CA-1162 be, and it hereby is, dismissed. Issued, Washington, D.C., March 27, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY Case No.: 2-CA-1162 -------------------- ALJ$ DECISION FOLLOWS -------------------- Susan Cohen DeStefano, Esq. For the Respondent Allan W. Stadtmauer, Esq. For the General Counsel Sidney P. Morse For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on January 17, 1983 by the Regional Director for the Federal Labor Relations Authority, New York, New York Region, a hearing was held before the undersigned on April 11, 1983 at New York, New York. This is a proceeding arising under the Federal Service Labor-Management Relations Statute (herein called the Statute). It is based on a first amended charge filed on December 20, 1982 by American Federation of Government Employees, AFL-CIO, Council No. 242 (herein called the Union or AFGE Council No. 242) against Department of Health and Human Services, Food and Drug Administration, Region II (herein called Respondent). The Complaint herein alleged, in substance, that since June 10, 1981 Respondent (a) rejected the Union's proposals for bargaining re reduction-in-force competitive areas for unit employees as being nonnegotiable since they conflicted with higher-level agency regulations that could not be modified at the lower level; (b) refused to bargain with the Union re competitive areas to be utilized in a reduction-in-force affecting unit employees-- all in violation of Sections 7116(a)(1) and (5) of the Statute. Respondent filed its Answer dated February 11, 1983 wherein it admitted the foregoing allegations but denied the commission of any unfair labor practice. It averred that the refusal to bargain was based on DHHS Instruction 351-1 defining competitive areas in the Region; that no determination has been made by the Authority that no compelling need exists for this Agency-wide rule, and the Instruction is thus nonnegotiable; that a decision herein should be reserved pending the outcome of two other cases involving the same issue. At the hearing the parties introduced into evidence a "Stipulation of Facts" which incorporated therein, by reference, 16 exhibits that are annexed to the stipulation. None of the parties desired to introduce testimony through witnesses. Briefs were filed thereafter with the undersigned which have been duly considered. Upon the entire record herein, including the stipulated facts and exhibits in evidence, I make the following findings and conclusions: Findings of Fact /3/ 1. At all times material herein the Union has been the collective bargaining representative of all professional and non-professional employees of the New York, New York; Newark, New Jersey; and Buffalo, New York District office s of the Food and Drug Administration (FDA), Region II, excluding all professional and non-professional employees of the office of the Regional Director, Region II, all employees in the San Juan, Puerto Rico, District office, and other employees not relevant to this matter. 2. At all times material herein, the National Treasury Employees Union, Chapter 210 has been the collective bargaining representative of all professional and non-professional employees of the office of the Regional Director, Region II, DHHS, as well as all professional and non-professional employees of the Region II office of the Public Health Service. Five NTEU bargaining unit employees were and are physically located at FDA headquarters in Brooklyn, New York. 3. At all times material herein, no collective bargaining agreement has existed between the Union/AFGE Council No. 242 and Respondent covering all employees in the unit described in paragraph 1 above. 4. Prior to August 22, 1979 employees in Respondent's New York, New York District, Newark, New Jersey District, and its Buffalo, New York District were represented for the purposes of collective bargaining in separate units by AFGE Local 2637, Local 3485 and Local 3174 respectively. On August 22, 1979 said units were consolidated pursuant to a Certification of Consolidation of Units issued by the Regional Director, Region II, and were thereafter represented in the consolidated unit described in paragraph 1 above. 5. Prior to August 22, 1979 collective bargaining agreements were in effect between Respondent's Districts and the Local Unions referred to in paragraph 4 above. There has been no express agreement between the Respondent and the Union herein to continue the predecessor agreement as being in full force and effect following the consolidation of units. Said agreements have, however, been generally viewed by the parties as guides for continuing regular working conditions. Where necessary, the parties have expressly discussed and mutually agreed to the continuation or application of given provisions of the predecessor agreements to specific work situations which have arisen, but no such agreements are relevant to this proceeding. 