23:0552(76)NG - AFGE, HUD Council 222 and HUD -- 1986 FLRAdec NG

 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.