22:0703(79)NG - NAGE Local R7-23 and Air Force, HQ 375th Air Base Group (MAC), Scott AFB, IL -- 1986 FLRAdec NG
[ v22 p703 ]
22:0703(79)NG
The decision of the Authority follows:
22 FLRA No. 79
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R7-23
Union
and
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS 375th AIR BASE
GROUP (MAC), SCOTT AIR FORCE
BASE, ILLINOIS
Agency
Case No. 0-NG-1033
19 FLRA No. 63
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 Association of
Government Employees, Local R7-23 and Department of the Air Force,
Headquarters 375th Air Base Group (MAC), Scott Air Force Base, Illinois,
19 FLRA No. 63 (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:
All bargaining unit positions in all areas serviced by the CCPO
shall be in the same competitive area for reduction-in-force
purposes.
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 December 3, 1985, 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 Association of
Government Employees, Local R7-23 v. FLRA, No. 85-1522 (D.C. Cir. Dec.
3, 1985).
III. Analysis
The proposal at issue here seeks to define a competitive area within
the Agency for RIF purposes which would include all bargaining unit
positions serviced by the Consolidated Civilian Personnel Office (CCPO).
As noted in the Authority's previous decision in this case, the CCPO
services areas that are composed of both bargaining unit and
nonbargaining unit employees, as well as appropriated fund and
nonappropriated fund employees.
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.
The Union claims that its proposal is not intended to include
nonbargaining unit employees or employees represented by another
bargaining agent in the proposed competitive area but only to place all
bargaining unit employees it represents in a single competitive area.
Despite the Union's intent, applicable OPM regulations do not allow a
competitive area to be defined in terms of positions (such as bargaining
unit positions) but require all employees within the stated
organizational or geographic boundaries 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).