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 17 FLRA No. 87
 
 NATIONAL TREASURY EMPLOYEES UNION 
 Union 
 
 and 
 
 DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, REGION VII, 
 OFFICE OF HUMAN DEVELOPMENT SERVICES
 Agency
 
                                            Case No. 0-NG-610
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and presents an issue
 relating to the negotiability of the following Union proposal.
 
                              Union Proposal
 
          Section 4.  The "Competitive Area" will be established by the
       Agency as all of those positions under the personnel
       administration and authority of the Principal Regional Office of
       DHHS-Kansas City, MO. within the commuting area of Kansas City,
       Missouri.  /1/ (Footnote added.)
 
    The identical proposal (except for the Agency official's title, which
 by that time, had been changed as indicated in n. 1) was the subject of
 Authority review in an unfair labor practice proceeding involving the
 same parties as are involved in the instant negotiability appeal.  In
 the unfair labor practice case, Department of Health and Human Services,
 Washington, D.C., and Department of Health and Human Services, Region 7,
 Kansas City, Missouri and National Treasury Employees Union, 16 FLRA No.
 44 (1984), the issue presented, insofar as is relevant herein, was
 whether negotiation on the proposal was barred by an Agency regulation
 for which a compelling need was asserted.  The Authority found that the
 Agency had failed to establish that there existed a compelling need for
 the cited Agency regulation to bar negotiation over the disputed
 proposal and consequently ordered bargaining over the proposal.
 
    At about the same time as the filing of the instant petition for
 review, the Union also filed the unfair labor practice complaint,
 culminating in the decision cited above, and requested that processing
 of the negotiability appeal be suspended pending resolution of the
 unfair labor practice dispute.  Upon issuance of the decision in the
 unfair labor practice case, the Agency was invited to submit its
 statement of position in accordance with section 2424.6 of the
 Authority's Rules and Regulations.
 
    In its statement of position, the Agency again asserts that the
 proposal is nonnegotiable, but on grounds different from those advanced
 in the unfair labor practice proceeding.  /2/ The Agency now asserts,
 without contravention, /3/ that the competitive area proposed by the
 Union includes employees and personnel excluded from the Union's
 bargaining unit by operation of section 7112(b) of the Statute and also
 encompasses employees in a certified bargaining unit represented by
 another union.  In light of the situation described, the disputed
 proposal is to the same effect as the proposal in American Federation of
 Government Employees, Local 32, AFL-CIO and Office of Personnel
 Management, 14 FLRA 754 (1984) which also sought to establish a
 competitive area including non-bargaining unit employees.  The Authority
 concluded, with respect to the proposal in the cited case, that to the
 extent it "would directly determine conditions of employment of nonunit
 employees, it concerns matters beyond the representation rights of the
 Union and is not within the Agency's obligation to bargain." Thus, based
 on Office of Personnel Management, and the reasons and cases cited
 therein, the Union Proposal herein is not within the Agency's duty to
 bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review be, and it
 hereby is, dismissed.  Issued, Washington, D.C., April 19, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ It appears from the record that the title of the Agency official
 named in the proposal has been changed to "Regional Director."
 
 
    /2/ In n. 5 of the cited unfair labor practice case, the Authority
 notes that the Agency herein did not allege in that case that the
 proposal applied to employees outside the bargaining and, hence, that
 question was not considered by the Authority.
 
 
    /3/ The Union filed a letter, dated December 7, 1984, stating its
 view that issues raised in the instant negotiability appeal were
 adjudicated in the above referenced unfair labor practice decision.
 Therefore, it saw "no need for the Authority to continue processing the
 instant negotiability petition." However, the letter did not contain an
 express withdrawal of the petition and processing continued.
 Thereafter, the Union did not file a reply brief addressing the
 arguments advanced by the Agency in its Statement of Position. 
 
 
 

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