[ v21 p905 ]
21:0905(105)NG
The decision of the Authority follows:
21 FLRA No. 105
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-87
Union
and
DEPARTMENT OF THE ARMY,
KANSAS ARMY NATIONAL GUARD
Agency
Case No. 0-NG-879
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority becuase of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of two Union proposals involving bargaining unit employees
who are transferred to different duty stations within the state of
Kansas as the result of a reduction-in-force (RIF),
II. Union Proposal 1
Individuals affected will be furnished transportation and
travel expenses until such time as they elect to move their
families permanently.
A. Positions of the Parties
The Agency contends that this proposal would require employees to be
reimbursed for commuting expenses and, thus, is inconsistent with 5
U.S.C. Section 5704. In support, the Agency relies on the Authority's
decision in National Treasury Employees Union and Department of
Treasury, Internal Revenue Service, 9 FLRA 726 (1982).
The Union argues that the case relied upon by the Agency concerns
employees' commuting expenses from their residences to their regular
place of employment and is not applicable to employees being transferred
from one part of Kansas to another as a result of a RIF. Finally, the
Union argues that, by requiring a transferred employee to be reimbursed
for travel and transportation expenses for a reasonable period of time
until such employee permanently moves to the new job location, the
proposal is an attempt to alleviate the impact of a RIF.
B. Analysis
Under 5 U.S.C. Section 5721 et seq. and Chapter 2 of the Federal
Travel Regulations (FTR, an employee transferred to a new duty station
generally is entitled to reimbursement for certain travel and relocation
expenses incurred as a result of the transfer. However, there is no
indication in the record that the Union intends this proposal to cover
any travel or relocation expenses for which reimbursements is authorized
under law and the FTR. Rather, the Union tacitly agrees with the Agency
that the proposal would require transferred employees to be reimbursed
for their commuting expenses, that is, their daily mileage expenses from
their permanent residence to their regular, albeit new, duty station
until such time as they move their residence to the new duty location.
Thus, notwithstanding the Union's claim that reimbursement for such
expenses is an attempt to alleviate the impact of a RIF, it is well
settled that reimbursement for such expenses is inconsistent with 5
U.S.C. Section 5704. Internal Revenue Service, 9 FLRA 726 (1982).
C. Conclusion
Based on the rationale in Internal Revenue Service, the Authority
finds Proposal 1 to be inconstitent with law and therefore, outside the
duty to bargain under section 7117(a)(1) of the Statute.
III. Union Proposal 2
Should vacancies arise in an individual's original vicinity
which are the same grade or representative rate or lower, after an
individual has accepted a position at the MATES (new duty
station), SPMO (management) will unofficially offer the position
to the individual concerned. If the individual indicates he will
accept the offer, an official offer will be made. If he indicates
he does not want the position, an official offer will not be made.
These unofficial offers will be in accordance with past practice.
A. Positions of the Parties
The Agency alleges the underlined portion of this proposal, by
requiring the selection of a particular employee for a position,
interferes with management's right under section 7106(a)(1)(A) to assign
employees and with management's right under section 7106(a)(2)(C) to
fill positions by making selections from any appropriate source.
The Union contends that the disputed portion of the proposal merely
attempts to alleviate hardship caused by a RIF. In support, the Union
cites the decision of the U.S. Court of Appeals for the District of
Columbia circuit in American Federation of Government Employees, Local
2782 v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir.
1983), reversing and remanding American Federation of Government
Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the
Census, Washington, D.C., 7 FLRA 91 (1981).
B. Analysis
The Authority has held that where an agency alleges a union's
proposal of an appropriate arrangement is nonnegotiable because it
conflicts with management rights described in section 7106(a) or (b)(1),
the Authority will consider whether such an arrangement is appropriate
for negotiation within the meaning of section 7106(b)(3) or, whether it
is inappropriate because it excessively interferes with the exercise of
management's rights. National Association of Government Employees,
Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986).
Proposal 2 applies to National Guard technicians transferred, without
personal cause, as the result of a RIF to a different duty station
within the state of Kansas. National Guard technicians must possess not
only the civilian qualifications required for the positions they hold
but also the compatible military grade. See 32 U.S.C. Section 709(b).
There is nothing in the record to indicate that, under this proposal,
management could elect not to fill a vacant position. That is, if a
position were to become vacant at the former duty station for any
reason, including an Agency decision to abolish the position, management
would still be required by this proposal to offer it to a transferred
employee. In addition, there is nothing in the record to indicate that
management would be able to make qualifications determinations,
including determining whether a technician employee holds the compatible
military grade for the vacancy arising at the original duty station.
Thus, Proposal 2 is distinguishable from the proposal found to be an
appropriate arrangement within the meaning of section 7106 (b)(3) of the
Statute in National Association of Government Employees, Local R-14-87
and Department of the Army, Kansas Army National Guard, Topeka, Kansas,
21 FLRA NO. 48 (1986). The proposal in the Topeka case required
management to return employees to their former positions at their former
duty station only if and when such positions were vacant and only then
if the agency decided to fill them. No question was raised in that case
as to whether the employees possessed the requisite qualifications for
the vacant positions since the employees in question were merely
returning to positions they would still occupy but for their
reassignments as a result of a RIF. Further, that proposal specifically
preserved the agency's right to elect to fill or not fill vacant
positions. Unlike the proposal in Kansas Army National Guard, Topeka,
Proposal 2 would absolutely eliminate the Agency's discretion concerning
filling the vacancies involved. Thus, the proposal would constitute an
excessive interference with management's right to assign employees under
section 7106(a)(2)(A) of the Statute and with management's right under
section 7106(a)(2) (C) of the Statute to make selections for vacancies.
C. Conclusion
Because Proposal 2 excessively interferes with management's rights it
does not constitute an appropriate arrangement within the meaning of
section 7106 (b)(3) of the Statute.
IV. Order
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., May 20, 1986.
/s/Jerry L. Calhoun, Chairman
/s/Henry B. Frazier, III, Member
FEDERAL LABOR RELATIONS AUTHORITY