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 12 FLRA No. 114
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1650
 Union
 
 and
 
 U.S. FOREST SERVICE, ANGELES
 NATIONAL FOREST
 Agency
 
                                            Case No. O-NG-510
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 concerning the negotiability of two Union proposals.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Article 12.7 (second sentence):
 
          Official (duty) stations will be changed only in conjunction
       with a lateral or promotional reassignment.
 
    Union Proposal 1 is outside the duty to bargain because it interferes
 with management's right under section 7106(a)(2)(A) of the Statute to
 "assign" employees.  See American Federation of Government Employees,
 AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force
 Base, Ohio, 2 FLRA 604, 612, enforced sub nom. Department of Defense v.
 Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert.
 denied sub nom. AFGE v. FLRA, 455 U.S. 945.  Union Proposal 1, by
 restricting a change in an employee's current duty station only to those
 situations involving a lateral or promotional reassignment, effectively
 prohibits the Agency from assigning an employee to a lower graded
 position at another duty station.  Consequently, since Union Proposal 1
 would, in certain circumstances, prevent management from exercising its
 right under 7106(a)(2)(A) to "assign" employees, it is outside the duty
 to bargain.  See American Federation of Government Employees, AFL-CIO,
 Social Security Local No. 1760 and Department of Health and Human
 Services, Social Security Administration, 9 FLRA No. 103 (1982) (Union
 Proposal 1).
 
                             Union Proposal 2
 
          Article 22.1
 
          The need to work employees beyond guaranteed tours is
       determined by programs to be accomplished and available financing.
        These decisions must be based on sound judgment and result from
       the application of fair and equitable procedures.  Such decisions
       will be free of personal favoritism.  Management agrees to attempt
       to work all WAE employees for as many of non-guaranteed pay
       periods as available financing will allow providing that the
       employee is qualified for the position for which there is
       financing and providing that the employee does not request
       otherwise.  (The underlined portion of the proposal is in
       dispute.)
 
    The "WAE" employees who are the subject of this proposal are
 typically guaranteed 13, 18 or 25 pay periods of full-time employment
 per year by the Agency.  For the balance of the year, these employees
 may be recalled to work when needed.  In agreement with the Agency, the
 Authority finds that the disputed portion of Union Proposal 2 concerns
 the numbers, types and grades of employees or positions assigned, and
 thus, under section 7106(b)(1) of the Statute, is negotiable only at the
 election of the Agency.  That is, management would be obligated to
 attempt to recall WAE employees whenever funding was available
 irrespective of whether management had decided to accomplish the work
 without using WAE employees, or even regardless of whether management
 had decided not to do the work at all.  Consequently, since the Agency
 has elected not to bargain on the disputed portion of Union Proposal 2,
 that portion is outside the duty to bargain.  See American Federation of
 Government Employees, AFL-CIO and Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), (Proposal X),
 enforced as to other matters sub nom. Department of Defense v. Federal
 Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied
 sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  Issued, Washington, D.C., August 16, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Agency's contention that the petition should be dismissed as
 untimely filed cannot be sustained.  The Agency first asserts that the
 Union was "apprised" that the proposals were considered nonnegotiable on
 a date which would have made the petition untimely under section 2424.3
 of the Authority's Rules and Regulations.  However it appears that the
 Agency's allegation was orally communicated to the Union, while section
 2424.3 states that the time limit begins to run from the date an
 agency's allegation is served in writing upon a union.  See American
 Federation of Government Employees, AFL-CIO, Local 3385 and Federal Home
 Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA No. 58 (1981).
 The Agency also contends that the petition is defective because it was
 filed in response to an unrequested written allegation of
 nonnegotiability.  It is well established that a union may properly
 consider an unsolicited written allegation of nonnegotiability by an
 agency to be an allegation within the meaning of section 2424.3 for the
 purpose of initiating an appeal to the Authority.  See, e.g.,
 International Brotherhood of Electrical Workers, AFL-CIO, Local 121 and
 Department of the Treasury, Bureau of Engraving and Printing,
 Washington, D.C., 10 FLRA No. 39 (1982).  In this case, the Union filed
 its appeal of the unrequested allegation from the Agency with the
 Authority within the time limits prescribed by sections 2424.3 and
 2429.21 of the Authority's Rules and Regulations.  As to the final
 assertion that the petition is somehow improper because "the conduct of
 the (U)nion reasonably led management to believe the Union agreed with
 the nonnegotiability determinations," as noted above, the Union complied
 with established filing requirements, and neither the Statute nor the
 Authority's Rules and Regulations provide for dismissal of a petition on
 this basis. 
 
 
 

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