[ v23 p552 ]
The decision of the Authority follows:
23 FLRA No. 76 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, HUD COUNCIL 222 Union and DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Agency Case No. 0-NG-887 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of two proposals concerning the establishment of competitive areas for reduction-in-force (RIF) purposes. For the reasons set forth below, we conclude that both proposals are nonnegotiable. II. Threshold Issue The Agency contends that the Union's appeal is not properly before the Authority for review under section 2424.3 of the Authority's Rules and Regulations because the issues involved in this appeal "apparently had been settled at the bargaining table and a full agreement had been reached." The Agency asserts that the parties had concluded binding arbitration to resolve certain impassed bargaining issues without the Union's having requested a written allegation of nonnegotiability from the Agency concerning the two disputed proposals, and that the Union's negotiability appeal filed six weeks after bargaining had concluded should not be permitted. We conclude that the Agency's contention must be rejected. The record discloses that the Union requested a written determination of nonnegotiability from the Agency concerning the two disputed proposals on July 15, 1983, which was after the parties had completed an impasse arbitration proceeding but before they executed their collective bargaining agreement on September 7, 1983. Having received no resonse to its request for a written determination, the Union, on August 8, 1983, filed its petition for review pursuant to section 2424.3 of the Authority's Rules and Regulations. On August 12, 1983, the Agency served its written determination of nonnegotiability on the Union. Since the Agency provides no support for its contention that the parties had reached agreement on the two proposals at issue in this case and since the Union's petition for review was otherwise timely filed with the Authority, we conclude that the appeal is properly before us for review. III. The Union's Proposals Competitive Areas Proposal 1 The competitive areas for reduction in force shall be determined by negotiation on a case-by-case basis according to management needs. Competitive Areas Proposal 2 Headquarters. The competitive area for Headquarters is the commuting area, headquarters wide. IV. Positions of the Parties The Agency contends that the two proposals in dispute are indistinguishable and should be decided as if they were one proposal. In each instance, the Agency asserts that there is no duty to bargain concerning a proposed competitive area for RIF purposes which includes non-unit employees and that a competitive area consisting only of bargaining unit employees would be inconsistent with the requirements of 5 CFR Section 351.402(b), a Government-wide regulation. The Union contends that Proposal 1 would not require the Agency to establish any particular competitive area or require a RIF to be confined to any organizational entity, and that OPM "standards" are within an agency's discretion in certain respects. The Union asserts that the application of Proposal 2 in a RIF would have an effect mainly on unit employees and that the proposal's indirect effect on non-unit employees does not render it outside the duty to bargain. V. Analysis and Conclusions We conclude that both proposals concerning the definition of competitive areas are nonnegotiable. In our Decision and Order on Remand in American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA No. 49, slip opinion at 6-7 (1986), appeal filed, No. 86-1447 (D.C. Cir. Aug. 11, 1986), /1/ we determined, in circumstances where OPM regulations setting forth the criteria for defining competitive areas were applicable, that as a practical matter most competitive areas sought to be bargained would of necessity contain non-unit employees. /2/ In that case we concluded that as proposals seeking to define competitive areas would thereby directly determine the working conditions of non-unit employees, such proposals would be outside the duty to bargain. In this case, the Agency has alleged -- without contradiction by the Union -- that both proposals in dispute would, because of the application of the OPM regulations, directly affect the working conditions of non-unit employees. Accordingly, consistent with our Decision and Order on Remand in Office of Personnel Management, we hold that both proposals are outside the duty to bargain. /3/ VI. Order Pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., September 30, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) In Local 32, American Federation of Government Employees v. FLRA, 774 F.2d 498 (D.C. Cir. 1985), the D.C. Circuit had remanded the Authority's prior decision in that case, 14 FLRA 754 (1984), for further consideration. (2) See 5 CFR 351.402(b), 51 Fed. Reg. 318 at 321 (1986). (3) Additionally, to the extent that the term "management needs" in Proposal 1 would not include the Agency's need to comply with the requirements of applicable OPM regulations in the establishment of competitive areas, it would be nonnegotiable for that reason as well.