6. In mid-May, 1981 Respondent notified the Union of a proposed reduction-in-force (RIF) affecting employees in Public Health Service (PHS) Region II, and therefore potentially affecting employees in FDA, Region II, affording the Union the opportunity to bargain concerning the impact and implementation of the said RIF. 7. By memorandum dated May 18, 1981 Respondent's Regional Food and Drug Director, Caesar Roy, forwarded to Sidney Morse, President of the Union herein, a memo from William F. Confalone, Respondent's Labor Relations Officer re "Negotiability of RIF Procedures." This memo stated, inter alia, that Department Instruction 351-1 serves as authority for those areas on which the Department has discretion concerning bargaining; also that matters already determined at the Department level, as well as those within its discretion, would be decisions made above the level for which the Council has recognition and, thus, outside the bargaining obligation. Listed were various subjects deemed not negotiable, including one designated as: Establishing Competitive Areas 8. By memorandum dated May 28, 1981 addressed to Respondent's Regional Food and Drug Director, Union President Morse demanded negotiations of the procedures that would be followed to effect any RIF, and the arrangements for unit employees who might be adversely affected. In the memo Morse listed 10 subjects to be negotiated, including "Establishment of competitive areas." 9. Representatives of the Union and Respondent met on or about June 8, 1981 to discuss the request to negotiate made by AFGE Council No. 242. Respondent's Regional Director requested that the Union present specific proposals on the 10 enumerated areas in its May 28, 1981 memorandum, so that Respondent could analyze the proposals, develop counter proposals, and enter into negotiations. 10. By memorandum dated June 8, 1981, and entitled "COMPETITIVE AREAS," Morse proposed to Respondent's Regional Food and Drug Director that competitive areas be set up solely within the FDA, Region II, within each District office, and be applicable to all employees of the District Office. He stated that no one from another primary operating component of the Department of Health and Human Services would be a part of an FDA reduction-in-force, nor would anyone from another primary operating component displace an employee of FDA Region II unless such displacement was dictated by law. The competitive area in FDA Region II would be the District including its Resident posts. 11. By memorandum dated June 10, 1981, and entitled "Negotiations on Competitive Areas," Respondent's Regional Food and Drug Director, Caesar Roy, advised Morse that the Union's June 8 proposal re competitive areas was inconsistent with Department of Health and Human Services policy as described in Departmental Instruction 351-1-40. Thus, the proposals on competitive areas were rejected on the basis that they were nonnegotiable. 12. In a letter dated June 12, 1981 Morse wrote John Mulholland, Director, Labor-Management Services Department, AFGE and requested that he institute a negotiability appeal on behalf of the Union. Morse attached copies of the memos of May 28, June 8, and June 10 (set forth respectively in paragraphs 8, 10, and 11 above). 13. In a letter dated June 25, 1981 Mulholland requested that Caesar Roy furnish the Union the employer's written allegations concerning the nonnegotiability of the Union's proposals on competitive areas. 14. In a letter dated July 9, 1981 Caesar Roy informed Mulholland that the subject of competitive areas was not within his discretion to negotiate, but was imposed upon FDA, Region II by the Department of Health and Human Services, Region II, under law, regulation and Departmental Instruction 351-1-40. 15. By memorandum dated August 5, 1981 Union President Morse formally demanded of the Regional Food and Drug Director that Respondent return to the bargaining table with an individual who had the authority to negotiate competitive areas in any RIF that could impact on the members of the Union; that the person should be capable of negotiating any areas of a RIF called for in the Union's earlier memo on the subject. 16. By memorandum dated August 5, 1981 Caesar Roy responded to Morse's August 5 memo re the proposals to negotiate the subject of competitive areas in a reduction-in-force. Roy referred Morse to the earlier correspondence, as set forth herein in paragraph 11 and 14 above, stating that such documents expressed his position re the issue of negotiation on competitive areas. 17. The referenced Departmental Instruction 351-1, was originally established in 1973 as HEW Instruction 351-1, with minor modifications in 1980 and 1982. Neither of these modifications has changed the language of the pertinent portion of the Instruction at 351-1-40A.