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
                                            Case No. 0-NG-879
                         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 fo