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 ]
52:0904(90)NG
The decision of the Authority follows:


52 FLRA No. 90

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1770

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE COMMISSARY AGENCY

CENTRAL REGION

VIRGINIA BEACH, VIRGINIA

(Agency)

0-NG-2348

_____

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

1. Union

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.

2. Agency

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.

IV. Analysis

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