[ v12 p611 ]
The decision of the Authority follows:
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.