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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
                                            Case No. O-NG-1033
    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
          All bargaining unit positions in all areas serviced by the CCPO
       shall be in the same competitive area for reduction-in-force
    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
                                       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).