American Federation of Government Employees, Local 32, AFL-CIO v. Federal Labor Relations Authority

• Decision Date: 16 August 1988
• Docket Number: Nos. 86-1447,AFL-CI,86-1642,P,s. 86-1447
• Citation: 853 F.2d 986
• Parties: 129 L.R.R.M. (BNA) 2103, 272 U.S.App.D.C. 55 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 32,etitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 986

853 F.2d 986

129 L.R.R.M. (BNA) 2103, 272 U.S.App.D.C. 55

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 32, AFL-CIO, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

Nos. 86-1447, 86-1642.

United States Court of Appeals, District of Columbia Circuit.

Argued March 25, 1987.

Decided Aug. 16, 1988.

Phillip R. Kete with whom Anne Wagner and Mark D. Roth, Washington D.C., were on the joint brief for American Federation of Government Employees, Local 32, AFL-CIO, petitioner in No. 86-1447 and AFGE, AFL-CIO HUD Council 122, petitioner in No. 86-1642.

Thomas J. Spangler with whom Louis G. Williams, H. Stephan Gordon and Patrick J. Riley, Washington, D.C., were on the joint brief for NTEU, petitioner in No. 86-1488 and NFFE, petitioner in No. 86-1495.

Ruth E. Peters, Solicitor, FLRA, with whom William E. Persina, Deputy Solicitor, FLRA, Arthur A. Horowitz, Associate Counsel, and Elsa D. Newman, Attorney, FLRA, Washington, D.C., were on the brief for respondent.

Before RUTH BADER GINSBURG, WILLIAMS and McGOWAN, ^* Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

In these four consolidated cases, union locals representing federal employees have petitioned for review of Federal Labor Relations Authority (FLRA or Authority) decisions declaring particular union proposals beyond the employer-agency's duty to bargain under the Federal Service Labor-Management Relations Act, 5 U.S.C. Secs. 7101 et seq. (FSLMRA). Specifically, the unions contest the FLRA's analysis and conclusions concerning union proposals that would define an agency's "competitive area" and thereby determine which employees would compete with each other for job retention when an agency administers a reduction-in-force (RIF).

Two of these cases are before the court for a second time; all four cases involve the same central issue. In a prior opinion, the court directed the Authority to explain its apparent departure from its own precedent and from that of private sector labor cases when it concluded that the agencies need not bargain over the proposals. Local 32, Am. Fed'n of Gov't Employees, AFL-CIO v. FLRA, 774 F.2d 498 (D.C.Cir.1985) (Local 32 ). In its most recent decisions, e.g., American Fed'n of Gov't Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA No. 49 (1986) (Local 32 II ), the FLRA has articulated

                an approach that purports to resolve the difficulties we identified.  The Authority's approach, however, fails to satisfy our earlier mandate.  We therefore grant the petition for review and remand these cases to the FLRA with a renewed instruction to reconcile its inconsistent decisions and set forth its analysis "candidly and in a manner that persons affected by the Authority's decisions can comprehend."   Local 32, 774 F.2d at 506
                

I.

In the lexicon of federal labor relations, a competitive area is simply a grouping of employees within an agency, according to their geographical or organizational location, who compete for job retention when a particular position is abolished or some other adverse action constituting a RIF is imposed. ¹ In such circumstances, an employee holding the affected position may be able to prevail over less senior or less qualified employees who hold different positions but are within the same competitive area. ² The importance of the competitive area to job retention understandably has led the federal employee unions to demand a voice in how that area is defined.

We confront in the four cases consolidated here several union-proposed competitive area definitions. In No. 86-1447, Local 32 of the American Federation of Government Employees (AFGE) proposed to the Office of Personnel Management that the competitive area "shall be the Washington Metropolitan Area." Local 32, 774 F.2d at 500 & n. 1, on remand, American Fed'n of Gov't Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA No. 49 (July 9, 1986) (Local 32 II ). In No. 86-1495, Local 29 of the National Federation of Federal Employees proposed to the Army Corps of Engineers that the competitive area be

the geographic area that usually constitutes one area for employment purposes. It includes any population center (or two or more neighboring ones) and the surrounding localities in which people live and can reasonably be expected to travel back and forth daily in their usual employment.

