13:0060(13)NG - NTEU and NTEU Chapter 208 and Nuclear Regulatory Commission -- 1983 FLRAdec NG



[ v13 p60 ]
13:0060(13)NG
The decision of the Authority follows:


 13 FLRA No. 13
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 208
 Union
 
 and
 
 NUCLEAR REGULATORY COMMISSION
 Agency
 
                                            Case No. O-NG-283
 
                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 raises issues
 concerning the negotiability of two Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          4.  In the event that an employee is ordered to travel outside
       normal duty hours in order to be at a site when it opens, he/she
       shall be considered in a pay status for the travel period, for
       which he/she shall be entitled to enter overtime pay or
       compensatory time.  The same situation would exist on return
       travel should the employee be ordered to travel outside of duty
       hours.  (This is in accordance with NRC Appendix 4136 Part VII
       B.2.d in that the event (the opening and closing of the site) is
       scheduled or controlled by someone outside of the Executive Branch
       of Government.)
 
                       Question Before the Authority
 
    The question is whether Union Proposal 1 is inconsistent with Federal
 law and, therefore, outside the duty to bargain under section 7117(a)(1)
 of the Statute, /1/ as alleged by the Agency.
 
                                  Opinion
 
 Conclusion and Order:  Union proposal 1 is not inconsistent with Federal
 law and is within the duty to bargain under section 7117(a)(1) of the
 Statute.  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 Union
 Proposal 1.  Reasons:  The record indicates that, in exchange for the
 reopening of one nuclear waste disposal site in each of their states by
 the Governors of Washington and Nevada, the Agency agreed to furnish
 full time, instead of periodic, inspection services at the sites to
 insure adherence to Agency regulations.  The Agency subsequently
 provided the agreed upon services by detailing an inspector to each site
 for a one week, Monday through Friday, tour of duty from a regional
 office located in a suburb of San Francisco.  Union Proposal 1 would
 require that when the detailed inspectors must travel outside their
 normal duty hours in order to be present during the hours of operation
 of the disposal sites, the inspectors shall be in a pay status.
 
    Applicable Federal law, 5 U.S.C. 5542(b)(2)(B), /2/ specifies that
 one of the limited circumstances under which hours outside of normal
 working hours spent in a travel status away from an employee's official
 duty station are hours of employment is if the travel "results from an
 event which could not be scheduled or controlled administratively." The
 question of whether the instant proposal is inconsistent with law turns
 on whether the "event" from which the travel in question results is
 administratively uncontrollable.
 
    The Agency contends that the "event" requiring travel is the
 previously mentioned agreement between the Agency and the two Governors,
 and concludes that as a party to that agreement it "clearly has
 administrative control generally over the agreement and specifically
 over the hours of duty established to meet the terms of the agreement."
 This conclusion is not supported in the record.  Rather, insofar as
 appears from the record, the terms of the agreement would require
 inspectors to be present during the hours of operation of the disposal
 sites.  Therefore, it is the establishment of the hours of operation at
 each site which is the "event" from which travel outside employees'
 normal duty hours directly would result.  The Agency effectively
 concedes in the record that the hours of operation at the sites are not
 matters within its administrative control but are set by a private
 commercial firm independent of the Agency.  /3/ Thus, the circumstances
 herein are distinguishable from those in the Court of Claims case /4/
 and Comptroller General decisions /5/ relied upon by the Agency, in that
 the cited cases involved circumstances wherein management retained
 partial or complete control over the event requiring travel.
 Accordingly, it is concluded that the exception set forth in 5 U.S.C.
 5542(b)(2)(B)(iv) is applicable to the circumstances herein and,
 therefore, the proposal is not inconsistent with Federal law.
 
