National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, Corps of Engineers (Authority decision, July 10, 1984)

Final FLRA decision. The Authority dismissed the union's negotiability petition on the merits. An aggrieved person may seek judicial review of a final Authority order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

NFFE Local 29 proposed using reduction in force procedures for certain management directed reassignments at the Army Corps of Engineers' Kansas City District. The Authority read the disputed terms as applying those procedures even when no reduction in force occurred. It found that the rules could select an employee for reassignment based on retention standing rather than management's choice. Because that would interfere with the agency's statutory right to assign employees, the Authority held the proposal outside the duty to bargain and dismissed the petition.

Decision snapshot

• Authority: Right to assign employees under 5 U.S.C. § 7106(a)(2)(A).
• Outcome: Disputed reassignment terms held nonnegotiable; petition dismissed.
• Key point: Requiring reduction in force selection rules for ordinary reassignments could displace management's choice of employee.

Full text (FLRA public release)

[ v15 p254 ]

15:0254(49)NG

The decision of the Authority follows:

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)