21:0905(105)NG - NAGE, Local R14-87 and Dept. of the Army, Kansas Army NG -- 1986 FLRAdec NG
[ v21 p905 ]
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'