52:0904(90)0-NG-2348 - - AFGE Local 1770 and DOD, Defense Commissary Agency, Central Region, Virginia Beach, Virginia - - 1997 FLRAdec 0-NG-2348 - - v52 p904
[ v52 p904 ]
The decision of the Authority follows:
52 FLRA No. 90
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
VIRGINIA BEACH, VIRGINIA
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
January 31, 1997
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
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. For the reasons that follow, we find that the proposal, which establishes a competitive area to be used in a reduction in force, is not within the duty to bargain under the Statute because it is inconsistent with a Government-wide regulation.
II. The Proposal
There will be one 'competitive area' utilized in Reduction-In-Force [sic] for Bargaining Unit Employees which effects [sic] any or all of the following Commissary Stores: Bragg, Mallonee and/or Pope Air Force Base.
III. Positions of the Parties
The Union asserts that limitation of a competitive area to bargaining unit positions is permitted under 5 C.F.R. § 351.402(b) because a bargaining unit constitutes an "organizational unit" within the meaning of that section.(1) The Union argues that the Authority's finding in International Federation of Professional and Technical Engineers and U.S. Department of the Navy, Marine Corps Security Force Battalion Pacific, 47 FLRA 1086 (1993) (Marine Corps Security Force Battalion Pacific), that a competitive area may not be limited to bargaining unit positions is contradicted by a later Authority decision. Specifically, the Union contends that in American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491 (1995) (OPM), petition for review, No. 95-1593 (D.C. Cir. Dec. 1, 1995), the Authority found that multiple competitive areas within the same organizational and geographic boundaries are permissible.
The Agency argues that this proposal is not within the duty to bargain. The Agency asserts that the proposed competitive area encompasses only bargaining unit employees, which is inconsistent with 5 C.F.R. § 351.402. Additionally, the Agency asserts that to be consistent with 5 C.F.R. § 351.402 the proposed competitive area must encompass both bargaining unit employees and nonbargaining unit employees. However, the Agency contends that under Authority precedent, a proposal that does so is not within the duty to bargain because it directly implicates the conditions of employment of supervisory personnel. In support of this last contention, the Agency cites National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Central Region, 52 FLRA 354 (1996) and OPM.
A. Meaning of the Proposal
As written, it is not clear whether this proposal limits the proposed competitive area to bargaining unit employees. However, it is evident from the Union's response to the Agency's statement of position that the Union clearly intends the proposed competitive area to be limited to employees in its bargaining unit. As the Union's explanation is consistent with the wording of the proposal, we adopt it for purposes of this decision. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996). Consequently, we will interpret the proposal as limiting the competitive area defined therein to the employees in the Union's bargaining unit.
B. The Proposal Is Inconsistent With a Government-wide Regulation
It is well established that defining a competitive area to include only bargaining unit employees is inconsistent with 5 C.F.R. § 351.402(b), which is a Government-wide regulation. See, e.g., U.S. Merit Systems Protection Board v. FLRA, 913 F.2d 976, 977, 980 (D.C. Cir. 1990) (MSPB v. FLRA); Nuclear Regulatory Commission v. FLRA, 895 F.2d 152, 156-57, 158 (4th Cir. 1990); Marine Corps Security Force Battalion Pacific, 47 FLRA at 1088-90.
We now turn to the Union's claim that a bargaining unit constitutes an organizational unit within the meaning of that regulatory provision. The term "organizational unit" is not specifically defined in 5 C.F.R. § 351.402(b) or elsewhere in part 351. However, it is clear from the examples that are provided within that regulation that the term refers to segments of the agency's administrative and functional structure that have been established by the Agency. For example, the organizational units that are specified in the regulation are "bureau, major command, directorate or other equivalent major subdivision of an agency" and "an activity under separate administration." 5 C.F.R. § 351.402(b).
Further support for this interpretation is found in revised provisions of the Federal Personnel Manual (FPM) that were issued in 1989 and elaborated on this regulatory provision.(2) The FPM indicates that identification of a competitive area should focus on an organizational segment's clear distinction from others "in operation, work function, staff, and personnel management." FPM Supplement 351-1, subchapter S3-2.c.(1) and (2). A bargaining unit, on the other hand, is a grouping of employees who are eligible for representation under the Statute. Among others, supervisors and managers are not eligible for representation. See 5 U.S.C. § 7112(b)(1). No authority is provided or apparent for concluding that the organizational units referred to in 5 C.F.R. § 351.402(b) are intended to be constituted along lines that define bargaining units. Cf. MSPB v. FLRA, 913 F.2d at 980 ("Nothing in the [Civil Service Reform] Act or OPM's implementing regulations supports the consideration of bargaining unit membership; rather, the Act and the regulations omit labor representation considerations from those few factors that affect retention privileges."). Therefore, although a bargaining unit may be encompassed within an organizational unit, or may include employees in many such units, we conclude that a bargaining unit and an organizational unit are not coextensive. Accordingly, we reject the Union's argument that a bargaining unit constitutes an organizational unit within the meaning of 5 C.F.R. § 351.402(b).
This proposal is inconsistent with a Government-wide regulation because it defines the competitive area to include only bargaining unit employees. Consequently, pursuant to section 7117(a)(1) of the Statute, this proposal is not within the duty to bargain. See Marine Corps Security Force Battalion Pacific, 47 FLRA at 1089-90. In reaching this conclusion, we reject the Union's assertion that OPM contradicts Marine Corps Security Force Battalion Pacific. The decision in OPM was confined to the question of whether the proposal involved, which defined competitive areas, directly implicated the conditions of employment of supervisory personnel. OPM did not address, and cannot be viewed as contradicting, the particular holding in Marine Corps Security Force Battalion Pacific that a proposal that limits a competitive area to bargaining unit employees is inconsistent with 5 C.F.R. § 351.402(b). In view of our conclusion, it is unnecessary to address the Agency's contentions reg