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47 FLRA No. 102

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND TECHNICAL ENGINEERS

(Union)

and

U.S. DEPARTMENT OF THE NAVY

MARINE CORPS SECURITY FORCE BATTALION

PACIFIC

(Activity)

0-NG-2123

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

June 30, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns a single proposal that establishes a competitive area for reduction-in-force (RIF) purposes. The Department of the Navy (Agency) filed a statement of position and the Union filed a reply brief. For the reasons that follow, we find that the proposal is nonnegotiable.

II. Background

The Union represents, and offers the disputed proposal on behalf of, a bargaining unit composed of employees in the Marine Corps Security Force Battalion, Pacific (the Activity) at Mare Island, California. In addition, the Union represents employees at two other organizational entities located at Mare Island: (1) the Naval Command, Control and Ocean Surveillance Center, In Service Engineering, West Coast Division; and (2) the Mare Island Naval Shipyard (the Shipyard). The Union is one of three national labor organizations with bargaining units in the Shipyard.

III. Proposal

Competitive Area a. The competitive area of the RIF shall be all commands at Mare Island represented by IFPTE Local 11.

A. Positions of the Parties

The Agency contends that the proposal is nonnegotiable under the court's decision in United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point). The Agency states:

we have several activities, multiple bargaining units and unrepresented supervisory personnel. The [U]nion proposes a competitive area embracing all. Clearly, this delineation intrudes upon the bargaining rights of other exclusive representatives and establishes the conditions of employment of employees (supervisors), whom the [U]nion does not represent.

Statement of Position at 6.

The Agency also asserts that the proposal can be interpreted as establishing a competitive area restricted to bargaining unit positions in units represented by the Union. In the Agency's view, under this interpretation, the proposal is inconsistent with 5 C.F.R. § 351.402(b).⁽¹⁾

The Union contends that the proposal is an appropriate arrangement, within the meaning of section 7106(b)(3) of the Statute, for employees who are adversely affected by management's exercise of its right to conduct a RIF. In this regard, the Union asserts that it "is merely attempting to afford these bargaining unit employees [in the Activity] their only chance to retain employment on Mare Island by extending their bump and retreat rights to activities at Mare Island represented by the Union." Reply Brief at 2 (emphasis in original). The Union also argues that the proposal "vitally affects the working conditions of unit employees" and is consistent with applicable laws and regulations. Id.

B. Analysis and Conclusions

Competitive areas are the organizational and geographic boundaries within which employees compete for job retention in a RIF. With certain exceptions inapplicable here, competitive areas must comply with 5 C.F.R. § 351.402, a Government-wide regulation issued by the Office of Personnel Management. See, for example, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 44 FLRA 18, 26 (1992) (NWS), petition for review filed sub nom. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland v. FLRA, No. 92-1171 (D.C. Cir. Apr. 17, 1992). As relevant here, 5 C.F.R. § 351.402(b) provides that a competitive area may be defined only in terms of "an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined." Put differently, to comply with 5 C.F.R. § 351.402(b), a competitive area must include all employees, both unit and nonunit, who are within the organizational and geographic boundaries of the competitive area. See NWS, 44 FLRA at 27.

It is unclear from the record before us precisely what competitive area the Union intends to establish by the disputed proposal. In particular, we find that the plain wording of the proposal, and the Union's somewhat inconsistent statements of intent, support two different interpretations of the proposal. We have dismissed other petitions for review where the meaning of a proposal is not clear. For example, National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 770 (1992). In this case, however, we conclude that, under either interpretation, the proposal is nonnegotiable.

The proposal, by its plain terms, establishes a competitive area composed of "all commands at Mare Island represented by [the Union]." The Union states, in this connection, that the proposal is intended to benefit affected employees by extending their "bump and retreat rights to activities at Mare Island represented by the Union." Reply Brief at 2. It appears from these Union statements that the proposed competitive area may be intended to encompass all positions, unit and nonunit, in the three organizational entities at Mare Island where the Union holds exclusive recognition. It is undisputed, in this connection, that there are five bargaining units at the Shipyard and that the Union represents employees in only one of those units.⁽²⁾ Thus, under this interpretation of the proposal, the proposed competitive area would include not only the unit employees represented by the Union but also, among others, employees represented by other labor organizations in other units.

In Cherry Point, the court noted "the fundamental principle that a union is the exclusive representative of employees in the . . . recognized unit, and those employees only." 952 F.2d at 1442 (emphasis in original). Consistent with this principle, the court held, as relevant here, that a union may not seek to "regulate the conditions of employment of . . . employees in other bargaining units." Id. at 1443. According to the court, "[s]uch bargaining proposals are impermissible" under the Statute. Id.

The proposal in this case, as interpreted to establish a competitive area including, among others, employees in other bargaining units, clearly would regulate the conditions of employment of such employees. That is, the proposal would determine with whom those employees would compete for retention in a RIF. Accordingly, for the reasons stated in Cherry Point, the proposal is nonnegotiable. Compare NWS, 44 FLRA at 29 (Authority dismissed portion of disputed proposal because record did not disclose whether that portion would establish a competitive area encompassing employees in other bargaining units).

The Union also states that the proposal would allow affected employees "to bump or retreat to positions in other bargaining units represented by [the Union] . . . ." Reply Brief at 2. Consistent with this statement, it appears that the proposal could be intended to encompass only those positions in the bargaining units represented by the Union. However, establishing a competitive area that consists only of bargaining unit positions is "clearly prohibited" by 5 C.F.R. § 351.402(b). U.S. Merit Systems Protection Board v. FLRA, 913 F.2d 976, 980 (D.C. Cir. 1990). Construed in this manner, as the proposal is inconsistent with a Government-wide regulation, it is nonnegotiable under section 7117(a)(1) of the Statute.

In sum, under the first interpretation of the proposal, the proposal is nonnegotiable as an attempt to regulate conditions of employment of employees in bargaining units other than those represented by the Union. Under the second interpretation, the proposal is nonnegotiable under section 7117(a)(1) of the Statute as inconsistent with a Government-wide regulation. Moreover, it is unnecessary to address whether, under either interpretation, the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Authority does not consider whether a proposal constitutes an appropriate arrangement when the proposal is nonnegotiable under section 7117(a)(1) or other provisions of the Statute and not under section 7106. See, for example, National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater System Center, Newport, Rhode Island, 42 FLRA 730, 756 (1991).

IV. Order

The petition for review is dismissed.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. 5 C.F.R. § 351.402(b) provides, in pertinent part:

In the field, the minimum competitive area is an activity under separate administration within the local commuting area. A competitive area must be defined 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.

2. The record, insofar as it addresses the matter, supports the conclusion that the Shipyard constitutes a separate competitive area. The Union explains that a reason for proposing an enlarged competitive area is that "[t]wo of the three employees involved in the RIF are former Mare Island Naval Shipyard employees (the largest command on the island), and, as such, would have potential bump and retreat rights to those positions." Petition for Review at 1. Were the Activity in the same competitive area with the Shipyard, the affected employees would already have those rights.

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