09:0825(108)NG - AFGE Council 236 and GSA -- 1982 FLRAdec NG

 9 FLRA No. 108
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, COUNCIL 236
 Union
 
 and
 
 GENERAL SERVICES ADMINISTRATION
 Agency
 
                                            Case No. O-NG-496
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).
 THE ISSUES PRESENTED ARE THE NEGOTIABILITY OF THREE UNION PROPOSALS.
 /1/
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 THE RECORD REVEALS THAT THE UNION HEREIN REPRESENTS EMPLOYEES CURRENTLY
 LOCATED IN THE HEADQUARTERS, NATIONAL ARCHIVES AND RECORDS SERVICE WHO
 HAVE BEEN IDENTIFIED WITH A FUNCTION TO BE TRANSFERRED TO THE NATIONAL
 CAPITAL REGION OF THE GENERAL SERVICES ADMINISTRATION.  IT IS UNDISPUTED
 ON THE RECORD THAT THE ORGANIZATIONAL ELEMENT TO WHICH THE EMPLOYEES
 WILL BE REASSIGNED IS REPRESENTED BY A LOCAL OF THE NATIONAL FEDERATION
 OF FEDERAL EMPLOYEES.  IT IS THIS TRANSFER OF FUNCTION WHICH GAVE RISE
 TO THE INSTANT PROPOSALS.
 
                             UNION PROPOSAL 1
 
    THE NUMBER AND GRADE OF POSITIONS TO BE TRANSFERRED ARE NEGOTIABLE.
 
    SECTION 7106(B)(1) OF THE STATUTE RENDERS, "THE NUMBER, TYPES, AND
 GRADES OF EMPLOYEES OR POSITIONS ASSIGNED TO ANY ORGANIZATION
 SUBDIVISION" NEGOTIABLE AT THE ELECTION OF THE AGENCY.  NATIONAL
 TREASURY EMPLOYEES UNION CHAPTER 66 AND INTERNAL REVENUE SERVICE, KANSAS
 CITY SERVICE CENTER, 1 FLRA 927(1979).  UNION PROPOSAL 1 WOULD REQUIRE
 THE AGENCY TO ELECT, CONTRACTUALLY, TO NEGOTIATE THE NUMBERS AND GRADES
 OF EMPLOYEES WHO WILL REMAIN IN THEIR PRESENT ORGANIZATION AND OF THOSE
 WHO WILL RELOCATE TO ANOTHER SUBDIVISION OF THE AGENCY.  AS BARGAINING
 ON SUCH MATTERS MAY BE UNDERTAKEN ONLY AT THE AGENCY'S ELECTION, THE
 ELECTION ITSELF IS, A FORTIORI, NOT WITHIN THE DUTY TO BARGAIN.  THE
 AGENCY HEREIN HAS ELECTED NOT TO ENGAGE IN, SUCH NEGOTIATIONS.
 CONSEQUENTLY UNION PROPOSAL 1 MUST BE HELD TO BE OUTSIDE THE DUTY TO
 BARGAIN.
 
                             UNION PROPOSAL 2
 
    ALL EMPLOYEES TRANSFERRED WILL BE GUARANTEED THAT THERE ARE
 SUFFICIENT FUNDS AVAILABLE TO
 
    PAY THEM FOR AT LEAST FIVE YEARS.
 
    THE UNION STATES THAT THIS PROPOSAL IS INTENDED TO PROVIDE AN
 "APPROPRIATE ARRANGEMENT" UNDER SECTION 7106(B)(3) OF THE STATUTE FOR
 EMPLOYEES ADVERSELY AFFECTED BY THE EXERCISE OF MANAGEMENT RIGHTS, I.E.,
 THE REASSIGNMENTS OF EMPLOYEES IN CONNECTION WITH A TRANSFER OF
 FUNCTION.  TO THIS END, THE LANGUAGE OF THE PROPOSAL, AS CONFIRMED BY
 THE UNION'S STATEMENT AS TO ITS INTENDED MEANING, WOULD REQUIRE THE
 AGENCY TO GUARANTEE THE EMPLOYMENT SECURITY FOR FIVE YEARS OF ALL
 EMPLOYEES TRANSFERRED.  THUS, THE PROPOSAL, IN EFFECT, WOULD REQUIRE
 AGENCY TO AGREE NOT TO LAYOFF ANY OF THE AFFECTED EMPLOYEES FOR FIVE
 YEARS.  SECTION 7106(A)(2)(A), HOWEVER, EXPLICITY RESERVES TO MANAGEMENT
 THE RIGHT TO "LAYOFF" EMPLOYEES.  HENCE, THE ARRANGEMENT PROPOSED BY THE
 UNION IS DIRECTLY CONTRARY TO THE STATUTORY RIGHT OF THE AGENCY AND
 WOULD PREVENT THE AGENCY FROM ACTING AT ALL TO LAYOFF THE EMPLOYEES
 COVERED BY THE PROPOSAL.  /2/ ACCORDINGLY, IT IS OUTSIDE THE DUTY TO
 BARGAIN.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT
 DIX, NEW JERSEY, 2 FLRA 153(1979), 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, U.S.  ---, 102 S.CT. 1443
 (1982).
 
