22:0707(80)NG - NTEU and Nuclear Regulatory Commission -- 1986 FLRAdec NG

 22 FLRA No. 80
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union
 
 and
 
 NUCLEAR REGULATORY COMMISSION
 Agency
 
                                            Case No. 0-NG-1095
                                            20 FLRA No. 21
 
                       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 Treasury Employees
 Union and Nuclear Regulatory Commission, 20 FLRA No. 21 (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:
 
          Our counterproposal in this area is to use commuting area as
       the area of competition and to allow normal personnel
       considerations to be used in determining the similarity of
       positions.
 
    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 January 22, 1986, 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 Treasury Employees
 Union v. FLRA, No. 85-1749 (D.C. Cir. Jan. 22, 1986).
 
                              III.  Analysis
 
    The Union's proposal in this case would define a competitive area
 within the Agency for RIF purposes as the "commuting area."
 
    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.
 
    As noted in our previous decision in this case, while the Union
 asserts that its proposal applies only to bargaining unit employees,
 applicable OPM regulations require all employees within the stated
 organizational or geographic boundaries of the competitive area 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).