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47 FLRA No. 125

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND TECHNICAL ENGINEERS

LOCAL 11

(Union)

and

U.S. DEPARTMENT OF THE NAVY

MARE ISLAND NAVAL SHIPYARD

MARE ISLAND, CALIFORNIA

(Agency)

0-NG-2112

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

July 26, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one proposal. The Agency filed a statement of position (statement) and the Union filed a response to the statement. For the reasons that follow, we find that the proposal is nonnegotiable.

II. Background

On December 13, 1991, the Department of Defense (DOD) directed the Defense Finance and Accounting Service (DFAS) to consolidate the finance and accounting functions of DOD components by October 1, 1992, and assume immediate responsibility for all "finance and accounting regionalization/consolidation efforts throughout DOD." Statement of Position (Statement) at 1. As relevant here, the DFAS "was mandated to assume the comptroller functions of Mare Island Naval Shipyard (MINSY) Vallejo, as part of an overall assumption" of the finance and accounting functions in DOD. Petition for Review (Petition) at 1. The consolidation was to be accomplished in several phases, which included the transfer of "a small . . . number of bargaining unit employees from MINSY to DFAS." Id. These employees would still be physically located at MINSY, but "would move with their function [and] would now be employees of DFAS," rather than MINSY. Id. The transfer was scheduled to occur in March 1993. The Union submitted proposals addressing the impact and implementation of the proposed transfer of the unit employees from MINSY to DFAS. Only the proposal in this case remains in dispute.

III. Proposal

Proposal 6: If the bargaining unit employees from MINSY going to DFAS MINSY are RIF'd [reduced in force] by DFAS, the employees will retain all rights to bump and retreat to positions they formerly held or were qualified for under the rules of RIF [reduction in force] set forward in law, rule, regulation and the Negotiated Agreement.

IV. Positions of the Parties

A. Agency

The Agency contends that the proposal is nonnegotiable because it conflicts with sections 7103(a)(12) and 7114(a)(1) of the Statute.⁽¹⁾ According to the Agency, the employees who would be affected by this proposal will not be in a MINSY bargaining unit after they are transferred, but rather will be employees of another DOD activity, DFAS. The Agency notes that the Union stated that the "'proposal only applies while the bargaining unit employees are employed at DFAS[.]'" Statement at 2 (quoting Petition at 2). The Agency contends, therefore, that the proposal does not concern the conditions of employment of employees in the bargaining unit represented by the Union, but instead concerns RIF procedures for employees outside the Union's bargaining unit. The Agency asserts that it has no duty to bargain over the working conditions of employees who are not in the bargaining unit represented by the Union.

The Agency further contends that the proposal conflicts with 5 C.F.R. § 351.402(b), a Government-wide regulation, and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.⁽²⁾ The Agency notes the Union's statement that the Union "'is requesting [] a temporary expansion of the competitive area to include MINSY employees absorbed by DFAS[.]'" Id. at 4 (quoting Petition at 2). The Agency asserts that, as a result of the reorganization, DFAS employees will be in a separate competitive area. The Agency contends that by the terms of 5 C.F.R. § 351.402(b), "a competitive area must be defined in terms of 'an agency's organizational unit.'" Id. (emphasis added by Agency). The Agency states that while the term "organizational unit" has not been defined clearly, "DFAS and [MINSY] are separate organizational units." Id. The Agency asserts that "only DFAS has administrative authority to make decisions affecting its employees and only [MINSY] has administrative authority to make decisions affecting its employees." Id. at 5. Accordingly, the Agency argues that as DFAS and MINSY are separate organizational units, the proposal to expand MINSY's competitive area to include the employees absorbed by DFAS is inconsistent with 5 C.F.R. § 351.402(b).

The Agency also asserts that because the proposal conflicts with a Government-wide regulation, the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Union

The Union states that it is the exclusive representative for the employees affected by the proposed transfer to DFAS and that "[c]learly, under [sections] 7103(a)(12) and 7114(a)(1) [of the Statute], [it] has the right . . . to negotiate for the bargaining unit employees involved concerning matters affecting their employment." Response at 1.⁽³⁾ In support, the Union cites International Association of Machinists and Aerospace Workers, Local Lodge 2297 and U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina, 38 FLRA 1451 (1991), reversed and remanded sub nom. United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992), decision on remand, 45 FLRA 1154 (1992).

The Union asserts that the proposal does not conflict with 5 C.F.R. § 351.402(b). The Union contends that the agency involved in this case is DOD. The Union asserts that 5 C.F.R. § 351.402(b) provides that there is a minimum competitive area, but the maximum competitive area is defined by the commuting area. According to the Union, the competitive area defined in the proposal meets the definition set forth in 5 C.F.R. § 351.402(b) in that "all commands named in the proposal are located in the Mare Island commuting area." Response at 4.

