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The decision of the Authority follows:
33 FLRA No. 41
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
OFFICE OF PERSONNEL MANAGEMENT
(14 FLRA 754, 22 FLRA 478)
DECISION AND ORDER ON NEGOTIABILITY ISSUES ON REMAND
October 25, 1988
Before Chairman Calhoun and Member McKee.
I. Statement of the Case
This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. Local 32, AFGE v. FLRA, Nos. 86-1447, 86-1642 (Aug. 16, 1988) (Local 32 II). The court granted the petitions for review filed by the unions in four consolidated cases and remanded the cases for further proceedings consistent with its opinion.
The question presented is whether the following proposal is negotiable under the Federal Service Labor-Management Relations Statute (the Statute):
The Competitive Area shall be the Washington Metropolitan Area.
For the reasons discussed below, we conclude that the proposal concerns the conditions of employment of bargaining unit employees and is within the duty to bargain under the Statute.
II. History of the Case
A. Original Decision of the Authority
The Authority's original decision and order in this case held that the proposal was outside the duty to bargain because it directly determined conditions of employment of nonbargaining unit employees. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA 754 (1984).
B. The Court's Decision on Review of Original Authority Decision
On review, the U.S. Court of Appeals for the D.C. Circuit found an apparent conflict between the Authority's original decision in this case and the Authority's decision in Association of Civilian Technicians, Pennsylvania State Council and Pennsylvania Army and Air National Guard, 14 FLRA 38 (1984) (ACT). Local 32, AFGE v. FLRA, 774 F.2d 498 (D.C. Cir. 1985). The court also found an apparent conflict with the "familiar principle of private labor law, that a proposal concerning 'terms and conditions of employment' is within the employer's duty to bargain, despite its potential effects on third parties." 774 F.2d at 503 (footnote and citations omitted). The court remanded the case to the Authority to address and resolve these apparent conflicts.
C. The Authority's Decision on Remand
The Authority decided on remand that the proposal was outside the duty to bargain because it directly determined conditions of employment of employees outside the bargaining unit. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA 478 (1986).
The Authority stated that it applied a balancing test in ruling on proposals concerning conditions of employment of bargaining unit employees which also affect employees outside the bargaining unit. The Authority stated that this test attempted to strike an appropriate balance between the right of a union to negotiate over the conditions of employment of bargaining unit employees and the right of an agency to determine unilaterally the conditions of employment of nonbargaining unit employees. In balancing these conflicting rights, the Authority distinguished between (1) proposals which directly determined the conditions of employment of nonunit employees, and (2) proposals which affected conditions of employment of nonunit employees only indirectly.
D. The Court's Decision on Review
On review, the court found that the Authority had not justified the conclusion that under the Statute there is no duty to bargain over proposals which directly affect the conditions of employment of employees outside the bargaining unit. Local 32 II, slip op. at 10-11. The court further found that the Authority had not justified the departure from the approach of National Labor Relations Board (the NLRB) in the private sector. Id. at 12.
The court again remanded the case to the Authority and directed the Authority to:
reconsider the standard that obtains in the private sector. Under that standard, the expert adjudicator inquires only whether vital interests of unit employees would be affected by a given proposal, and permits bargaining over such proposals without regard to the potential effect on nonunit employees.
Id. at 14.
We have reviewed our approach in light of the court's decision. On reexamination, we adopt the private sector test used by the NLRB in determining questions involving the duty to bargain over proposals concerning conditions of employment of unit employees which also affect employees or positions outside the unit. In determining whether there is a duty to bargain over such proposals, the NLRB focuses on whether the matter "vitally affects" terms and conditions of employment of bargaining unit employees. The NLRB limits its examination to the interests of unit employees; the NLRB does not consider the effect of the proposal on nonunit employees. See, for example, Allied Chemical & Alkali Workers Local 1 v. Pittsburgh Plate Glass, 404 U.S. 157 (1971). Consistent with the private sector standard, we have formulated the following approach to resolving disputes over the negotiability of such proposals under the Statute.
Under the statutory scheme established by sections 7103(a)(12), 7106, 7114, and 7117 of the Statute, a proposal which concerns a condition of employment of bargaining unit employees is negotiable if it is consistent with Federal law, Government-wide regulations, and agency regulations for which there is a compelling need. The term "conditions of employment" is defined in section 7103(a)(14) as:
[P]ersonnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not conclude policies, practices, and matters--
(A) relating to political activities prohibited under subchapter III of chapter 73 of this title;
(B) relating to the classification of any position; or
(C) to the extent such matters are specifically provided for by Federal statute[.]
In cases which do not involve an exclusion from the definition of "conditions of employment," we will examine only one factor in deciding whether a proposal concerns a condition of employment of bargaining unit employees: Whether the proposal vitally affects the working conditions of employees in the bargaining unit. Local 32 II, slip op. at 14.
We will find that a proposal is within the duty to bargain under the Statute if it (1) vitally affects the working conditions of unit employees, and (2) is consistent with applicable law and regulations. We no longer will examine the effect of the proposal on nonunit employees or positions. Prior Authority decisions which are inconsistent with this approach will no longer be followed.
Applying this approach to the Union's proposal, we find that the proposal (1) vitally affects the working conditions of employees in the bargaining unit, and (2) is not inconsistent with applicable law or regulations. Consequently, we find that the proposal is within the duty to bargain.
First, the proposal defines a competitive area for a RIF. As a result, it determines the employees with whom bargaining unit employees must compete for job retention during a RIF. Since it is concerned with whether bargaining unit employees will retain their jobs, the proposal clearly affects vital interests of those employees.
Second, the proposal is not claimed to be inconsistent with applicable law or regulations and no inconsistency is apparent to us. Accordingly, we find that the proposal is within the duty to bargain.
The Agency must negotiate on request (or as otherwise agreed to by the parties) concerning the Union's proposal.(*)
(If blank, the decision does not have footnotes.)
*/ In finding the proposal to be negotiable, we make no judgment as to its merits.