22:0692(75)NG - NFFE Local 29 and Army, Corps of Engineers, Kansas City Dist. kansas City, MO -- 1986 FLRAdec NG

 22 FLRA No. 75
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 29
 Union
 
 and
 
 DEPARTMENT OF THE ARMY 
 U.S. ARMY CORPS OF ENGINEERS 
 KANSAS CITY DISTRICT 
 KANSAS CITY, MISSOURI
 Agency
 
                                            Case No. 0-NG-689 
                                                   16 FLRA 75
 
                       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, 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), the Authority held, as relevant here, that the following Union
 proposal defining the competitive area to be used for a RIF was outside
 the duty to bargain:
 
                             Union Proposal 2
 
          Section 3.
 
          The following definition(s) shall apply:
 
          Competitive Area:  The geographic area that usually constitutes
       one area for employment purposes.  It includes any population
       center (or two or more neighboring areas) and the surrounding
       localities in which people live and reasonably can be expected to
       travel in their usual employment.
 
    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, American Federation of
 Government Employees, Local 32, AFL-CIO and Office of Personnel
 Management, 14 FLRA 754 (1984) (Local 32), 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.  Analysis
 
    The proposal at issue in this case would narrow the established
 competitive area encompassing four states by restricting it to the local
 commuting area.  Even as more narrowly defined, the proposed competitive
 area would still include both bargaining unit employees and positions
 and nonbargaining unit employees and positions.
 
    In its Decision and Order on Remand in the Local 32 case referred to
 above, the Authority responded to various questions raised by the court.
  With respect to the apparent conflict between the Local 32 and ACT
 decisions, the Authority reconciled and distinguished the two cases as
 follows:
 
          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.
 
    American Federation of Government Employees, Local 32, AFL-CIO and
 Office of Personnel Management, 22 FLRA No. 49, slip op. at 8 (1986).
 Accordingly, the Authority concluded that the proposal in Local 32 was
 nonnegotiable because it would directly determine conditions of
 employment for employees outside the bargaining unit.  As the proposal
 at issue in this case, similar to the one in Local 32, would establish a
 competitive area which necessarily includes nonunit employees within its
 boundaries, consistent with the requirements of applicable OPM
 regulations, it also is outside the mandatory obligation to bargain.
 
                              IV.  Conclusion
 
    Accordingly, for the reasons stated by the Authority in its Decision
 and Order on Remand concerning the proposal in the Local 32 case, the
 proposal at issue here also is nonnegotiable.
 
    Issued, Washington, D.C., July 24, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) The Union withdrew its appeal of the Authority's other holding in
 the case concerning reassignments (Union Proposal 1), and therefore the
 court did not have that matter before it.