[ v19 p494 ]
The decision of the Authority follows:
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 During the pendency of the instant case the OPM regulations cited above defining a competitive area were superceded by new Government-wide OPM regulations, set out at 5 CFR 351.402(b) (1984).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).