Local 32, 774 F.2d at 501, on remand, National Fed'n of Fed. Employees, Local 29 and Dep't of the Army, U.S. Army Corps of Engineers, Kansas City Dist., 22 FLRA 692 (1986). In No. 85-1749, the National Treasury Employees Union proposed that the Nuclear Regulatory Commission accept the "commuting area as the area of competition" and use "normal personnel considerations ... in determining the similarity of positions." National Treasury Employees Union and Nuclear Regulatory Comm'n, 22 FLRA 707 (1986) (NRC ). Finally, in No. 86-1642, HUD Council 22 of the AFGE, in negotiations with the Department of Housing and Urban Development, made two distinct proposals:

Competitive Areas Proposal 1.

The competitive area for reductions in force shall be determined by negotiation on a case-by-case basis according to management needs.

Competitive Areas Proposal 2.

Headquarters. The competitive area for headquarters is the commuting area, headquarters wide.

American Fed'n of Gov't Employees, AFL-CIO, HUD Council 22 and Dep't of

Hous. & Urban Dev., 23 FLRA 552, 553 (1986) (HUD Council ).

Each of the four cases consolidated for our review presented the identical legal issue to the FLRA: whether a union proposal that would define an agency's competitive area is within the agency's duty to bargain collectively, despite the proposal's direct impact on employees who are not represented by the bargaining union. In all four cases, the agency refused to bargain over the competitive area, and the FLRA upheld that refusal. ³

The Authority's reasoning in its first consideration of the Local 32 case indicates the approach that has guided the FLRA's course in these cases both before and after this court's decision in Local 32. The FLRA, regarding the impact on employees other than those represented by the negotiating union as dispositive of bargainability, held that an agency's statutorily imposed duty to bargain does not extend to proposals with a direct impact on the working conditions of employees outside the bargaining unit. 14 FLRA 754 (1984).

In our first encounter with this matter, Local 32, 774 F.2d 498 (D.C.Cir.1985), Judge McGowan, writing for the court, identified a number of infirmities in the FLRA's reasoning. Of prime importance, the Authority's position in the original Local 32 and Local 29 cases appeared to be inconsistent with the FLRA's ruling in another case, Association of Civilian Technicians, Pa. State Council and Pa. Army and Air Nat'l Guard, 14 FLRA 38 (1984) (ACT ). In ACT, the FLRA had held within an agency's duty to bargain a union proposal that in essence defined the agency's competitive area as coextensive with the bargaining unit.

The proposal in ACT specified that "non-bargaining unit technicians will not compete with bargaining unit technicians for bargaining unit positions." That proposal evidently would have had a direct effect on employees outside the bargaining unit for, in the event of a RIF, it would have eliminated those employees' eligibility to compete for positions within the unit. The court pointed out that the effect of the proposal in ACT appeared comparable to the proposals in Local 32 and Local 29. The impact on employees not represented by the negotiating union seemed clear in all three instances, although in Local 32 and Local 29 the union sought inclusive rather than exclusive definitions of the pertinent competitive area. The FLRA, we said, had failed to explain intelligently why Local 32 and Local 29 were not decided the same way as ACT, or to adopt explicitly a new approach. 774 F.2d at 503-04.

This failure was all the more troubling, we observed, in light of other Authority precedent holding proposals within the duty to bargain despite an evident effect on nonbargaining unit employees. See Local 32, 774 F.2d at 503 & n. 5. Reinforcing this second consideration was a third: the "familiar principle of private sector labor law" that a proposal "vitally affecting" the terms or conditions of unit employees is subject to mandatory bargaining despite its potential effects on third parties. Id. (citing Ford Motor Co. v. NLRB, 441 U.S. 488, 502, 99 S.Ct. 1842, 1851, 60 L.Ed.2d 420 (1979); Allied Chem. & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 179, 92 S.Ct. 383, 397, 30 L.Ed.2d 341 (1971); and Fibreboard Paper Prods. Co. v. NLRB, 379 U.S. 203, 210, 85 S.Ct. 398, 402, 13 L.Ed.2d 233 (1964)). Finally, we After our remand in Local 32, the Authority adhered to its initial rulings; the FLRA concluded that none of the proposals at issue in the four cases now here falls within an agency's statutory duty to bargain. ⁴ In explanation of its dispositions, the Authority stated:

                noted, in one of the cases then before us, the agency in the previous bargaining period had assumed that the definition of a competitive area in a RIF was bargainable.   Local 32, 774 F.2d at 504
                

Under the Statute, in determining the negotiability of proposals which affect the conditions of employment of unit as well as nonunit 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...