[ v22 p478 ]
22:0478(49)NG
The decision of the Authority follows:
22 FLRA No. 49
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 32, AFL-CIO
Union
and
OFFICE OF PERSONNEL MANAGEMENT
Agency
Case No. 0-NG-914
14 FLRA 754
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, American Federation of
Government Employees, Local 32, AFL-CIO and Office of Personnel
Management, 14 FLRA 754 (1984) (Local 32), the Authority held a Union
proposal defining the competitive area to be used for RIF to be outside
the duty to bargain. On review, the D.C. Circuit found an apparent
inconsistency between this Authority finding 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. It remanded
this case and another case with the same holding, 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), and directed the Authority to address and resolve the apparent
conflict between its Local 32 and ACT decisions. Local 32, American
Federation of Government Employees v. FLRA, 774 F.2d 498 (D.C. Cir.
1985).
III. Consideration of D.C. Circuit in Remanding Case
The D.C. Circuit highlighted four considerations in remanding this
case to the Authority to resolve the apparent conflict between these two
decisions:
A. The Authority had previously adhered to the principle that
a proposal may be a mandatory subject of bargaining despite its
effect on nonbargaining unit employees;
B. the Authority's decisions in these cases appear to be at
odds with a familiar principle of private sector labor law that a
proposal concerning terms and conditions of employment is within
the duty to bargain despite its effects on third parties;
C. the agency involved in this case had previously bargained a
similar provision defining competitive area; and
D. the Authority's attempt to distinguish the two cases was
incomplete because it did not and could not state that the ACT
proposal had no effect on nonbargaining unit employees.
IV. Analysis
A. The Authority's Analysis of Proposals Which Affect
Employees Outside the Bargaining Unit
In the Federal as in the private sector, the statutory obligation to
negotiate extends only to conditions of employment within the bargaining
unit. Matters involving individuals outside the employment relationship
normally are excluded. /1/
In the Federal sector, laws and regulations sometimes require uniform
treatment of employees based upon considerations such as fairness,
equity and effective, efficient administration of Government. As a
result, some conditions of employment of bargaining unit employees may
be inseparable from those of nonunit employees. The Authority has, in a
number of instances, been presented with bargaining proposals regarding
the conditions of employment of unit employees which also affect
employees outside the unit. Proposals relating to RIF frequently have
this result because controlling Government-wide regulations mandate
uniform procedures. In such circumstances, the Authority has attempted
to strike an appropriate balance between the right of the union to
negotiate over the conditions of employment of bargaining unit employees
and the right of the agency to set the conditions of employment of
nonbargaining unit employees; indeed, the requirement that they be set
consistent with Govenment-wide rules and regulations. This approach is
consistent with the analysis and discussion by the Supreme Court in its
Allied Chemical decision where it noted that, "other considerations
(besides the impact on the interests of bargaining unit employees) such
as the effect on the employer's freedom to conduct its business, may be
equally important." 404 U.S. 157, 180 n. 19 (1971). On the one hand, it
is the Authority's view that the scope of bargaining would be unduly
restricted by a rule limiting the bargaining obligation to negotiable
proposals which have absolutely no effect on employees outside the
bargaining unit. Therefore, it has not adopted such a rule. On the
other hand, a rule requiring negotiations on proposals which actually
establish conditions of employment of nonunit employees goes beyond the
requirements of the Statute and might unduly impede the Agency in
functioning effectively and efficiently. To balance these conflicting
rights, the Authority has distinguished (1) permissively negotiable
proposals which would affirmatively establish or define a condition of
employment for nonunit employees or positions /2/ from (2) mandatorily
negotiable proposals which would affect conditions of employment of
nonunit employees or positions only to a lesser degree. /3/
B. Departure from Private Sector Approach
The Authority is of course aware that the approach it has taken in
administering the Statute differs somewhat from that adopted by the
National Labor Relations Board. The Board focuses on whether a matter
"vitally affects" terms and conditions of employment of unit employees
in resolving questions concerning the scope of the duty to bargain in
the private sector. See note 1, supra. Congress, however, did not
intend to require that Federal sector labor relations be a mirror image
of the private sector scheme. There is no indication in either the
Statute itself or its legislative history that Congress intended the
substantive case precedent of the National Labor Relations Board to
apply in the Federal sector. There is indication, rather, that Congress
perceived a need to accommodate circumstances present in Government
which are different from those in the private sector. In section 7101,
Congress stated its purpose in passing the Statute as "to establish
procedures which are designed to meet the special needs of Government."
