20:0172(21)NG - NTEU and Nuclear Regulatory Commission -- 1985 FLRAdec NG

20 FLRA No. 21

NATIONAL TREASURY EMPLOYEES UNION
Union 

and 

NUCLEAR REGULATORY COMMISSION 
Agency

                                      Case No. 0-NG-1095

                DECISION AND ORDER ON NEGOTIABILITY ISSUE

   The petition for review in this case comes before the Federal Labor
Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of
the Federal Service Labor-Management Relations Statute (the Statute),
and presents an issue concerning the negotiability of the following
Union proposal:

         Our counterproposal in this area is to use commuting area as
      the area of competition and to allow normal personnel
      considerations to be used in determining the similarity of
      positions.

   Upon careful consideration of the entire record, including the
parties' contentions, /1/ the Authority makes the following
determination.  The instant proposal seeks to define a competitive area
within the Agency for purposes of reduction-in-force (RIF).  Based on
the record it appears that the Union submitted the instant proposal as a
counter-proposal while negotiating with the Agency concerning revisions
in Nuclear Regulatory Commission (NRC) Manual Chapter 4170.

   The Union asserts that its proposal applies only to bargaining unit
employees both because the parties' contract contains language
restricting the applicability of proposals only to bargaining unit
employees and because the bargaining history of the parties shows that
negotiating proposals pertain only to bargaining unit members.  However,
contrary to the Union's position, pursuant to governing regulations set
out at 5 CFR 351.402(b)(1984), /2/ a competitive area is defined solely
in organizational and geographic terms and includes all employees within
the competitive area so defined.  Consequently, under these regulations
a competitive area must necessarily include supervisory employees within
its boundaries.  Thus, any attempt to define a competitive area would
directly affect working conditions of such nonbargaining unit employees.
 /3/

   The Authority, in National Federation of Federal Employees, Local
1705 and General Services Administration, 17 FLRA No. 123(1985),
petition for review filed sub nom. National Federation of Federal
Employees, Local 1705 v. FLRA, No. 85-1399 (D.C. Cir. June 28, 1985),
has addressed the negotiability of a proposal dealing with competitive
areas for RIF purposes where the record established that the proposed
competitive area affected nonbargaining unit employees.  In that case
the Authority noted that it is well established that the duty to bargain
does not extend to matters concerning positions and employees outside
the bargaining unit.  However, an agency generally may bargain over such
matters if it so chooses.  See, e.g., American Federation of Government
Employees, AFL-CIO, Local 2 and Department of the Army, Military
District of Washington, 4 FLRA 450(1980).  Since the Agency in this case
has elected not to bargain on the subject of competitive areas, the
disputed Union proposal in this case is outside the duty to bargain.
/4/ Accord American Federation of Government Employees, Local 2244 and
Department of the Navy, Naval Air Station, Meridian, Mississippi, 19
FLRA No. 64(1985).

   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., September 16, 1985
                                      (s) HENRY B. FRAZIER III
                                      Henry B. Frazier III, Acting
                                      Chairman
                                      (s) WILLIAM J. MCGINNIS JR.
                                      William J. McGinnis, Jr. Member
                                      FEDERAL LABOR RELATIONS AUTHORITY






--------------- FOOTNOTES$ ---------------


   /1/ The Agency contends that the Union's petition for review should
be dismissed because the Union waived its right to bargain concerning
the Agency's proposed changes in NRC Manual Chapter 4170 by failing to
exercise that right within the time limit set out in the parties'
collective bargaining agreement.  However, this contention, which is
clearly disputed by the Union, does not relate to the negotiability of
the proposal and in view of the Authority's decision that such proposal
is outside the duty to bargain, such contention need not be addressed
further herein.


   /2/ This OPM regulation is a Government-wide regulation within the
meaning of section 7117(a)(1) of the Statute because, pursuant to 5 CFR
351.202(1984), it applies to the civilian work force as a whole.
National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 748, 751-55 (1980).


   /3/ The validity of these regulations is currently being litigated.
See AFGE v. OPM, No. 85-2092 (D.D.C., filed June 27, 1985);  NTEU v.
Cornelius, No. 85-2101 (D.D.C., filed June 28, 1985);  and NFFE v.
Cornelius, No. 85-2109 (D.D.C., filed June 28, 1985).


   /4/ In view of the Authority's decision herein it is unnecessary to
address the Agency's additional contentions that the proposal is
inconsistent with Government-wide regulations.