[ v22 p478 ]
The decision of the Authority follows:
22 FLRA No. 49 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 32, AFL-CIO Union and OFFICE OF PERSONNEL MANAGEMENT Agency Case No. 0-NG-914 14 FLRA 754 DECISION AND ORDER ON REMAND I. Statement of the Case This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. The question involved is whether "competitive areas" within an agency for reduction-in-force (RIF) purposes are within the duty to bargain under the Federal Service Labor-Management Relations Statute (the Statute). II. Background In a previous decision in this case, American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA 754 (1984) (Local 32), the Authority held a Union proposal defining the competitive area to be used for RIF to be outside the duty to bargain. On review, the D.C. Circuit found an apparent inconsistency between this Authority finding and the Authority's finding in Association of Civilian Technicians, Pennsylvania State Council and Pennsylvania Army and Air National Guard, 14 FLRA 38 (1984) (ACT) that a proposed competitive area was within the duty to bargain. It remanded this case and another case with the same holding, National Federation of Federal Employees, Local 29 and Department of the Army, U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 16 FLRA 75 (1984), and directed the Authority to address and resolve the apparent conflict between its Local 32 and ACT decisions. Local 32, American Federation of Government Employees v. FLRA, 774 F.2d 498 (D.C. Cir. 1985). III. Consideration of D.C. Circuit in Remanding Case The D.C. Circuit highlighted four considerations in remanding this case to the Authority to resolve the apparent conflict between these two decisions: A. The Authority had previously adhered to the principle that a proposal may be a mandatory subject of bargaining despite its effect on nonbargaining unit employees; B. the Authority's decisions in these cases appear to be at odds with a familiar principle of private sector labor law that a proposal concerning terms and conditions of employment is within the duty to bargain despite its effects on third parties; C. the agency involved in this case had previously bargained a similar provision defining competitive area; and D. the Authority's attempt to distinguish the two cases was incomplete because it did not and could not state that the ACT proposal had no effect on nonbargaining unit employees. IV. Analysis A. The Authority's Analysis of Proposals Which Affect Employees Outside the Bargaining Unit In the Federal as in the private sector, the statutory obligation to negotiate extends only to conditions of employment within the bargaining unit. Matters involving individuals outside the employment relationship normally are excluded. /1/ In the Federal sector, laws and regulations sometimes require uniform treatment of employees based upon considerations such as fairness, equity and effective, efficient administration of Government. As a result, some conditions of employment of bargaining unit employees may be inseparable from those of nonunit employees. The Authority has, in a number of instances, been presented with bargaining proposals regarding the conditions of employment of unit employees which also affect employees outside the unit. Proposals relating to RIF frequently have this result because controlling Government-wide regulations mandate uniform procedures. In such circumstances, the Authority has attempted to strike an appropriate balance between the right of the union to negotiate over the conditions of employment of bargaining unit employees and the right of the agency to set the conditions of employment of nonbargaining unit employees; indeed, the requirement that they be set consistent with Govenment-wide rules and regulations. This approach is consistent with the analysis and discussion by the Supreme Court in its Allied Chemical decision where it noted that, "other considerations (besides the impact on the interests of bargaining unit employees) such as the effect on the employer's freedom to conduct its business, may be equally important." 404 U.S. 157, 180 n. 19 (1971). On the one hand, it is the Authority's view that the scope of bargaining would be unduly restricted by a rule limiting the bargaining obligation to negotiable proposals which have absolutely no effect on employees outside the bargaining unit. Therefore, it has not adopted such a rule. On the other hand, a rule requiring negotiations on proposals which actually establish conditions of employment of nonunit employees goes beyond the requirements of the Statute and might unduly impede the Agency in functioning effectively and efficiently. To balance these conflicting rights, the Authority has distinguished (1) permissively negotiable proposals which would affirmatively establish or define a condition of employment for nonunit employees or positions /2/ from (2) mandatorily negotiable proposals which would affect conditions of employment of nonunit employees or positions only to a lesser degree. /3/ B. Departure from Private Sector Approach The Authority is of course aware that the approach it has taken in administering the Statute differs somewhat from that adopted by the National Labor Relations Board. The Board focuses on whether a matter "vitally affects" terms and conditions of employment of unit employees in resolving questions concerning the scope of the duty to bargain in the private sector. See note 1, supra. Congress, however, did not intend to require that Federal sector labor relations be a mirror image of the private sector scheme. There is no