                             UNION PROPOSAL 3
 
    ALL EMPLOYEES TRANSFERRED WILL BE GUARANTEED THAT THEY WILL SUFFER NO
 FINANCIAL LOSS DUE TO
 
    INCREASED COMMUTING TRANSPORTATION COST (I.E. HIGHER PARKING FEES,
 LONGER COMMUTES, REMOVAL OF
 
    ABILITY TO RIDE PUBLIC TRANSPORTATION OR PARTICIPATE IN
 CAR/VANPOOLS).
 
    UNION PROPOSAL 3, IN EFFECT, WOULD OBLIGATE THE AGENCY TO REIMBURSE
 EMPLOYEES FOR FINANCIAL LOSS CAUSED BY ADDITIONAL COMMUTING COSTS
 RESULTING FROM REASSIGNMENTS.  IN AGREEMENT WITH THE AGENCY, THE
 AUTHORITY FINDS THIS PROPOSAL IN "INCONSISTENT WITH . . . FEDERAL LAW"
 AND THEREFORE NONNEGOTIABLE PURSUANT TO SECTION 7117 OF THE STATUTE.
 REIMBURSEMENTS FOR TRAVEL EXPENSES ARE GOVERNED BY 5 U.S.C. 5704(1980)
 WHICH PROVIDES THAT FEDERAL EMPLOYEES ARE ENTITLED TO REIMBURSEMENT FOR
 MILEAGE ONLY IF THEY ARE "ENGAGED ON OFFICIAL BUSINESS FOR THE
 GOVERNMENT." WITH CERTAIN EXCEPTIONS NOT PRESENT IN THE INSTANT CASE,
 /3/ IT IS WELL ESTABLISHED THAT COMMUTING DOES NOT CONSTITUTE "OFFICIAL
 BUSINESS FOR THE GOVERNMENT." /4/ THUS, IN NATIONAL TREASURY EMPLOYEES
 UNION AND DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, 9 FLRA NO.
 88 (1982), THE AUTHORITY HELD NONNEGOTIABLE A PROPOSAL TO REIMBURSE
 EMPLOYEES FOR CERTAIN COMMUTING EXPENSES, NOTING THAT SUCH EXPENSES ARE
 PERSONAL TO EMPLOYEES AND MAY NOT BE CONSIDERED AS INCURRED IN OFFICIAL
 TRAVEL.  THEREFORE, THE AUTHORITY CONCLUDED THAT, CONSISTENT WITH
 FEDERAL LAW, THE COST OF TRAVEL BETWEEN THEIR RESIDENCES AND OFFICIAL
 DUTY STATIONS MUST BE BORNE BY THE EMPLOYEES.  FOR THE REASONS SET FORTH
 IN DETAIL IN THAT DECISION, THE INSTANT PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN.  /5/
 
    ACCORDINGLY, FOR THE REASONS STATED, PURSUANT TO SECTION 2424.10 OF
 THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
 ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND IT HEREBY IS,
 DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 5, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE APPEAL, AS ORIGINALLY FILED, INVOLVED SEVEN UNION PROPOSALS.
 SUBSEQUENTLY, AS IT APPEARS FROM THE UNION'S RESPONSE TO THE AGENCY'S
 STATEMENT OF POSITION, THE PARTIES REACHED AGREEMENT ON FOUR OF THOSE
 PROPOSALS (PROPOSALS DESIGNATED 3, 6, 7 AND 10).  THE UNION ACCORDINGLY
 SOUGHT, AND IS HEREBY GRANTED, PERMISSION TO WITHDRAW ITS APPEAL
 CONCERNING THOSE PROPOSALS.
 
    /2/ IN VIEW OF THE DISPOSITION OF THE PROPOSAL, THE AUTHORITY FINDS
 IT UNNECESSARY TO RULE ON THE AGENCY'S CONTENTION THAT THE PROPOSAL
 CONCERNS MATTERS WITH RESPECT TO THE AGENCY'S BUDGET THAT ARE OUTSIDE
 THE DUTY TO BARGAIN.
 
    /3/ SEE, E.G., MATTER OF DEPARTMENT OF AGRICULTURE MEAT GRADERS,
 COMPTROLLER GENERAL DECISION B-131810 (JANUARY 3, 1978);  36 COMP.GEN.
 450, 453(1956);  55 COMP.GEN.  1323, 1328(1976).
 
    /4/ SEE, E.G., MATTER OF CARL P. MAYER, COMPTROLLER GENERAL DECISION
 B-171969.42 (JANUARY 9, 1976);  MATTER OF JOHN B. CLYDE, COMPTROLLER
 GENERAL DECISION B-195421 (FEBRUARY 21, 1980);  36 COMP.GEN. 450,
 452-3(1956);  55 COMP.GEN. 1323, 1327(1976).
 
    /5/ IN VIEW OF THIS DISPOSITION OF THE CASE, THE AUTHORITY FINDS IT
 UNNECESSARY TO REACH THE QUESTION OF WHETHER THE UNION'S PROPOSAL IS
 ALSO INCONSISTENT WITH ANY GOVERNMENT-WIDE RULE OR REGULATION AS THE
 AGENCY CONTENDS.