(5)(d) on COMPETITIVE AREAS. The competitive area established in the Departmental Instruction would "include non-members of the Union's bargaining unit, including employees represented by NTEU under the certification referenced in paragraph 2 above, as well as supervisory and managerial employees. 18. Department of Health and Human Services Instruction 351-1-40, effective during the period in question, provided inter alia: 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: . . . . d. For positions other than those covered by 5.a., b., or c. above, /4/ separate competitive areas are established region-wide within each of the following components: Office of the Secretary, Public Health Service, Health Care Financing Administration, Office of Child Support Enforcement, Office of Human Development Services, and Social Security Administration. (Underscoring supplied) 19. No negotiability appeal was instituted on the Union's proposals on competitive areas. 20. From June 10, 1981 and at all times thereafter the Union (AFGE Council No. 242) has made no other proposals pertaining to any other aspect of the reduction-in-force which is the subject of this complaint, and Respondent has refused and continues to refuse to negotiate over the proposal which was made by the Union referred to in paragraph 10 above, for the reasons specified in paragraphs 11, 14, and 16 above. 21. No reduction-in-force which has taken place since June 10, 1981, has affected bargaining unit employees in FDA Region II. 22. Since the date of the filing of the instant charge, the Authority has determined that there is no compelling need for HHS Instruction 351-1-40. Respondent does not assert a compelling need defense in this case. 23. The issue presented herein is whether the Respondent failed or refused to consult or negotiate in good faith in violation of Sections 7116(a)(1) and (5) of the Statute by rejecting the Union's proposals for bargaining regarding reduction-in-force competitive areas for unit employees as being nonnegotiable because they conflicted with higher level agency regulations which could not be modified at the local level. /5/ Conclusions In support of an alleged violation of Sections 7116(a)(1) and (5) of the Statute it is contended that no justification existed for Respondent's refusal to negotiate as to the Union's proposals re reduction-in-force competitive areas. It is argued that the Authority has deemed competitive areas to be negotiable as to substance. Further, that no merit may be found in Respondent's insistence that the said proposals conflict with higher level agency regulations since the Authority has concluded no compelling need exists for such regulation, or in this instance, Instruction 351-1-40. Finally, General Counsel avers the bargaining proposals would not determine conditions of non-unit employees so as to render them nonnegotiable. Respondent, contrariwise, asserts that its higher level Instruction 351-1-40 warrants a refusal to bargain on the Union's proposals. It maintains that these proposals would determine conditions of employment of employees outside the Union's bargaining unit; that its assertion of nonnegotiability, due to a conflicting agency-wide regulation, was made in good faith. Accordingly, it maintains that the rejection of the proposals for bargaining on competitive areas as nonnegotiable did not constitute a violation of the Statute. The Union insists it was merely attempting to establish a competitive area within FDA in Region II. It contends that while the June 8, 1981 proposals might impact upon employees outside the bargaining unit, the effect was of a 'spillover' nature. Further, the Union argues that the limitation of a competitive area, as proposed, would not result in determining conditions of employment concerning non-unit employees. Whatever incidental effect it might have upon those outside the bargaining unit, it is urged, would not cause the proposal to become a non-bargainable matter. A competitive area is defined in 5 CFR 351.402. The term refers to the part of an agency within which an employee, who occupied an abolished position, may compete with other employees to determine which one shall be retained in the agency. The area may be described in organizational and geographic terms. Typically, the competitive area includes a part of an agency wherein employees are assigned under a single administrative authority. Under 351.402(c) and (d) smaller and larger areas than the standard may be established. The Authority has made several recent determinations regarding competitive areas and the negotiability of proposals involving the use thereof in the event of a reduction-in-force. Thus, in National Treasury Employees Union and Department of Health and Human Services, Region IV, 11 FLRA No. 53 (1983), it held that agencies may establish competitive areas through negotiation provided that such areas are in conformance with standards