indication in either the Statute itself or its legislative history that Congress intended the substantive case precedent of the National Labor Relations Board to apply in the Federal sector. There is indication, rather, that Congress perceived a need to accommodate circumstances present in Government which are different from those in the private sector. In section 7101, Congress stated its purpose in passing the Statute as "to establish procedures which are designed to meet the special needs of Government." Furthermore, that section mandates that the Statute be "interpreted in a manner consistent with the requirements of an effective and efficient Government." Additionally, the Statute's antecedents are in the Executive Order program rather than the National Labor Relations Act. This was emphasized by Congress in passing section 7135(b) of the Statute which expressly provides for the continuation of policies, regulations, procedures and decisions which emanated under the Executive Order program, unless they are superseded by the Statute or by regulations or decisions issued under the Statute. The Authority's approach to dealing with proposals which effect employees outside the bargaining unit is congruent with previous Federal sector practice as contrasted with private sector practice. /4/ Under the Statute, in determining the negotiability of proposals which affect the conditions of employment of unit as well as non-unit employees, the Authority will balance the right of the union to negotiate over the conditions of employment of bargaining unit employees and the right of the agency to set the conditions of employment of nonbargaining unit employees. In weighing the parties' respective rights, we will determine whether the nature and degree of the impact of the proposal is so intrinsically related to the working conditions of nonunit employees so as to invade the purview of other unit representatives or require the agency to act in a way that will have a significant effect on the rights of employees not represented by the union offering the disputed proposal. In such a case, management is not required to bargain. However, where the proposal has only a limited or indirect effect on the interests of employees outside the bargaining unit it will be subject to appropriate negotiations. This approach is consistent with earlier Federal sector practice as well as with our considerations in previous Authority precedent and differs from private sector considerations inasmuch as the Authority will look to the effect of the proposal on nonunit employees and will not limit our examination to the interest of bargaining unit members. C. Previous Bargaining by the Agency on a Similar Proposal The Authority has never held that negotiating over competitive areas is prohibited. However, it has held that an agency is not obligated to bargain over proposals which directly determine conditions of employment of nonbargaining unit employees even though it can bargain over these matters if it chooses to do so. Therefore, under Authority precedent any agency could properly bargain over the definition of a competitive area which would include nonunit employees, as the Agency here apparently did in the past. Nonetheless, in the Federal as in the private sector, previous bargaining over a permissive matter would not prevent an agency negotiating a new agreement from changing its position and refusing to bargain over an elective subject. Where an agency, as here, raises the asserted issue as a bar to negotiations, the Authority will not order the parties to bargain because of their prior bargaining history. D. The Authority's Holdings Concerning Competitive Areas in the Local 32 and ACT Cases For the employees involved in the Local 32 case, as for most Federal employees, a RIF must be carried out in accordance with regulations prescribed by the Office of Personnel Management (OPM) pursuant to 5 U.S.C. Section 3502. These regulations establish a comprehensive system for determining which employees will be retained in the positions which remain in an agency undergoing a RIF. Within that system "competitive area" constitutes the basic geographic and organizational boundaries within which employees will compete for retention. The OPM regulations do not allow competitive area to be defined in terms of types of positions, as, for example, bargaining unit positions. Consequently, as a practical matter, most competitive areas which are established under OPM regulations will include both bargaining unit and nonunit positions and employees. /5/ In Local 32, the proposal would have defined the competitive area for RIF as the Washington Metropolitan Area. The Agency asserted and the Union did not dispute that the proposed competitive area would include nonbargaining unit employees. The Authority considered whether the nature and degree of the impact of the proposal was so intrinsically related to the working conditions of nonunit employees so as to directly determine and prescribe their conditions of employment. Our result was dictated by the fact that the disputed proposal, by defining the competitive area as the Washington Metropolitan Area, would undoubtedly include unit and nonunit employees. Acceptance of the Union's designation of competitive area would allow it to determine with whom nonunit employees would compete for retention rights in the event of a RIF and further allow it to prescribe the area in which the competition would take place. Since the Authority determined that under the Statute an agency has no duty to bargain with a union to establish the conditions of employment