15:0254(49)NG - NFFE Local 29 and Army, Kansas City District, Corps of Engineers, Kansas City, MO -- 1984 FLRAdec NG

 15 FLRA No. 49
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 29
 Union
 
 and
 
 DEPARTMENT OF THE ARMY,
 KANSAS CITY DISTRICT,
 CORPS OF ENGINEERS,
 KANSAS CITY, MISSOURI
 Agency
 
                                            Case No. O-NG-672
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    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 raises a question
 concerning the negotiability of the following Union proposals:
 
          Management Initiated/Directed Reassignments
 
          Section 1.  Management may initiate or direct a reassignment of
       any employee, with the employee's written consent;  in the absence
       of the employee's written consent, the following procedure shall
       be followed:
 
          (a) An employee who management proposes to initiate or direct
       to be reassigned is entitled to -
 
          (1) At least 30 days advance written notice, stating in detail
       the specific reasons of the imposing action (sic).
 
          (2) A reasonable time, but not less than 7 working days, to
       answer orally and in writing and to furnish affidavits and other
       documents to support his/her response.
 
          (3) Be represented by a representative.
 
          (4) A written decision and the specific detailed reasons
       therefor, at the earliest practicable date.
 
          (5) Copies of all material used to support the proposal and
       decision.
 
          (b) Management must utilize the procedures of 5 Cfr part 351,
       if the reassignment would require releasing or changing the
       employee's competitive level or if the reassignment would be
       outside the employee's local commuting area.
 
    (The underscored portion of the proposal is in dispute.)
 
    Upon careful consideration of the entire record, including the
 parties' contentions, /1/ the Authority makes the following
 determinations.  The Union's proposal would require management to apply
 the reduction-in-force (RIF) procedures prescribed by part 351 of title
 5, Code of Federal Regulations to accomplish certain reassignments not
 involving a RIF.
 
    In agreement with the Agency, the Authority concludes that this
 proposal violates the Agency's right, pursuant to section 7106(a)(2)(A)
 of the Statute, to assign employees.  In this regard, it is well settled
 that this right includes the discretion to determine which employee will
 be assigned.  American Federation of Government Employees, AFL-CIO and
 Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2
 FLRA 604, 613 (1980), 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 (1982).  The disputed proposal
 herein, however, effectively divests the Agency of such discretion.
 
    Specifically, application of the cited RIF regulations as proposed
 would determine which employees are to be reassigned based on which ones
 have the lowest "retention standing." Under the RIF regulations the
 relative retention standing of competing employees results from a
 comparison of such non-job related factors as each employee's tenure,
 i.e., whether an employee is in a probationary or permanent status, each
 employee's entitlement to veterans preference, and each employee's
 seniority.  /2/
 
    Thus, the use of the procedures set forth in the RIF regulations as
 required by the proposal could result in the reassignment of an employee
 other than the one identified by management if the latter employee had a
 higher retention standing than others in the same competitive level.
 Therefore, because the proposal would, in certain circumstances, prevent
 the Agency from determining which employees to reassign and, indeed,
 would dictate employee selection based on criteria not wholly related to
 the job to be filled, it is inconsistent with the right, pursuant to
 section 7106(a)(2)(A) of the Statute, to assign employees and is not
 within the duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., July 10, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union's motion that the Agency's Statement of Position be
 dismissed as being untimely filed cannot be sustained.  The record in
 this case indicates that the Agency filed its statement with the
 Authority within the time limits prescribed by section 2424.6 and
 2429.21 of the Authority's Rules and Regulations.
 
 
    /2/ See 5 CFR 351.401 (1984)