19:0491(63)NG - NAGE Local R7-23 and Air Force HQ 375th ABG (MAC), Scott AFB, IL -- 1985 FLRAdec NG
[ v19 p491 ]
The decision of the Authority follows:
19 FLRA No. 63 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23 Union and DEPARTMENT OF THE AIR FORCE, HEADQUARTERS 375th AIR BASE GROUP (MAC), SCOTT AIR FORCE BASE, ILLINOIS Case No. O-NG-1033 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: All bargaining unit positions in all areas serviced by the CCPO shall be in the same competitive area for reduction-in-force purposes. Upon careful consideration of the entire record, /1/ including the parties' contentions, 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 Consolidated Civilian Personnel Office (CCPO) referred to in the proposal services areas which are composed of both bargaining unit employees and nonbargaining unit employees, as well as appropriated fund and non-appropriated fund employees. The Union claims that its proposal is not intended to include nonbargaining unit employees or employees represented by another bargaining agent in the proposed competitive area. Instead, the Union argues that its proposal is intended only to place all bargaining unit employees it represents in a single competitive area. In this respect 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), determined that a proposal seeking to define a competitive area was outside the duty to bargain because it concerned working conditions of nonbargaining unit employees. In that case the union also claimed that its intention was to negotiate only for bargaining unit employees. Notwithstanding the union's intent, the Authority found that pursuant to Government-wide OPM regulations, set out at 5 CFR 351.402(b) (1984 Supp.), a competitive area is defined in organizational and geographic terms and includes all employees within the competitive area so defined. 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. As relevant herein, the Agency in this case relies upon the same Government-wide regulation. During the pendency of this case, however, the OPM regulations defining a competitive area were superceded. The new Government-wide regulations specifically define a competitive area "solely in terms of an agency's organizational unit(s) and geographical location, and must include all employees within the competitive area so defined." 5 CFR 351.402(b) (1984). /2/ Thus, while the definition of a competitive area has been modified such change is not material to the dispute herein. That is, under either definition a competitive area will include supervisory personnel. Consequently, as a union proposal defining a competitive area will directly affect working conditions of nonbargaining unit employees it would be negotiable only at the election of the agency. 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. Accord American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 14 FLRA 754 (1984), petition for review filed sub nom. American Federation of Government Employees, Local 32, AFL-CIO v. FLRA, No. 84-1250 (D.C. Cir. June 15, 1984). 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., July 31, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Pursuant to section 2424.8 of the Authority's Rules and Regulations the Authority will not consider any submission filed by a party beyond that authorized by other sections of the regulations unless such submission is requested by the Authority or unless a party requests and the Authority grants permission to file such a submission. Since the Authority did not request the Agency's submission filed herein and the Agency did not request permission to file such a submission it was not considered in this case. /2/ 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).