22:0703(79)NG - NAGE Local R7-23 and Air Force, HQ 375th Air Base Group (MAC), Scott AFB, IL -- 1986 FLRAdec NG
[ v22 p703 ]
The decision of the Authority follows:
22 FLRA No. 79 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23 Union and DEPARTMENT OF THE AIR FORCE HEADQUARTERS 375th AIR BASE GROUP (MAC), SCOTT AIR FORCE BASE, ILLINOIS Agency Case No. 0-NG-1033 19 FLRA No. 63 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 Association of Government Employees, Local R7-23 and Department of the Air Force, Headquarters 375th Air Base Group (MAC), Scott Air Force Base, Illinois, 19 FLRA No. 63 (1985), the Authority held that the following Union proposal defining a competitive area within the Agency for purposes of a RIF was outside the duty to bargain: All bargaining unit positions in all areas serviced by the CCPO shall be in the same competitive area for reduction-in-force purposes. The Union's appeal of that decision to the United States Court of Appeals for the District of Columbia Circuit was pending when the D.C. Circuit issued its decision in Local 32, American Federation of Government Employees v. FLRA, 774 F.2d 498 (D.C. Cir. 1985), remanding two related cases involving the same issue /*/ and directing the Authority to address and resolve what the Court described as an apparent conflict between the Authority's findings in those cases 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. On December 3, 1985, pursuant to the Authority's unopposed request, the D.C. Circuit remanded the instant case for further consideration in light of the Court's decision and the Authority's consideration of those cases on remand. National Association of Government Employees, Local R7-23 v. FLRA, No. 85-1522 (D.C. Cir. Dec. 3, 1985). III. Analysis The proposal at issue here seeks to define a competitive area within the Agency for RIF purposes which would include all bargaining unit positions serviced by the Consolidated Civilian Personnel Office (CCPO). As noted in the Authority's previous decision in this case, the CCPO services areas that are composed of both bargaining unit and nonbargaining unit employees, as well as appropriated fund and nonappropriated fund employees. In its Decision and Order on Remand in the Local 32 case referred to above, the Authority addressed the apparent conflict between the Local 32 and ACT decisions, reconciling and distinguishing 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. The Union claims that its proposal is not intended to include nonbargaining unit employees or employees represented by another bargaining agent in the proposed competitive area but only to place all bargaining unit employees it represents in a single competitive area. Despite the Union's intent, applicable OPM regulations do not allow a competitive area to be defined in terms of positions (such as bargaining unit positions) but require all employees within the stated organizational or geographic boundaries to be included. 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 by operation 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 two cases remanded by the Court were American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA 754 (1984) (Local 32) and 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).