    The Agency notes that Union Proposal 1 would require overtime
 compensation for travel both to and from the disposal sites and asserts
 that the entitlement to such compensation for travel to the site is not
 controlling as to travel from the site.  While the Agency's position is
 correct, under applicable regulations, where an employee completes his
 or her temporary assignment located away from the employee's duty
 station at close of business on Friday and departs immediately (or
 shortly) thereafter for his or her residence-- as is the case here--
 such travel, outside the employee's regular work hours, is to be
 considered hours of employment.  In this regard, pursuant to its
 responsibility under 5 U.S.C. 5548(a), the Office of Personnel
 Management (OPM) has issued regulations and guidance governing the
 administration of overtime.  In Federal Personnel Manual Supplement
 990-2, Book 500, Subchapter S1 (1983), "Premium Pay", OPM has provided
 examples of travel resulting from an event which cannot be scheduled or
 controlled administratively.  Among the examples provided is the
 following (at 550-13):
 
       . . . when a training course is conducted by an institution
       outside the Government, it is an event which cannot be scheduled
       or controlled administratively and required travel outside the
       employee's regular work hours to attend the training course will
       be considered hours of employment.
 
                                .  .  .  .
 
       . . . if the employee (whose regular hours of work are 8 a.m. to 5
       p.m., Monday through Friday) completes the course at 5 p.m.
       Friday, his travel on either Friday night or Saturday (depending
       on availability of transportation) will be payable, because, under
       a decision of the Comptroller General (B-160258, November 21,
       1966), he is not entitled to per diem if he should remain until
       Monday, and thus, his travel time cannot be controlled
       realistically.
 
 This example is analogous to the circumstances of this case, where
 overtime compensation is sought for travel after completion of work
 assignments on Friday.  Hence it is concluded that such compensation
 would not be inconsistent with governing regulations.
 
    For the reasons stated, Union Proposal 1 is not inconsistent with
 applicable Federal law or regulations and therefore is within the
 Agency's duty to bargain.
 
                             Union Proposal 2
 
          5.  Employees shall be considered in a per diem status from the
       time they leave for the site until the time they return, unless
       they elect to go into a previously approved leave status during
       the tour of duty.
 
                       Question Before the Authority
 
    The question is whether Union Proposal 2 is inconsistent with a
 Government-wide regulation and, therefore, not within the duty to
 bargain under section 7117(a)(1) of the Statute, as the Agency alleged.
 
                                  Opinion
 
 Conclusion and Order:  Union Proposal 2 is not inconsistent with a
 Government-wide regulation and, hence, is within the duty to bargain
 under section 7117(a)(1) of the Statute.  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 Union Proposal 2.  Reasons:  The Agency
 asserts that the proposal would conflict with the Federal Travel
 Regulations, issued pursuant to 5 U.S.C. 5707(a), under which a Federal
 employee would not be entitled in a number of situations to receive per
 diem payments for the full period of his or her travel.  The Agency
 characterizes the proposal as requiring per diem payments in
 contravention of applicable regulations.  But according to the Union,
 the proposal would merely require employees to be considered in a status
 for which they could be paid per diem so far as would be consistent with
 applicable regulations from the time they leave for the site until the
 time they return:  as the Union concedes, however, "the question as to
 whether the employee would be compensable in that status remains an
 issue of application of the travel regulations and the proposal
 together." Thus, insofar as the proposal would not require disbursements
 which would be inconsistent with applicable regulations but, instead,
 merely would require that covered employees receive all allowable per
 diem payments, in the circumstances described, under applicable
 regulations, Union Proposal 2 is within the duty to bargain.  /6/
 
 
 Issued, Washington, D.C., September 22, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7117(a)(1) provides as follows:
 
          Sec. 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult
 
          (a)(1) Subject to paragraph (2) of this subsection, the duty to
       bargain in good faith shall, to the extent not inconsistent with
       any Federal law or any Government-wide rule or regulation, extend
       to matters which are the subject of any rule or regulation only if
       the rule or regulation is not a Government-wide rule or
       regulation.
 
 
    /2/ 5 U.S.C. 5542(b)(2)(B) provides as follows:
 
          Sec. 5542.  Overtime rates;  computation
 
                                .  .  .  .
 
          (b) For the purpose of this subchapter--
 
                                .  .  .  .
 
          (2) time spent in a travel status away from the official duty
       station of an employee is not hours of employment unless--
 
                                .  .  .  .
 
          (B) the travel (i) involves the performance of work while
       traveling, (ii) is incident to travel that involves the
       performance of wor