promulgated by OPM, and not otherwise inconsistent with law, rule, or regulations - all pursuant to 5 U.S.C. 3502. Where a particular proposal by a union does not require an agency to act beyond its discretion under applicable OPM regulations, or to agree to a competitive area inconsistent with applicable law or regulation, the proposal re competitive area is negotiable. See American Federation of Government Employees and General Services Administration, 11 FLRA No. 54 (1983). In addition to the foregoing determinations by the Authority, the latter also had occasion to consider the same HHS Personnel Manual Instruction 351-1-40 as is involved in the case at bar. Thus, in National Treasury Employees Union and Department of Health and Human Services, Region IV, supra, the agency contended a union proposal re establishing a competitive area was nonnegotiable. It claimed that negotiations were barred by the agency-wide regulation - Instruction 351-1-40 - since a compelling need existed for the regulation under the criteria presented by Section 2424.11 of the Authority's Rules and Regulations. Concluding that no compelling need existed for the said regulation, the Authority held that the union proposal for establishing a competitive area was negotiable and within the agency's duty to bargain. The Authority has had occasion to consider the negotiability of proposals concerning competitive areas involving a reduction-in-force. In 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 No. 81 (1982) the union proposed the establishment of a competitive area for RIF purposes which included bargaining unit employees and employees in another unit of exclusive representation. It was held that the agency had no obligation to bargain on said proposal. As proposed, unit employees would be given rights to non-unit positions, and thus non-unit employees could be displaced from their employment. Accordingly, the Authority concluded the proposal determined the condition of employment of non-unit employees. It reasoned that such a proposal reached beyond the representation rights of the exclusive representative. In a similar view, the Authority found a union proposal nonnegotiable which declared that in a RIF the bargaining unit members could bump employees in other competitive levels. /6/ See 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 No. 46 (1982). The duty to bargain, declared the Authority, does not extend to matters concerning positions and employees outside the bargaining unit. Under the proposal by the union in the cited case the rights of employees outside the bargaining unit could be prescribed thereby. Since, therefore, the proposal would result in its being applied uniformly to non-unit as well as unit employees, it was held that the agency could not be required to negotiate thereon. No case has been cited, nor uncovered, which involved the precise situation as involved herein. The General Counsel takes the position that the Service Employees' International Union et al., supra, is distinguishable from the one at bar. After due and careful consideration, however, I have concluded that the rationale and holding in said case has applicability to the instant matter. It is true that the proposal by the Union herein re the establishment of a competitive area within FDA in Region II is sanctioned by the federal regulations (5 CFR 351.402). Moreover, the area as proposed does not encompass a non-bargaining unit as was true in the cited case, supra. However, the proposed language herein also states "nor will anyone from another POC /7/ displace an employee of FDA Region II unless such displacement is dictated by law". (Underscoring supplied). Apart from a RIF at FDA, Region II, this clause precludes an employee at another division of the Department from ever displacing or bumping an employee in this FDA region. As such, the proposal is concerned with more than the retention rights of the bargaining unit employees in the event of a reduction-in-force. It extends to the right of reassignment or transfer of employees outside the bargaining unit. Thus the proposal is not limited to a reduction-in-force at FDA, Region II, but deals with employment conditions and rights of non-unit employees. An employee from outside FDA, Region II may not, under this proposal, be hired to work in this competitive area and displace someone in the bargaining unit whose displacement occurs under any circumstances. A limitation or restriction in regard to such article, be it transfer, hire or reassignment, would necessarily determine the conditions of employment of such individual who has been employed in the Department as a non-unit employee. In its brief General Counsel insists that a bargaining proposal is within the duty to bargain even though it affects conditions of employment of non-unit employees. The case of National Treasury Employees Union and Internal