52:0354(33)NG - - NAGE, Local R4-45 and Defense Commissary Agency, Central Region - - 1996 FLRAdec NG - - v52 p354
[ v52 p354 ]
The decision of the Authority follows:
52 FLRA No. 33
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
September 30, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal, which establishes a "minimum" competitive area for reduction in force (RIF) purposes. For the reasons that follow, we find that the proposal is outside the duty to bargain under section 7117 of the Statute. Accordingly, we dismiss the petition for review.
II. The Proposal
As a minimum the competitive area will include all of the bargaining unit.
III. Positions of the Parties
The Agency argues that the proposal is inconsistent with 5 C.F.R. § 351.402, which, as relevant here, provides that the minimum competitive area in "the field" is an activity under separate administration.(2) According to the Agency, there currently are separate competitive areas for each commissary store where unit employees are represented by the Union.(3) The Agency states that the proposal would cause "employees at commissary stores that are not involved in a [RIF] to be affected by a [RIF] being conducted at a commissary store in another location." Statement of Position at 2. The Agency also states that, if the proposal is intended to include only bargaining unit employees in the proposed competitive area, it is inconsistent with 5 C.F.R. § 351.402 because it would not define the competitive area "solely in terms of the Agency's organizational unit and geographic location." Id. at 3.
In addition, according to the Agency, because a competitive area "must include all employees, the union's proposal would affect nonbargaining unit members at other store locations." Id. at 2. The Agency argues that, consistent with the Authority's decision in OPM, a proposal, such as the one in this case, that directly affects individuals outside the union's bargaining unit, is outside the duty to bargain on that ground.
The Union asserts that the intent of the proposal is to "have the competitive area for a [RIF] consistent with" the parameters of its bargaining unit. Petition for Review at 1. The Union claims that the proposal would not prevent the Agency from including supervisors, or other nonunit employees, in the proposed competitive area. According to the Union, the proposal would protect unit employees from "Agency manipulated [RIF] actions designed