16:0075(18)NG - NFFE Local 29 and Army, Corps of Engineers, Kansas City District, Kansas City, MO -- 1984 FLRAdec NG

 16 FLRA No. 18
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 29
 Union
 
 and
 
 DEPARTMENT OF THE ARMY,
 U.S. ARMY CORPS OF ENGINEERS,
 KANSAS CITY DISTRICT,
 KANSAS CITY, MISSOURI
 Agency
 
                                            Case No. O-NG-689
 
                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 the two Union proposals.  /1/ Upon
 careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.  /2/
 
                             Union Proposal 1
 
          Management Initiated/Directed Reassignment
 
          Section 1.  When management (Employer) determines it is
       necessary to reassign employees due to a staffing imbalance, lack
       of work, shortage of funds, reorganization, or other reasons, the
       Employer will first ask for volunteers from among the qualified
       employees within that competitive area and level.  If there are
       too many volunteers, the employees with the greatest retention
       standing will be given the reassignment.  If there are two few or
       no volunteers, the employees with the least retention standing
       shall be given the reassignment.
 
    Union Proposal 1 would require that selection for reassignments be
 based on retention standing.  That is, where proposed reassignments
 attracted a strong degree of volunteer interest, the volunteers with the
 greatest retention standing would be reassigned, but where little or no
 volunteer interest was evidenced, the employees with the least retention
 standing would be reassigned.  In this respect, Union Proposal 1 is to
 the same effect as Union Proposals IV through VI in American Federation
 of Government Employees, AFL-CIO and Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 610-13 (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).  In the cited case, the Authority found
 the three proposals, requiring that selections for assignments to other
 positions be based on seniority, to be inconsistent with the management
 right, pursuant to section 7106(a)(2)(A) of the Statute, to assign
 employees, because the proposals divested management of the discretion
 to designate which particular employee would be reassigned.  /3/
 
    Contrary to the Union's contention, Union Proposal 1 is not identical
 in coverage and effect to Union Proposal IV in National Treasury
 Employees Union and Department of The Treasury, Internal Revenue
 Service, 6 FLRA 508 (1981), which the Authority held to be within the
 duty to bargain.  The cited proposal in the Internal Revenue Service
 case dealt exclusively with the reassignment of employees from one
 location to another without an accompanying change in duties performed.
 While Union Proposal 1, herein, addresses staffing imbalances, it is
 also concerned with other causes for reassignment which would result in
 changes in the work performed by the affected employees.  /4/ Because
 Union Proposal 1 would govern reassignments to positions with duties
 different from those previously performed, it is distinguishable from
 Union Proposal IV in Internal Revenue Service.  Hence, for the reasons
 stated in Air Force Logistics Command, Union Proposal 1 is not within
 the duty to bargain.
 
                             Union Proposal 2
 
          Section 3.
 
          The following definition(s) shall apply:
 
          Competitive Area:  The geographic area that usually constitutes
       one area for employment purposes.  It includes any population
       center (or two or more neighboring areas) and the surrounding
       localities in which people live and reasonably can be expected to
       travel in their usual employment.
 
    It appears from the record that Union Proposal 2 is closely related
 to the preceding proposal.  That is, this proposal is applicable to the
 management actions in Union Proposal 1.  As previously observed (n. 4,
 supra), some of the personnel actions enumerated in the first proposal
 require application of reduction-in-force (RIF) procedures.  Moreover,
 the Union asserts that the definition of competitive area in Union
 Proposal 1 is not inconsistent with the definition of that term as set
 forth in Office of Personnel Management (OPM) regulations (5 CFR Part
 351).  Thus it is clear, in addition to any other application, Union
 Proposal 2 would govern in a RIF situation.
 
