National Treasury Employees Union and Department of Health and Human Services, Food and Drug Administration, Region VII (Authority decision, February 3, 1983)

Final FLRA decision. This is a final Authority order resolving a negotiability appeal. 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 grouping positions under the HHS principal regional official within the Kansas City commuting area into one competitive area for reductions in force. HHS asserted that its personnel manual prevented bargaining, but filed no statement of position in this case. The Authority found the proposal materially identical to one it had held negotiable in its HHS Region IV ruling. It ordered bargaining on request and did not judge the proposal’s merits.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(D).
• Outcome: Kansas City competitive-area proposal negotiable; bargaining ordered on request.
• Key point: An agency must establish a compelling need for an internal rule it invokes to bar bargaining.

Full text (FLRA public release)

[ v11 p263 ]

11:0263(55)NG

The decision of the Authority follows:

11 FLRA No. 55

NATIONAL TREASURY EMPLOYEES
UNION
Union

and

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, FOOD AND DRUG
ADMINISTRATION, REGION VII
Agency

Case No. O-NG-609

DECISION AND ORDER ON NEGOTIABILITY ISSUES

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 issues relating to the negotiability of the following Union proposal:

The "Competitive Area" will be established by the Agency as all of those positions under the personnel administration and authority of the Principal Regional Official of DHHS-Kansas City, Missouri, within the commuting area of Kansas City, Missouri.

Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. The proposal at issue herein is, in all material respects, identical to Union Proposal 1 in National Treasury Employees Union and Department of Health and Human Services, Region IV, 11 FLRA No. 53 (1983). Thus, the Agency herein is essentially asserting, for the same reasons as it did in DHHS, Region IV, that negotiation of the proposal is barred by the same agency regulation, HHS Personnel Manual Instruction 351-1-40, /1/ which was raised therein. /2/ Therefore, based on the record in the present case, /3/ the Authority finds that the proposal at issue herein is within the duty to bargain for the reasons stated in DHHS, Region IV.

Accordingly, pursuant to section 2420.10 of the Authority's Rules and Regulations, IT IS HEREBY ORDERED that the Agency shall upon request of the Union (or as otherwise agreed to by the parties) bargain concerning the proposal. /4/ Issued, Washington, D.C., February 3, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ HHS Personnel Manual Instruction 351-1-40 establishes the Agency's competitive areas and provides in pertinent part:

351-1-40 COMPETITIVE AREAS

A. The normal subdivisions of the Department for reduction in force are outlined below:

. . . .

5. Positions under a regional office's appointing authority
   form competitive areas as follows:

a. Each PHS Hospital, SSA Program Service Center, and SSA Data Operations Center is a separate competitive area.

b. Positions within the Indian Health Service within each commuting area form a competitive area.

c. All other clerical, secretarial, and wage rate positions in a commuting area constitute a competitive area.

d. For positions other than those covered by 5.a., b., or c. above, separate competitive areas are established region-wide within each of the following components: Office of Secretary, Public Health Service, Health Care Financing Administration,
Office of Child Support Enforcement, Office of Human Development Services, and Social Security Administration.

/2/ It is noted that when an agency raises an agency rule or regulation as a bar to negotiations, it bears the burden of demonstrating that a "compelling need" exists for that particular rule or regulation. American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 450 (1980).

/3/ The Authority notes that the Agency filed no statement of position.

/4/ In deciding that the proposal is within the duty to bargain, the Authority makes no judgment as to its merits.