21:0380(48)NG - NAGE, Local R14-87 and Army, Kansas Army NG, Topeka, Kans. -- 1986 FLRAdec NG



[ v21 p380 ]
21:0380(48)NG
The decision of the Authority follows:


 21 FLRA No. 48
 
 NATIONAL ASSOCIATION OF
  GOVERNMENT EMPLOYEES, 
 LOCAL R14-87
 Union
 
 and
 
 DEPARTMENT OF THE ARMY, 
 KANSAS ARMY NATIONAL GUARD, 
 TOPEKA, KANSAS
 Agency
 
                                            Case No. 0-NG-874
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    This case is 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 the following Union Proposal.
 
                              Union Proposal
 
          Affected individuals will be returned non-competitively to the
       specific location and position from which they were RIF'ed when
       the position is vacated and being filled.
 
    The proposal was submitted with regard to a Reduction-in-Force (RIF)
 whereby employees were involuntarily reassigned to positions of equal
 grade at different duty stations.
 
                       II.  Positions of the Parties
 
    The Union argues that the proposal constitutes an "appropriate
 arrangement" within the meaning of section 7106(b)(3) of the Statute for
 employees adversely affected by the exercise of management's rights.  It
 refers to 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).
 
    The Agency states that employees covered by the proposal will not be
 adversely affected by any reduction in force (RIF) because they will
 have been placed into positions of equal grade.  The Agency also alleges
 that the proposal is nonnegotiable because it interferes with
 management's right under section 7106(a)(2)(C) to fill positions by
 making selections from any appropriate source.  Finally, the Agency
 alleges that the proposal violates management's right to assign
 employees under section 7106(a)(2)(A) by requiring the reassignment of
 employees.
 
                              III.  Analysis
 
    The Union Proposal would require the Agency to select employees who
 were involuntarily reassigned to a position of equal grade without
 personal cause for return to their former positions at their former duty
 stations if and when such positions are vacant and the Agency makes the
 determination to fill them.  The basic issue in this case is whether the
 proposal constitutes a negotiable appropriate arrangement for employees
 adversely affected by the exercise of management's rights under section
 7106(b)(3) of the Statute.  In National Association of Government
 Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4
 (1986), the Authority stated that henceforth the Authority will
 determine whether a proposal constitutes a negotiable "appropriate
 arrangement" under section 7106(b)(3) of the Statute by determining
 whether the proposal "excessively interferes" with the exercise of
 management's rights.  In making such a determination, the Authority will
 first examine the record in each case to ascertain as a threshold
 question whether a proposal is in fact intended to be an arrangement for
 employees adversely affected by management's exercise of its rights.  If
 the Authority concludes that a proposal is in fact intended as an
 arrangement, the Authority will then determine whether the arrangement
 is appropriate or whether it is inappropriate because it excessively
 interferes.
 
    With regard to the threshold question, the Agency contends that the
 employees subject to the proposal are not adversely affected because
 they were reassigned to positions of equal grade in a different duty
 station.  We disagree.  Employees subject to a RIF in this case could be
 reassigned to any duty station within the State of Kansas.  A change in
 duty station could require an employee to move or could result in a
 significant change of commute.  We find that effect to be sufficient to
 meet the first requirement under section 7106(b)(3).  Therefore, we find
 the proposal to be an "arrangement" for employees adversely affected by
 the exercise of a management right.  According to the Union, the
 proposal is clearly intended to mitigate against an involuntary change
 in an employee's duty station by requiring selection of the employee for
 his or her previous position at his or her prior duty station when it is
 vacant and the Agency decides to fill it.
 
    The issue thus becomes whether the proposal excessively interferes
 with management's right to select individuals to fill positions or
 management's right to assign employees.  In this case it is a question
 of whether the right afforded employees under the proposal to return to
 their previous duty station is outweighed by the effect of the proposal
 on those management rights.  As detailed above, the only effect of the
 proposal is to require management to select for a vacant position the
 employee who would still be in that very position if he or she had not
 been reassigned in a RIF.
 
    In our decision in Kansas Army National Guard we held that a similar
 requirement was not a substantial burden on management when compared to
 the detriment suffered by employees demoted in a RIF and the benefit of
 repromotion conferred by the proposal in that case.  While employees
 covered by the proposal in this case have not been demoted, we conclude
 that the necessity to relocate as a result of a permanent lateral
 involuntary reassignment, perhaps across the State, like a demotion
 causes significant negative impact on affected employees.  See Union
 Statement of Position at 1.  With this proposal, as with the one we
 considered in Kansas Army National Guard, the burden placed by the
 proposal on management's right to select is not so significant as to
 outweigh the disruption to an employee's life caused by assignment to a
 new duty station and the benefit conferred by the proposal of an
 opportunity for the employee to return to his or her former duty
 station.  For the foregoing reasons, we find that the Union's proposal
 does not excessively interfere with management's right, under section
 7106(a)(2)(C), to select individuals to fill vacant positions from any
 appropriate source.
 
    The selection of employees to fill the positions they previously held
 at their former duty stations may entail a reassignment of those
 employees to their former duty station and thus may also have an effect
 upon management's right to assign employees.  However, we find that this
 fact would not change the above analysis in that there would not be any
 different or additional substantive effect, nor would it add to the
 weight of management's practical needs.
 
                              IV.  Conclusion
 
    Having found that the employees involuntarily reassigned by RIF in
 this case were adversely affected by a management decision and that the
 Union Proposal does not excessively interfere with management's rights,
 under sections 7106(a)(2)(A) and (a)(2)(C) to assign employees and to
 fill vacant positions by making selections from any appropriate source,
 we hold that the proposal is an appropriate arrangement under section
 7106(b)(3) and therefore negotiable.
 
                                 V.  Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request, or as
 otherwise agreed to by the parties, bargain concerning the Union
 Proposal.  /*/
 
    Issued, Washington, D.C., April 21, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                                 FOOTNOTES
 
    (*) In deciding that the proposal is negotiable, the Authority mak