[ v18 p783 ]
The decision of the Authority follows:
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.