NAGE Local R14-87 and Kansas Army National Guard (Authority decision, April 21, 1986)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NAGE proposed that Kansas Army National Guard employees moved to another duty station in a reduction in force receive a noncompetitive return to their former position when it became vacant and the agency chose to fill it. The agency said employees reassigned at the same grade suffered no adverse effect and argued that the proposal interfered with its selection and assignment rights. The Authority found that moving across Kansas or facing a much longer commute was an adverse effect. It held that the limited return right did not excessively interfere with management's rights. The proposal was a negotiable appropriate arrangement, and the agency was ordered to bargain upon request.

Decision snapshot

• Authority: Appropriate arrangements under 5 U.S.C. § 7106(b)(3) and selection and assignment rights under § 7106(a)(2)(A) and (C).
• Outcome: Proposal within the duty to bargain; bargaining ordered upon request.
• Key point: A lateral transfer to another duty station can adversely affect employees even without a grade cut.

Full text (FLRA public release)

[ v21 p380 ]

21:0380(48)NG

The decision of the Authority follows:

21 FLRA No. 48

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R14-87
Union

and

DEPARTMENT OF THE ARMY,
KANSAS ARMY NATIONAL GUARD,
TOPEKA, KANSAS
Agency

Case No. 0-NG-874

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is 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 the following Union Proposal.

Union Proposal

Affected individuals will be returned non-competitively to the specific location and position from which they were RIF'ed when the position is vacated and being filled.

The proposal was submitted with regard to a Reduction-in-Force (RIF) whereby employees were involuntarily reassigned to positions of equal grade at different duty stations.

II. Positions of the Parties

The Union argues that the proposal constitutes an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute for employees adversely affected by the exercise of management's rights. It refers to 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).

The Agency states that employees covered by the proposal will not be adversely affected by any reduction in force (RIF) because they will have been placed into positions of equal grade. The Agency also alleges that the proposal is nonnegotiable because it interferes with management's right under section 7106(a)(2)(C) to fill positions by making selections from any appropriate source. Finally, the Agency alleges that the proposal violates management's right to assign employees under section 7106(a)(2)(A) by requiring the reassignment of employees.

III. Analysis

The Union Proposal would require the Agency to select employees who were involuntarily reassigned to a position of equal grade without personal cause for return to their former positions at their former duty stations if and when such positions are vacant and the Agency makes the determination to fill them. The basic issue in this case is whether the proposal constitutes a negotiable appropriate arrangement for employees adversely affected by the exercise of management's rights under section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), the Authority stated that henceforth the Authority will determine whether a proposal constitutes a negotiable "appropriate arrangement" under section 7106(b)(3) of the Statute by determining whether the proposal "excessively interferes" with the exercise of management's rights. In making such a determination, the Authority will first examine the record in each case to ascertain as a threshold question whether a proposal is in fact intended to be an arrangement for employees adversely affected by management's exercise of its rights. If the Authority concludes that a proposal is in fact intended as an arrangement, the Authority will then determine whether the arrangement is appropriate or whether it is inappropriate because it excessively interferes.

With regard to the threshold question, the Agency contends that the employees subject to the proposal are not adversely affected because they were reassigned to positions of equal grade in a different duty station. We disagree. Employees subject to a RIF in this case could be reassigned to any duty station within the State of Kansas. A change in duty station could require an employee to move or could result in a significant change of commute. We find that effect to be sufficient to meet the first requirement under section 7106(b)(3). Therefore, we find the proposal to be an "arrangement" for employees adversely affected by the exercise of a management right. According to the Union, the proposal is clearly intended to mitigate against an involuntary change in an employee's duty station by requiring selection of the employee for his or her previous position at his or her prior duty station when it is vacant and the Agency decides to fill it.

The issue thus becomes whether the proposal excessively interferes with management's right to select individuals to fill positions or management's right to assign employees. In this case it is a question of whether the right afforded employees under the proposal to return to their previous duty station is outweighed by the effect of the proposal on those management rights. As detailed above, the only effect of the proposal is to require management to select for a vacant position the employee who would still be in that very position if he or she had not been reassigned in a RIF.

In our decision in Kansas Army National Guard we held that a similar requirement was not a substantial burden on management when compared to the detriment suffered by employees demoted in a RIF and the benefit of repromotion conferred by the proposal in that case. While employees covered by the proposal in this case have not been demoted, we conclude that the necessity to relocate as a result of a permanent lateral involuntary reassignment, perhaps across the State, like a demotion causes significant negative impact on affected employees. See Union Statement of Position at 1. With this proposal, as with the one we considered in Kansas Army National Guard, the burden placed by the proposal on management's right to select is not so significant as to outweigh the disruption to an employee's life caused by assignment to a new duty station and the benefit conferred by the proposal of an opportunity for the employee to return to his or her former duty station. For the foregoing reasons, we find that the Union's proposal does not excessively interfere with management's right, under section 7106(a)(2)(C), to select individuals to fill vacant positions from any appropriate source.

The selection of employees to fill the positions they previously held at their former duty stations may entail a reassignment of those employees to their former duty station and thus may also have an effect upon management's right to assign employees. However, we find that this fact would not change the above analysis in that there would not be any different or additional substantive effect, nor would it add to the weight of management's practical needs.

IV. Conclusion

Having found that the employees involuntarily reassigned by RIF in this case were adversely affected by a management decision and that the Union Proposal does not excessively interfere with management's rights, under sections 7106(a)(2)(A) and (a)(2)(C) to assign employees and to fill vacant positions by making selections from any appropriate source, we hold that the proposal is an appropriate arrangement under section 7106(b)(3) and therefore negotiable.

V. Order

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request, or as otherwise agreed to by the parties, bargain concerning the Union Proposal. /*/

Issued, Washington, D.C., April 21, 1986.

/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

(*) In deciding that the proposal is negotiable, the Authority makes no judgment as to its merits.