Revenue Service, 7 FLRA No. 42 (1981) is cited in support thereof. Said case, however, involved proposals by the union to management which would establish procedures for filling vacancies within the bargaining unit to be followed before such vacancies could be filled for non-bargaining unit employees. It was expressly provided that the employer could consider applicants from other sources. /8/ Accordingly, the Authority declared such a proposal to be negotiable since the agency would not have been prevented from excusing its statutory authority. Moreover, the procedure was well within the duty to bargain under Section 7106(b)(2) of the Statute. The case at bar presents a situation far different, for we are not concerned herein with a proposal regarding procedures to be followed in filling vacancies. The Union herein would prevent anyone outside the bargaining unit from being selected to displace any unit employee. Under Section 7106(a)(2)(A) management's right to hire and assign employees are preserved. Restricting the transfer of an employee to the competition area interferes with that right. Moreover, it extends beyond the conditions of employment of bargaining unit employees, which is a predicate for imposing upon an employer an obligation to bargain under Sections 7103(a)(12) and (14) of the Statute. In sum, I am constrained to conclude that the bargaining proposal made by the Union would, in fact, bear on and prescribe working conditions of employees outside the FDA, Region II unit. In this posture, the Union's submission would determine rights of employees in non-bargaining units. Hence, the proposal is nonnegotiable and, as such, does not impose a bargaining obligation upon the Respondent. Accordingly, I conclude the latter has not refused to bargain as alleged in the complaint in violation of Sections 7116(a)(1) and (5) of the Statute; and, further, it is recommended that the Complaint herein be dismissed. /9/ Having concluded that Respondent did not violate Sections 7116(a)(1) and (5) of the Statute, it is recommended the Authority adopt the following order: ORDER It is ordered that the Complaint herein be, and the same hereby is, dismissed. WILLIAM NAIMARK Administrative Law Judge Dated: November 3, 1983 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Contrary to the Respondent's contention, the Charging Party's exceptions were timely filed. Thus, the Authority's records indicate an extension of time to file exceptions was granted until January 5, 1984, and that the Charging Party's exceptions were filed on that date. /2/ In view of this disposition, the Authority finds it unnecessary to reach and does not adopt the Judge's finding that the proposal was nonnegotiable because it interfered with management's right to hire and assign employees under section 7106(a)(2)(A) of the Statute. /3/ Except for a few variations, which results from an attempt by the undersigned to clarify language or include additional evidence, the findings track the Stipulation of Facts entered into by the parties herein. /4/ 5/(a)(b) and (c) refer respectively to separate competitive areas for a) PHS Hospital, SSA Program Service Center, SSA Data Operations Center; b) Indian Health Service positions; c) All other clerical, secretarial and wage rate positions in a commuting area. /5/ Although the parties have so framed the issue, the undersigned is constrained to broaden it to consider whether the proposal by the Union is negotiable and require Respondent to bargain thereon. /6/ A competitive level includes positions in a competitive area in the same grade or occupational level. These positions are sufficiently alike in various respects so that an incumbent therein may be assigned to any of the other positions. In such an instance, it would not change terms of his appointment or unduly interrupt the work program. (5 CFR 351.403). /7/ This refers to an operating component or, as later described, an operating division. /8/ The union in the cited case asserted that the proposal was not intended to prevent the agency from making selections from any appropriate source. /9/ The Union maintains that Respondent's refusal to bargain in good faith is evidenced by its raising a defense of nonnegotiability two years after it declined to negotiate based on its regulation and a compelling need therefor. However, at the time the Respondent claimed a compelling need existed no determination in this regard had been made by the Authority. It was later declared that there was no compelling need for regulation 351-1-40. Thus, I reject the contention that the Respondent could not have raised a good faith doubt of its obligation to bargain in 1981. Further, I cannot conclude that the agency was barred from raising the issue of non-negotiability herein. See Delaware National Guard and Association of Civilian Technicians, Delaware Chapter, 10 FLRA No. 28 (1982).