Furthermore, that section mandates that the Statute be "interpreted in a
manner consistent with the requirements of an effective and efficient
Government."
Additionally, the Statute's antecedents are in the Executive Order
program rather than the National Labor Relations Act. This was
emphasized by Congress in passing section 7135(b) of the Statute which
expressly provides for the continuation of policies, regulations,
procedures and decisions which emanated under the Executive Order
program, unless they are superseded by the Statute or by regulations or
decisions issued under the Statute. The Authority's approach to dealing
with proposals which effect employees outside the bargaining unit is
congruent with previous Federal sector practice as contrasted with
private sector practice. /4/
Under the Statute, in determining the negotiability of proposals
which affect the conditions of employment of unit as well as non-unit
employees, the Authority will balance the right of the union to
negotiate over the conditions of employment of bargaining unit employees
and the right of the agency to set the conditions of employment of
nonbargaining unit employees. In weighing the parties' respective
rights, we will determine whether the nature and degree of the impact of
the proposal is so intrinsically related to the working conditions of
nonunit employees so as to invade the purview of other unit
representatives or require the agency to act in a way that will have a
significant effect on the rights of employees not represented by the
union offering the disputed proposal. In such a case, management is not
required to bargain. However, where the proposal has only a limited or
indirect effect on the interests of employees outside the bargaining
unit it will be subject to appropriate negotiations.
This approach is consistent with earlier Federal sector practice as
well as with our considerations in previous Authority precedent and
differs from private sector considerations inasmuch as the Authority
will look to the effect of the proposal on nonunit employees and will
not limit our examination to the interest of bargaining unit members.
C. Previous Bargaining by the Agency on a Similar Proposal
The Authority has never held that negotiating over competitive areas
is prohibited. However, it has held that an agency is not obligated to
bargain over proposals which directly determine conditions of employment
of nonbargaining unit employees even though it can bargain over these
matters if it chooses to do so. Therefore, under Authority precedent
any agency could properly bargain over the definition of a competitive
area which would include nonunit employees, as the Agency here
apparently did in the past. Nonetheless, in the Federal as in the
private sector, previous bargaining over a permissive matter would not
prevent an agency negotiating a new agreement from changing its position
and refusing to bargain over an elective subject. Where an agency, as
here, raises the asserted issue as a bar to negotiations, the Authority
will not order the parties to bargain because of their prior bargaining
history.
D. The Authority's Holdings Concerning Competitive Areas
in the Local 32 and ACT Cases
For the employees involved in the Local 32 case, as for most Federal
employees, a RIF must be carried out in accordance with regulations
prescribed by the Office of Personnel Management (OPM) pursuant to 5
U.S.C. Section 3502. These regulations establish a comprehensive system
for determining which employees will be retained in the positions which
remain in an agency undergoing a RIF. Within that system "competitive
area" constitutes the basic geographic and organizational boundaries
within which employees will compete for retention. The OPM regulations
do not allow competitive area to be defined in terms of types of
positions, as, for example, bargaining unit positions. Consequently, as
a practical matter, most competitive areas which are established under
OPM regulations will include both bargaining unit and nonunit positions
and employees. /5/
In Local 32, the proposal would have defined the competitive area for
RIF as the Washington Metropolitan Area. The Agency asserted and the
Union did not dispute that the proposed competitive area would include
nonbargaining unit employees. The Authority considered whether the
nature and degree of the impact of the proposal was so intrinsically
related to the working conditions of nonunit employees so as to directly
determine and prescribe their conditions of employment. Our result was
dictated by the fact that the disputed proposal, by defining the
competitive area as the Washington Metropolitan Area, would undoubtedly
include unit and nonunit employees. Acceptance of the Union's
designation of competitive area would allow it to determine with whom
nonunit employees would compete for retention rights in the event of a
RIF and further allow it to prescribe the area in which the competition
would take place. Since the Authority determined that under the Statute
an agency has no duty to bargain with a union to establish the
conditions of employment of nonbargaining unit employees, it held the
proposed competitive area to be outside the Agency's obligation to
bargain.
