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52 FLRA No. 33

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-45

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE COMMISSARY AGENCY

CENTRAL REGION

(Agency)

0-NG-2327

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

September 30, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.⁽¹⁾

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, which establishes a "minimum" competitive area for reduction in force (RIF) purposes. For the reasons that follow, we find that the proposal is outside the duty to bargain under section 7117 of the Statute. Accordingly, we dismiss the petition for review.

II. The Proposal

As a minimum the competitive area will include all of the bargaining unit.

III. Positions of the Parties

A. Agency

The Agency argues that the proposal is inconsistent with 5 C.F.R. § 351.402, which, as relevant here, provides that the minimum competitive area in "the field" is an activity under separate administration.⁽²⁾ According to the Agency, there currently are separate competitive areas for each commissary store where unit employees are represented by the Union.⁽³⁾ The Agency states that the proposal would cause "employees at commissary stores that are not involved in a [RIF] to be affected by a [RIF] being conducted at a commissary store in another location." Statement of Position at 2. The Agency also states that, if the proposal is intended to include only bargaining unit employees in the proposed competitive area, it is inconsistent with 5 C.F.R. § 351.402 because it would not define the competitive area "solely in terms of the Agency's organizational unit and geographic location." Id. at 3.

In addition, according to the Agency, because a competitive area "must include all employees, the union's proposal would affect nonbargaining unit members at other store locations." Id. at 2. The Agency argues that, consistent with the Authority's decision in OPM, a proposal, such as the one in this case, that directly affects individuals outside the union's bargaining unit, is outside the duty to bargain on that ground.

B. Union

The Union asserts that the intent of the proposal is to "have the competitive area for a [RIF] consistent with" the parameters of its bargaining unit. Petition for Review at 1. The Union claims that the proposal would not prevent the Agency from including supervisors, or other nonunit employees, in the proposed competitive area. According to the Union, the proposal would protect unit employees from "Agency manipulated [RIF] actions designed to pin point for RIF or protect from RIF individual employees." Reply Brief at 2. The Union asserts that the proposal "is not intended to directly affect supervisors or other non[]unit personnel[]" and that, in any event, positions of unit employees, not those of nonunit employees, are being abolished. Id. at 6.

IV. Analysis and Conclusions

Based on the wording of the proposal and the Union's explanation of it, the proposal would establish a competitive area that consisted of at least all bargaining unit employees. As the Union's bargaining unit encompasses several commissary stores, the proposed competitive area would include unit employees in all those stores. However, nothing in the plain wording of the proposal, or the Union's explanation, supports a conclusion that the proposed competitive area would encompass only unit employees. In this regard, the Union clearly states that the proposal would not prevent the Agency from including in the proposed area any nonunit employees; as that statement is consistent with the plain wording of the proposal, it is adopted for the 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).

Based on the foregoing interpretation of the proposal, we reject the Agency's argument that the proposal is inconsistent with 5 C.F.R. § 351.402 because it would establish a competitive area limited to unit employees. The proposal would not prevent the Agency from including unit and nonunit employees in the proposed competitive area. In addition, the Agency offers no reason that the portion of the regulation specifying the "minimum" competitive area in "the field" prevents establishment of a competitive area larger than the minimum. Accordingly, the proposal is not inconsistent with the regulation on the ground that it would establish a competitive area larger than the minimum.

Having determined that the proposal is consistent with 5 C.F.R. § 351.402 because, as relevant here, it would not prevent inclusion of both unit and nonunit employees within the minimum competitive area it establishes, we must also conclude that the proposal is outside the duty to bargain because it directly implicates the conditions of employment of supervisory and managerial personnel. In this regard, the proposal does not expressly require the Agency to include within its "minimum" competitive area both unit and nonunit employees. However, the Agency could not implement the proposal consistent with 5 C.F.R. § 351.402 unless it included both unit and nonunit employees within the competitive area. That is, under the regulation, the Agency is required to include unit and nonunit employees in any competitive area. Accordingly, having found the proposal consistent with the regulation, we must also interpret the proposal as requiring the Agency to include within the competitive area encompassed by the proposal both unit and nonunit employees. As such, and as relevant here, all supervisory and managerial personnel within commissary stores included in the Union's bargaining unit would be included in the proposed competitive area.

In OPM, the Authority found that a proposal establishing competitive areas that included supervisory and management personnel was outside the obligation to bargain. For the reasons fully explained in OPM, the Authority concluded that a proposal directly implicating the working conditions of supervisory and managerial personnel -- including their competitive areas for RIF purposes -- is outside the duty to bargain whether or not the union offering the proposal intends that result and whether or not such result is necessary in order for the proposal to be found consistent with 5 C.F.R. § 351.402. 51 FLRA at 510-13.

Consistent with the foregoing construction of the proposal, we find that it would determine competitive areas for not only unit but also nonunit employees, including supervisory and management personnel. Accordingly, for the reasons stated in OPM, we conclude that the proposal is outside the obligation to bargain. Therefore, we dismiss the petition for review.

V. Order

The Union's petition for review is dismissed.

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

1. Member Wasserman did not participate in the resolution of this case, which relies on 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 filed, No. 95-1593 (D.C. Cir. Dec. 1, 1995), a decision that issued before he joined the Authority and is currently pending judicial review.

2. As relevant here, 5 C.F.R. § 351.402 provides:

(a) Each agency shall establish competitive areas in which employees compete for retention under this part.

(b) A competitive area may consist of all or part of an agency. . . . 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.

3. The bargaining unit represented by the Union encompasses employees at commissary stores in Fort Eustis, Fort Monroe, Fort Story, Langley Air Force Base, Yorktown, Norfolk, Little Creek, Portsmouth, and Oceana, Virginia. Attachment to Union's Petition for Review.

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