18:0783(95)AR - HUD and AFGE Local 476 -- 1985 FLRAdec AR

 18 FLRA No. 95
 
 DEPARTMENT OF HOUSING 
 AND URBAN DEVELOPMENT 
 Agency 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 476, AFL-CIO 
 Union
 
                                            Case No. 0-AR-756
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the interest
 arbitration award of Arbitrator Louis Aronin filed by the Agency under
 section 7122(a) of the Federal Service Labor-Management Relations
 Statute and part 2425 of the Authority's Rules and Regulations.  /1/
 
    The dispute before the Arbitrator concerned, among other things, the
 negotiation impasse over the competitive area to be applied in a
 reduction-in-force (RIF) in the Agency's Office of Housing.  The
 parties' 1979 collective bargaining agreement had contained the
 following provision:  "Competitive areas shall be considered to be local
 commuting areas except that they shall not cross Regional boundaries nor
 shall they mix Headquarters employees with Regional employees." After
 the expiration of the agreement, the Agency maintained that by affecting
 positions and employees outside the bargaining unit, the competitive
 area provision related to a permissive subject of bargaining, and the
 Agency elected not to be bound by the provision.  Instead, the Agency
 established nine separate competitive areas.  /2/ Thereafter, the Agency
 announced a RIF in the Office of Housing to be conducted applying the
 modified competitive areas, and bargaining over the RIF reached an
 impasse which by direction of the Federal Service Impasses Panel (Panel)
 was referred to interest arbitration for resolution.  Before the
 Arbitrator the Agency essentially maintained that the matter of
 competitive areas for a RIF necessarily involves an issue of whether
 there is an obligation to bargain under the Statute and argued that
 under Interpretation and Guidance, 11 FLRA 626 (1983), such an issue
 cannot be resolved by an interest arbitrator.  However, the Arbitrator
 framed the issue for resolution as whether the Agency had the right to
 unilaterally change the competitive area provision of the parties'
 expired agreement, and he determined that he was not precluded by the
 Interpretation and Guidance from resolving that issue.  With respect to
 this issue, the Arbitrator determined that the provision for a
 Headquarters competitive area did not involve employees outside the
 bargaining unit and that no change from that provision was warranted.
 Thus, he ruled that there was no basis to change the competitive area
 provision of the expired agreement absent negotiations and accord on
 such a change.  Because there had been no such accord, the Arbitrator as
 his award directed the parties to incorporate the competitive area
 provision of the expired collective bargaining agreement.
 
    In one of its exceptions, the Agency essentially contends that the
 award is contrary to the Statute.  Specifically, the Agency maintains
 that the Arbitrator resolved an issue relating to the duty to bargain
 under the Statute which on the basis of Interpretation and Guidance, 11
 FLRA 626 (1983), he was not authorized to resolve.  The Authority
 agrees.
 
    The Authority in the Interpretation and Guidance held that section
 7119 of the Statute does not authorize the Panel to resolve issues as to
 whether there is an obligation to bargain under the Statute.
 Correspondingly, an interest arbitrator acting pursuant to a direction
 of the Panel is likewise without authority to resolve such issues.
 Interpretation and Guidance, 16 FLRA No. 75, slip op. at 2 n.2 (1984).
 As to unilateral changes on the expiration of a collective bargaining
 agreement, the Authority in Federal Aviation Administration, Northwest
 Mountain Region, Seattle, Washington, 14 FLRA 644, 648 (1984), expressly
 held that following the expiration of a collective bargaining agreement,
 either party to that agreement may elect not to be bound by a practice
 embodied in any contract provision which relates to a matter that is
 outside the required scope of bargaining under the Statute, i.e., is a
 permissive subject of bargaining.  Thus, in framing the issue presented
 by the parties' negotiation impasse on competitive areas as whether the
 Agency had the right to unilaterally change the competitive area
 provision of the parties' expired agreement and in deciding that the
 Agency did not have the right because the provision did not affect
 positions and employees outside the bargaining unit, the Arbitrator
 necessarily decided whether the provision was a permissive subject of
 bargaining and consequently resolved an issue relating to the obligation
 to bargain under the Statute.  /3/ However, the Arbitrator was not
 authorized under the Statute to resolve such an issue which must have
 been resolved only by the Authority directly through an appeal to the
 Authority under section 7117(c) or by the filing of an unfair labor
 practice charge under section 7118.  See Interpretation and Guidance, 11
 FLRA at 628-29.  Accordingly, that portion of the Arbitrator's award
 resolving the parties' impasse on competitive areas is deficient as
 contrary to the Statute and is struck from the award.  /4/ Issued,
 Washington, D.C., June 28, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Contrary to the argument of the Union that section 7122(a) of the
 Statute and part 2425 of the Authority's Rules do not apply to interest
 arbitration awards, the Authority confirms its jurisdiction to resolve
 the exceptions.  Patent and Trademark Office and Patent Office
 Professional Association, 15 FLRA No. 184 (1984).  However, in agreement
 with the Union, the Authority finds unnecessary the Agency's proffered
 supplementary statement, and accordingly the Agency's motion for leave
 to file is denied.
 
 
    /2/ Subsequently, the parties negotiated a new collective bargaining
 agreement which does not contain a provision relating to competitive
 areas.  The Union's proposals on competitive areas was alleged not to be
 within the duty to bargain after which the Union filed a petition for
 review of a negotiability issue which is currently pending before the
 Authority as Case No. 0-NG-887.
 
 
    /3/ With respect to competitive area proposals, the Authority in
 American Federation of Government Employees, Local 32, AFL-CIO and
 Office of Personnel Management, 14 FLRA 754 (1984), petition for review
 filed sub nom. American Federation of Government Employees, Local 32,
 AFL-CIO v. FLRA, No. 84-1250 (D.C. Cir. June 15, 1984), addressed the
 negotiability of a proposal dealing with competitive areas for RIF
 purposes where the record established that the proposed competitive area
 affected nonbargaining-unit employees and noted that it is well
 established that the duty to bargain does not extend to matters
 concerning positions and employees outside the bargaining unit.  Accord
 National Federation of Federal Employees, Local 1705 and General
 Services Administration, 17 FLRA No. 123 (1985);  cf. Association of
 Civilian Technicians, Pennsylvania State Council and Pennsylvania Army
 and Air National Guard, 14 FLRA 38 (1984) (union proposal 1);  National
 Treasury Employees Union and Department of Health and Human Services,
 Region IV, 11 FLRA 254 (1983) (union proposal 1) (wherein the Authority
 ruled that the proposals dealing with competitive areas for RIF purposes
 were within the duty to bargain since the record did not establish that
 the proposed competitive areas affected non-bargaining unit employees).
 
 
    /4/ In view of this decision, it is not necessary to address the
 other exception to the award.  In addition, in determining that the
 Arbitrator was without authority to decide the negotiability issue in
 this matter, the Authority makes no determination on whether it is
 established that the competitive area provision and proposals affected
 positions and employees outside the bargaining unit.