of nonbargaining unit employees, it held the proposed competitive area to be outside the Agency's obligation to bargain. In its decision in ACT, in contrast, the Authority found the proposed competitive area to be within the Agency's duty to bargain. This finding was based upon circumstances viewed as being materially distinguishable from those present in the Local 32 case. The proposal in ACT essentially defined a competitive area for RIF limited to the bargaining unit. As previously mentioned, such a competitive area would not be consistent with the OPM regulations applicable in the Local 32 case. However, in the ACT case, as distinguished from Local 32, the bargaining unit consists of National Guard Technicians who are not subject to those OPM regulations. See 5 CFR 351.202(c)(5) (1986). The proposal in ACT for that reason would have directly determined or defined the competitive area only for bargaining unit positions and employees. It also undeniably would have affected or influenced in a limited, indirect way the potential scope of any competitive area for nonbargaining unit employees by excluding them from the area negotiated for the bargaining unit. However, the proposal would not otherwise limit or prescribe a competitive area for those nonunit employees. Hence, it did not define or directly determine a condition of their employment. In summary, the proposals in both the ACT and Local 32 cases would have directly determined the conditions of employment of bargaining unit employees. The critical difference between the proposals lies in the nature and degree of the impact they would have on nonunit employees. The competitive area proposed in ACT only affected conditions of employment of nonunit employees indirectly: it excluded them from the negotiated competitive area. The proposed competitive area in Local 32, in contrast, consistent with the requirements of applicable OPM regulations, encompassed nonbargaining unit employees in the negotiated competitive area. It directly determined, that is, prescribed, their competitive area. Consistent with this analysis, in all cases since Local 32 dealing with competitive areas where an agency has objected to bargaining based upon the fact that a proposed competitive area would directly determine nonunit employees' conditions of employment, the Authority has held the proposals to be outside the mandatory obligation to bargain. V. Conclusion Because the proposal in Local 32 would directly determine conditions of employment for employees outside the bargaining unit, it is nonnegotiable. Issued, Washington, D.C., July 9, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) See sections 7103(a)(12) and 7114(a)(1) of the Statute. For discussion of the private sector approach, see Allied Chemical and Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971). (2) See, for example, 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 687 (1982) and 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). (3) See, for example, National Treasury Employees Union and Internal Revenue Service, 7 FLRA 275 (1981) (Proposal 2). (4) See, for example, Texas ANG Council of Locals, AFGE and State of Texas National Guard, 4 FLRC 154 (1976), in which a proposal concerning the filling of threshold supervisory positions was found to be outside the duty to bargain and Lodge 2424, IAM-AW and Kirk Army Hospital and Aberdeen Research and Development Center, Aberdeen, Md., 1 FLRC 526, 532-33 (1973), where a proposal which involved a procedure within which unit employees competed with outside applicants for jobs was found to be negotiable. With respect to cases concerning competitive areas, no negotiability decision addressed whether competitive areas were within the duty to bargain. Two ULP decisions addressed issues relating to competitive areas, Department of the Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona and Local 1487, NFFE, Blythe, California, 4 FLRC 486 (1976) and Department of the Army, U.S. Army Electronics Command, Fort Monmouth, New Jersey and Local 476, NFFE, 5 FLRC 579 (1977). Neither decision specifically addressed whether competitive areas were within the duty to bargain where an agency raised issues as to the effect on nonunit employees. The second case stated in a footnote that it was undisputed that establishment of competitive areas was negotiable. However, it was found that an agency had no obligation to bargain with a NFFE local over changes in competitive areas where the group of employees involved in the change were represented by a different labor organization, although NFFE represented certain employees assigned to and remaining in the affected competitive area. In that case, the bargaining obligations were determined by balancing among the respective interests of the agency, the different groups of employees, and the labor organizations which represent them; defining the obligation to bargain in this manner circumvented practical difficulties which would arise if the agency were required to negotiate separately and independently with each labor organization over the same change. (5) Depending on organizational and geographic circumstances, a given competitive area could include three general categories of "nonunit" employees: (1) those ineligible for inclusion in bargaining units, such as supervisors, management officials, and employees engaged in Federal personnel work in other than a purely clerical capacity; (2) those employees who are eligible but unrepresented and (3) those employees of the same agency who are in other bargaining units represented by the same or different unions.