33:0503(68)NG - - AFGE, HUD Council 222 and HUD - - 1988 FLRAdec NG - - v33 p503

[ v33 p503 ]
The decision of the Authority follows:

33 FLRA No. 68









(22 FLRA 552)


October 28, 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 proposals are negotiable under the Federal Service Labor-Management Relations Statute (the Statute):

Competitive Areas Proposal 1

The competitive areas for reductions 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.

For the reasons discussed below, we conclude that the proposals concern the conditions of employment of bargaining unit employees and are within the duty to bargain under the Statute.

II. History of the Case

A. Previous Decision of the Authority

In our previous decision and order in this case, we held that the proposals were outside the duty to bargain because they directly determined conditions of employment of nonbargaining unit employees. American Federation of Government Employees, AFL-CIO, HUD Council 222 and Department of Housing and Urban Development, 23 FLRA 552 (1986). In addition, with respect to Proposal 1, we noted as follows:

[T]o the extent that the term "management needs" in Proposal 1 would not include the Agency's need to comply with the requirements of applicable [Government-wide] regulations in the establishment of competitive areas, it would be nonnegotiable for that reason as well.

23 FLRA at 554 n.3.

B. The Court's Decision on Review

On review, the court found that we had not justified our conclusion that under the Statute there is no duty to bargain over proposals which directly determine the conditions of employment of employees outside the bargaining unit. Local 32 II, slip op. at 10-11. The court further found that we had not justified departing from the approach of the National Labor Relations Board (the NLRB) in the private sector. Under that approach, a proposal which "vitally affects" working conditions of unit employees is within the duty to bargain even if it affects nonunit employees. Id. at 11-12.

The court remanded the case to the Authority and directed that we:

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.

III. Discussion

In American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA No. 41 (1988) (OPM), which was consolidated with this case before the D.C. Circuit, we adopted the private sector test used by the NLRB. We held that 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. OPM, slip op. at 4.

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.

IV. Conclusions

Applying this approach to the proposals in the instant case, we find that the proposals (1) vitally affect the working conditions of employees in the bargaining unit, and (2) are consistent with applicable law or regulations. Consequently, we find that the proposals are within the duty to bargain.

A. Proposal 1

Proposal 1 concerns how competitive areas will be determined for a reduction-in-force (RIF). As a result, it pertains to the determination of which employees will compete with bargaining unit employees 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.

Furthermore, we find that Proposal 1 is consistent with Government-wide regulations for establishing competitive areas. Under 5 C.F.R. § 351.402(b), a competitive area must be defined "solely in terms of an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so define