The Union also contends that the proposal is an appropriate arrangement for the employees affected by the transfer to DFAS. According to the Union, the intent of the proposal is to prevent the loss of those employees' ability during a RIF at DFAS "to be able to bump and retreat to positions they are qualified for under the regulations of [RIF] at MINSY." Petition at 1-2. The Union explains that what it is "requesting is a temporary expansion of the competitive area to include MINSY employees absorbed by DFAS . . . ." Id. at 2. The Union also contends that the proposal "only applies to the bargaining unit employees on the [transfer] list" and only while they are employed at DFAS. Id.

V. Analysis and Conclusions

We find that the proposal is nonnegotiable because it is inconsistent with 5 C.F.R. § 351.402, a Government-wide regulation.

Under 5 C.F.R. § 351.402, competitive areas are the organizational and geographic boundaries within which employees compete for job retention in a RIF. With certain exceptions inapplicable here, competitive areas must comply with 5 C.F.R. § 351.402, a Government-wide regulation issued by the Office of Personnel Management. See, for example, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 44 FLRA 18, 26 (1992) (NWS), petition for review filed, No. 92-1171 (D.C. Cir. Apr. 17, 1992). As relevant here, 5 C.F.R. § 351.402(b) provides that a competitive area may be defined only in terms of "an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined." Thus, to comply with 5 C.F.R. § 351.402(b), a competitive area must include all employees, both unit and nonunit, who are within the organizational and geographic boundaries of the competitive area. See NWS, 44 FLRA at 27.

The proposal establishes RIF rights for certain MINSY bargaining unit employees after they are transferred to DFAS. As mentioned above, the Union states that the proposal only applies to the approximately 11 unit employees from MINSY after they are transferred to DFAS and is intended to prevent the loss of these employees' ability during a RIF at DFAS "to be able to bump and retreat to positions they are qualified for under the regulations of [RIF] at MINSY." Petition at 1-2. Specifically, the Union explains that it is seeking "a temporary expansion of the competitive area to include MINSY employees absorbed by DFAS . . . ." Id. at 2.

Based on the wording of the proposal and the Union's explanation, we interpret the proposal as seeking to establish a competitive area that consists of employees at MINSY and approximately 11 unit employees from MINSY who are transferred to DFAS. Interpreted in this manner, the proposal seeks to establish a competitive area that consists of employees in MINSY and only a portion of the total number of DFAS employees. However, as mentioned above, 5 C.F.R. § 351.402(b) requires that a competitive area be defined only in terms of "an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined." Accordingly, we find that by establishing a competitive area that consists of employees in MINSY and only a portion of the total number of DFAS employees, the proposal is inconsistent with 5 C.F.R. § 351.402(b). See, for example, International Federation of Professional and Technical Engineers and U.S. Department of the Navy, Marine Corps Security Force Battalion, Pacific, 47 FLRA No. 102, slip op. at 4-5 (1993). Consequently, the proposal is inconsistent with a Government-wide regulation and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute. Further, as the proposal is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with a Government-wide regulation, we find that it is unnecessary to address whether the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Authority does not consider whether a proposal constitutes an appropriate arrangement when the proposal is nonnegotiable under section 7117(a)(1) of the Statute. See id., slip op. at 5.⁽⁴⁾

VI. Order

The petition for review is dismissed.

APPENDIX

Section 7103(a)(12) provides, in pertinent part:

'[C]ollective bargaining' means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees . . . .

Section 7114(a)(1) provides, in pertinent part:

A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. . . .

5 C.F.R. § 351.402(b) provides:

§ 351.402 Competitive area.

. . . .

(b) A competitive area may consist of all or part of an agency. The minimum competitive area in the departmental service is a bureau, major command, directorate or other equivalent major subdivision of an agency within the local commuting area. In the field, the minimum competitive area is an activity under separate administration within the local commuting area. A competitive area must be defined solely in terms of an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The text of sections 7103(a)(12) and 7114(a)(1) of the Statute is set forth in the Appendix to this decision.

2. The text of 5 C.F.R. § 351.402(b) is set forth in the Appendix to this decision.

3. The proposed transfer to DFAS affects approximately 11 unit employees. The Union states that when the transfer of the employees to DFAS takes effect, it will petition the Authority to represent those employees. The Union also asserts that, because it represents all clerical and technical employees at MINSY, it believes that the Authority would find that the transferred employees share a community of interest with the current unit. We note also that DFAS indicated to employees affected by the transfer that it was prepared to file a clarification of unit petition with the Authority seeking a determination as to whether the transferred employees are part of the unit at the DFAS Center where they report and, if not, a determination as to which, if any, unit the employees are part of. Petition, Attachment entitled "Questions and Answers on Human Resources" at 6.

4. In view of our disposition of this case, we do not address the parties' other contentions.

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