[ v17 p589 ]
The decision of the Authority follows:
17 FLRA No. 87 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION VII, OFFICE OF HUMAN DEVELOPMENT SERVICES Agency Case No. 0-NG-610 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 an issue relating to the negotiability of the following Union proposal. Union Proposal Section 4. The "Competitive Area" will be established by the Agency as all of those positions under the personnel administration and authority of the Principal Regional Office of DHHS-Kansas City, MO. within the commuting area of Kansas City, Missouri. /1/ (Footnote added.) The identical proposal (except for the Agency official's title, which by that time, had been changed as indicated in n. 1) was the subject of Authority review in an unfair labor practice proceeding involving the same parties as are involved in the instant negotiability appeal. In the unfair labor practice case, Department of Health and Human Services, Washington, D.C., and Department of Health and Human Services, Region 7, Kansas City, Missouri and National Treasury Employees Union, 16 FLRA No. 44 (1984), the issue presented, insofar as is relevant herein, was whether negotiation on the proposal was barred by an Agency regulation for which a compelling need was asserted. The Authority found that the Agency had failed to establish that there existed a compelling need for the cited Agency regulation to bar negotiation over the disputed proposal and consequently ordered bargaining over the proposal. At about the same time as the filing of the instant petition for review, the Union also filed the unfair labor practice complaint, culminating in the decision cited above, and requested that processing of the negotiability appeal be suspended pending resolution of the unfair labor practice dispute. Upon issuance of the decision in the unfair labor practice case, the Agency was invited to submit its statement of position in accordance with section 2424.6 of the Authority's Rules and Regulations. In its statement of position, the Agency again asserts that the proposal is nonnegotiable, but on grounds different from those advanced in the unfair labor practice proceeding. /2/ The Agency now asserts, without contravention, /3/ that the competitive area proposed by the Union includes employees and personnel excluded from the Union's bargaining unit by operation of section 7112(b) of the Statute and also encompasses employees in a certified bargaining unit represented by another union. In light of the situation described, the disputed proposal is to the same effect as the proposal in American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA 754 (1984) which also sought to establish a competitive area including non-bargaining unit employees. The Authority concluded, with respect to the proposal in the cited case, that to the extent it "would directly determine conditions of employment of nonunit employees, it concerns matters beyond the representation rights of the Union and is not within the Agency's obligation to bargain." Thus, based on Office of Personnel Management, and the reasons and cases cited therein, the Union Proposal herein is not within the Agency's duty to bargain. 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., April 19, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ It appears from the record that the title of the Agency official named in the proposal has been changed to "Regional Director." /2/ In n. 5 of the cited unfair labor practice case, the Authority notes that the Agency herein did not allege in that case that the proposal applied to employees outside the bargaining and, hence, that question was not considered by the Authority. /3/ The Union filed a letter, dated December 7, 1984, stating its view that issues raised in the instant negotiability appeal were adjudicated in the above referenced unfair labor practice decision. Therefore, it saw "no need for the Authority to continue processing the instant negotiability petition." However, the letter did not contain an express withdrawal of the petition and processing continued. Thereafter, the Union did not file a reply brief addressing the arguments advanced by the Agency in its Statement of Position.