National Treasury Employees Union and Department of Health and Human Services, Region VII, Office of Human Development Services (Authority decision, April 19, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability case. 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 a competitive area for personnel in HHS's Kansas City regional office. The Authority had previously ordered bargaining on the same proposal in an unfair labor practice case after rejecting the agency's claimed compelling need for a regulation. In this negotiability case, the agency raised a different objection: the proposed area also covered employees outside NTEU's unit, including employees represented by another union. The Authority held that NTEU could not bargain over conditions of employment for those nonunit employees and dismissed the petition.

Decision snapshot

• Authority: Bargaining unit exclusions under 5 U.S.C. § 7112(b).
• Outcome: Negotiability petition dismissed.
• Key point: A union's proposal cannot directly set employment conditions for employees outside its bargaining unit.

Full text (FLRA public release)

[ v17 p589 ]

17:0589(87)NG

The decision of the Authority follows:

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.