19:0494(64)NG - AFGE Local 2244 and Navy, Naval Air Station, Meridian, MS -- 1985 FLRAdec NG

 19 FLRA No. 64
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2244
 Union
 
 and
 
 DEPARTMENT OF THE NAVY, NAVAL
 AIR STATION, MERIDIAN, MISSISSIPPI
 Agency
 
                                            Case No. O-NG-1025
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    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
 proposal:
 
          Employees of Tenant Commands and/or employees other than those
       in the bargaining unit will not be placed in the same competitive
       area for reduction-in-force as UNIT employees.
 
    Upon careful consideration of the entire record, 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).  The Union contends
 that the proposal is consistent with governing regulations, set out at 5
 CFR 351.402(b) (1984 Supp.), and is not an attempt to bargain over
 conditions of employment of employees outside the bargaining unit as
 employees of the Agency's tenant activities are not under the
 administrative authority of the Agency, and, therefore, will not be
 affected by any contract negotiated between the Union and the Agency.
 
    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), the Authority 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.  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.
 
    During the pendency of the instant case the OPM regulations cited
 above defining a competitive area were superceded by new Government-wide
 OPM regulations, set out at 5 CFR 351.402(b) (1984).  /1/ These new
 regulations specifically define a competitive area "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."
 Thus, while the definition of a competitive area has been modified under
 the new regulations, 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
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ While the Agency cited the new regulations in its Statement of
 Position, they were not in effect at the time the Union's Petition for
 Review was filed, having been blocked by Congressional action.  Such
 action has since expired and the new regulations are now in effect.  The
 validity of the new 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).