National Treasury Employees Union and Nuclear Regulatory Commission (Authority decision, September 16, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on a negotiability petition. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NTEU proposed using commuting areas to define where employees would compete during a reduction in force. The Authority found that a competitive area under the governing regulation necessarily includes supervisors as well as bargaining unit employees. Because the proposal would affect employees outside the unit, the NRC was not required to bargain over it. The Authority dismissed the petition.

Decision snapshot

• Authority: Negotiability under 5 U.S.C. § 7117(a)(1) and competitive areas under 5 C.F.R. § 351.402(b).
• Outcome: Proposal outside the duty to bargain; petition dismissed.
• Key point: A competitive area covering supervisors reached beyond the bargaining unit.

Full text (FLRA public release)

[ v20 p172 ]

20:0172(21)NG

The decision of the Authority follows:

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.