National Treasury Employees Union and Department of Health and Human Services, Region II (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 separate competitive areas for New York and New Jersey, Puerto Rico, and the Virgin Islands during reductions in force at HHS Region II. HHS argued that its personnel manual barred negotiation over the proposed areas. The Authority said the proposal and arguments materially matched its ruling concerning HHS Region IV. It held the proposal within the duty to bargain and ordered HHS to bargain on request, without judging the proposal’s merits.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(D).
• Outcome: Geographic competitive-area proposal negotiable; bargaining ordered on request.
• Key point: The Authority applied its Region IV ruling to a similar proposal for HHS Region II.

Full text (FLRA public release)

[ v11 p266 ]

11:0266(56)NG

The decision of the Authority follows:

11 FLRA No. 56

NATIONAL TREASURY EMPLOYEES
UNION
Union

and

DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
REGION II
Agency

Case No. O-NG-615

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 employer will establish three competitive areas within Region II as follows:

(a) New York, New Jersey;

(b) Puerto Rico;

(c) Virgin Islands.

Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. Essentially, the Union proposes that there be three competitive areas within the Region, based upon geographical considerations as opposed to the Region's organizational structure (i.e., its operational components). The Agency contends that negotiation over the proposal is barred by an Agency regulation for which a compelling need exists. /1/

The proposal at issue herein and the positions of the parties with respect thereto are, in all material respects, substantially identical to Union Proposal 1 in National Treasury Employees Union and Department of Health and Human Services, Region IV, 11 FLRA No. 53 (1983). For the reasons stated therein, the Authority finds that the present proposal is within the duty to bargain. /2/

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS HEREBY ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning the proposal. 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/ The Agency regulation asserted as a bar to negotiations, 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/ In so deciding, the Authority makes no judgment as to its merits.