    According to the uncontroverted statement of the Agency, its
 currently established competitive area includes "the entire District
 (i.e., the District Office, all offices and all field agencies,
 including dredges and towboats).  Thus the competitive area, as
 permitted under OPM regulations, extends beyond the local commuting area
 and, in fact, encompasses several states (i.e., Kansas, Missouri, Iowa,
 and Nebraska)." The Agency also states, again without contradiction,
 that " . . . the competitive area (of the Agency) is composed of
 bargaining unit employees and positions and nonbargaining unit employees
 and positions." Further, according to the Agency, "Under the union's
 proposal, the competitive area would be restricted to the local
 commuting area but would still continue to be composed of bargaining
 unit employees and positions and nonbargaining unit employees and
 positions." /5/
 
    Thus, the record establishes that the instant proposal, by redrawing
 the Agency's competitive area, affects the working conditions of
 employees outside the bargaining unit.  That is, the proposal would
 effectively narrow the area of competition in a RIF situation for
 nonbargaining unit employees within the redrawn competitive area by
 excluding positions outside the local commuting area, and would bar
 those nonbargaining unit employees at remote Agency sites from competing
 for positions within the local commuting area.  The proposal therefore
 is to the same effect as the proposal before the Authority in American
 Federation of Government Employees, Local 32, AFL-CIO and Office of
 Personnel Management, 14 FLRA No. 98 (1984), which sought to establish a
 competitive area including both bargaining unit and nonbargaining unit
 employees.  Noting that the cited proposal would directly determine
 conditions of employment of employees not within the bargaining unit,
 the Authority held it to be nonnegotiable.  Thus, based upon Office of
 Personnel Management, and the reasons the cases cited therein, Union
 Proposal 2 is not within the Agency's duty to bargain.
 
    As to the Union's contention that the proposal is negotiable because
 it would only apply to bargaining unit positions, /6/ it is noted that
 the governing OPM RIF regulations, at 5 CFR 351.403, require that each
 agency "establish competitive levels consisting of all positions in a
 competitive area . . . ." Thus, the OPM regulations, which are
 Government-wide, /7/ require uniform treatment of all employees within a
 designated competitive area during a RIF.  The instant proposal,
 however, as explained by the Union, would require that contractual
 procedures be applied to employees competing for bargaining unit
 positions, but would not apply those procedures when employees compete
 in a RIF for positions not within the bargaining unit.  Consequently,
 Union Proposal 2 is outside the duty to bargain, pursuant to section
 7117(a)(1) of the Statute, because it is inconsistent with a
 Government-wide regulation.
 
    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., September 26, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union withdrew its request for review of a third proposal
 defining competitive level.  Accordingly, that proposal is not
 considered here.
 
 
    /2/ The Union's motion to consolidate this case with Case No.
 O-NG-672, involving the same parties, is hereby denied on the basis that
 the issues in the two cases are not sufficiently alike to warrant
 consolidation.
 
 
    /3/ The Union's assertion that this proposal constitutes an
 alternative to other methods of filling positions is unpersuasive in
 that it is at odds with the language of the proposal which is mandatory
 in nature and does not, on its face, provide for any alternatives in
 making reassignments.  In this connection, the Authority has
 consistently held that it will not base a negotiability determination on
 a union's statement of intent which is inconsistent with the express
 language of the disputed proposal.  See, e.g., American Federation of
 Government Employees, AFL-CIO, Local 2955 and National Guard Bureau,
 Office of the Adjutant General, Des Moines, Iowa, 5 FLRA 617 (1981).
 
 
    /4/ In this connection, it is noted that the events triggering
 operation of Union Proposal 1, i.e., lack of work, shortage of funds,
 reorganization, are the same that mandate application of
 reduction-in-force procedures under Office of Personnel Management
 regulations.  See 5 CFR 351.201(a).  Under these regulations the
 employee to be reassigned would be the one with the lowest retention
 standing.  See 5 CFR 351.602.  Thus the proposal which, in certain
 circumstances, would require reassignment of the employee with the
 highest retention standing is also inconsistent with a Government-wide
 regulation and outside the duty to bargain under section 7117(a)(1) of
 the Statute.  See, International Federation of Professional and
 Technical Engineers, AFL-CIO, NASA Headquarters Professional Association
 and National Aeronautics and Space Administration, Headquarters,
 Washington, D.C., 8 FLRA 212 (1982), n. 6.
 
 
    /5/ Agency Statement of Position at 7.
 
 
    /6/ Union Reply Brief at 4.
 
 
    /7/ National Aeronautics and Space Administration, Headquarters, 8
 FLRA 212 (1982), n. 6.