In its decision in ACT, in contrast, the Authority found the proposed
competitive area to be within the Agency's duty to bargain. This
finding was based upon circumstances viewed as being materially
distinguishable from those present in the Local 32 case. The proposal
in ACT essentially defined a competitive area for RIF limited to the
bargaining unit. As previously mentioned, such a competitive area would
not be consistent with the OPM regulations applicable in the Local 32
case. However, in the ACT case, as distinguished from Local 32, the
bargaining unit consists of National Guard Technicians who are not
subject to those OPM regulations. See 5 CFR 351.202(c)(5) (1986).
The proposal in ACT for that reason would have directly determined or
defined the competitive area only for bargaining unit positions and
employees. It also undeniably would have affected or influenced in a
limited, indirect way the potential scope of any competitive area for
nonbargaining unit employees by excluding them from the area negotiated
for the bargaining unit. However, the proposal would not otherwise
limit or prescribe a competitive area for those nonunit employees.
Hence, it did not define or directly determine a condition of their
employment.
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.
V. Conclusion
Because the proposal in Local 32 would directly determine conditions
of employment for employees outside the bargaining unit, it is
nonnegotiable.
Issued, Washington, D.C., July 9, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) See sections 7103(a)(12) and 7114(a)(1) of the Statute. For
discussion of the private sector approach, see Allied Chemical and
Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971).
(2) See, for example, Service Employees' International Union,
AFL-CIO, Local 556 and Department of the Army, Office of the Adjutant
General, Hale Koa Hotel, Honolulu, Hawaii, 9 FLRA 687 (1982) and
International Federation of Professional and Technical Engineers,
AFL-CIO, NASA Headquarters Professional Association and National
Aeronautics and Space Administration, Headquarters, Washington, D.C., 8
FLRA 212 (1982).
(3) See, for example, National Treasury Employees Union and Internal
Revenue Service, 7 FLRA 275 (1981) (Proposal 2).
(4) See, for example, Texas ANG Council of Locals, AFGE and State of
Texas National Guard, 4 FLRC 154 (1976), in which a proposal concerning
the filling of threshold supervisory positions was found to be outside
the duty to bargain and Lodge 2424, IAM-AW and Kirk Army Hospital and
Aberdeen Research and Development Center, Aberdeen, Md., 1 FLRC 526,
532-33 (1973), where a proposal which involved a procedure within which
unit employees competed with outside applicants for jobs was found to be
negotiable.
With respect to cases concerning competitive areas, no negotiability
decision addressed whether competitive areas were within the duty to
bargain. Two ULP decisions addressed issues relating to competitive
areas, Department of the Interior, Bureau of Reclamation, Yuma Projects
Office, Yuma, Arizona and Local 1487, NFFE, Blythe, California, 4 FLRC
486 (1976) and Department of the Army, U.S. Army Electronics Command,
Fort Monmouth, New Jersey and Local 476, NFFE, 5 FLRC 579 (1977).
Neither decision specifically addressed whether competitive areas were
within the duty to bargain where an agency raised issues as to the
effect on nonunit employees. The second case stated in a footnote that
it was undisputed that establishment of competitive areas was
negotiable. However, it was found that an agency had no obligation to
bargain with a NFFE local over changes in competitive areas where the
group of employees involved in the change were represented by a
different labor organization, although NFFE represented certain
employees assigned to and remaining in the affected competitive area.
In that case, the bargaining obligations were determined by balancing
among the respective interests of the agency, the different groups of
employees, and the labor organizations which represent them; defining
the obligation to bargain in this manner circumvented practical
difficulties which would arise if the agency were required to negotiate
separately and independently with each labor organization over the same
change.
(5) Depending on organizational and geographic circumstances, a given
competitive area could include three general categories of "nonunit"
employees: (1) those ineligible for inclusion in bargaining units, such
as supervisors, management officials, and employees engaged in Federal
personnel work in other than a purely clerical capacity; (2) those
employees who are eligible but unrepresented and (3) those employees of
the same agency who are in other bargaining units represented by the
same or different unions.