13:0446(80)NG - AFGE Local 3483 and Federal Home Loan Bank Board, New York District Office -- 1983 FLRAdec NG



[ v13 p446 ]
13:0446(80)NG
The decision of the Authority follows:


 13 FLRA No. 80
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3483
 Union
 
 and
 
 FEDERAL HOME LOAN BANK BOARD,
 NEW YORK DISTRICT OFFICE
 Agency
 
                                            Case No. O-NG-377
 
                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 the question
 of the negotiability of the following Union proposals.
 
                             Union Proposal 1
 
          The residence of the Examiner will be considered his/her
       official duty station for purposes of computing expenses.
 
                       Question Before the Authority
 
    The question is whether, as alleged by the Agency, the proposal is
 outside the duty to bargain under section 7116(a)(1) of the Statute
 because it is inconsistent with Government-wide rules or regulations.
 
                                  Opinion
 
 Conclusion and Order:  The Union's proposal is inconsistent with
 provisions of the Federal Travel Regulations, which are Government-wide
 regulations within the meaning of section 7116(a)(1) of the Statute and
 thus is outside 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 as to Union Proposal 1 be, and it hereby is,
 dismissed.  Reasons:  The proposal would require the Agency to designate
 each employee's place of residence as the official duty station for the
 purpose of computing his or her travel expenses under the Federal Travel
 Regulations (FTRs).  The record is clear that this designation is not
 intended to be dependent upon where an employee in fact performs his or
 her duties or any like considerations.  The Agency contends the proposal
 conflicts with provisions of the FTRs, which are Government-wide
 regulations and, thus, is outside the duty to bargain under section
 7117(a)(1) of the Statute.  /1/
 
    In National Treasury Employees Union, Chapter 6 and Internal Revenue
 Service, New Orleans District, 3 FLRA 747 (1980), the Authority, based
 upon the legislative history of section 7117(a)(1), determined that the
 term "Government-wide rule or regulation" referred to those provisions
 which are generally applicable to the Federal civilian work force.  The
 Authority found that the Federal Property Management Regulations (FPMRs)
 at issue in that case were "Government-wide" within the meaning of
 section 7117(a) because they generally apply to Federal civilian
 employees in the executive, legislative, and judicial branches of the
 Government.
 
    The regulations at issue in the present case, the FTRs, are
 incorporated by reference in Part 101-7 of the FPMRs (41 CFR 101-7)
 promulgated by the Administrator of General Services.  These
 regulations, as relevant herein, were issued under the authority of 5
 U.S.C. 5701-5709.  They are applicable to official travel of civilian
 employees of Government agencies, including civilian employees of the
 Department of Defense, as authorized under 5 U.S.C. 5701-5709, but
 excluding employees of the judicial branch of the Government.  By their
 terms, these regulations generally apply to and are binding on the
 Federal civilian work force as a whole, though not, of course, to every
 Federal employee.  As such, these regulations are generally applicable
 throughout the Federal government and are "Government-wide regulations"
 within the meaning of section 7117(a).
 
    The remaining issue is whether this proposal is inconsistent with
 provisions of the FTRs.  The term "official station" is defined as an
 employee's designated post of duty, the limits of which will be " . . .
 the corporate limits of the city or town in which the officer or
 employee is stationed . . . ." FTR Para. 1-1.3c(1).  The Office of the
 Comptroller General has considered questions involving the location of
 an employee's official duty station for purposes of computing travel and
 transportation allowances under the FTRs and the Standardized Government
 Travel Regulations which preceded the FTRs.  An employee's official duty
 station consistently has been held to be the place at which the employee
 performs the major part of his or her duties and is expected to spend
 the greater part of his or her time.  See 32 Comp.Gen. 87 (1952).
 Furthermore, although the location of an employee's official station is
 essentially a factual matter for determination primarily by the
 administrative agency involved, that agency may not designate an
 employee's official duty station at some place other than the place at
 which that person is expected to perform the preponderance of his or her
 duties.  31 Comp.Gen. 289 (1952).  Therefore, the reassignment or
 transfer "on paper" of an employee to a new duty station is not in
 itself a sufficient basis for granting that employee travel expenses
 where the facts show that the employee's actual duty station is really
 another place at which the employee would not be entitled to the claimed
 travel expenses.  Matter of Arthur S. Spencer-Mileage, B-193807, May 21,
 1979.  Thus, under the FTRs, as interpreted and applied in decisions of
 the Comptroller General, an agency's determination of an employee's
 official duty station for the purpose of computing travel expenses must
 have a factual basis, as set forth above.
 
    The proposal at issue herein by requiring the Agency to designate
 each employee's residence as his or her official duty station without
 regard for any such factual basis and to compute travel expenses from
 such place of residence would conflict with the FTRs.  Thus, this
 proposal is outside the duty to bargain under section 7117(a)(1) of the
 Statute.  /2/
 
                             Union Proposal 2
 
          When on a commuting assignment, a maximum of one hour each way
       will be on the employee's time.  Additional required time will be
       accomplished on official time.
 
                       Question Before the Authority
 
    The question is whether the proposal is outside the duty to bargain
 under section 7106(a)(2)(B) of the Statute because it is inconsistent
 with management's right to assign work.
 
                                  Opinion
 
 Conclusion and Order:  This proposal is inconsistent with management's
 right to assign work under section 7106(a)(2)(B) of the Statute /3/ and
 thus is outside 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 as to Union Proposal 2 be, and it hereby is,
 dismissed.  Reasons:  Based on the record, the bank examiners whose
 travel is the subject of this proposal generally receive their
 examination assignments by mail and travel from their residences
 directly to and from their examination sites without reporting to the
 District Office.
 
    In the absence of any Union statement controverting the Agency's
 contentions with respect to the proposal's intended effect, the
 Authority concludes, in agreement with the Agency, that the proposal
 would in essence preclude the assignment of bank examination duties
 during hours at the beginning and end of the workday to those employees
 whose commute between residence and workplace exceeds one hour each way.
  In this respect, the proposal is substantively to the same effect as
 Proposal 7 in National Treasury Employees Union and NTEU Chapter 80 and
 Department of the Treasury, Internal Revenue Service, Central Region, 8
 FLRA No. 38 (1982), which would have required management to assign
 specified types of work at specific times to bargaining unit employees
 and would have precluded the assignment of other work at those times
 and, thus, was held to violate management's right "to assign work" under
 section 7106(a)(2)(B) of the Statute.  Therefore, for the reasons stated
 in Internal Revenue Service, the Authority finds the proposal in dispute
 herein violates management's right to assign work under section
 7106(a)(2)(B) and is outside the duty to bargain.  /4/ See also Proposal
 I in International Association of Fire Fighters, Local F-48, AFL-CIO and
 Naval Support Activity, Mare Island Station, California, 3 FLRA 489
 (1980).
 
                             Union Proposal 3
 
          Section 3 - Critical Elements - Critical elements shall be
       based on the duties contained in the official written description
       of the employee's position.  To the extent practicable, Critical
       Elements should be related to the grade controlling duties of a
       position.  Critical Elements shall be communicated in writing to
       each employee at the beginning of the rating period.
 
          Section 9 - Notice to the Union - Management shall inform the
       union on any and all studies it conducts bearing on performance
       appraisals.  Management shall inform the union of any Department
       wide changes in performance standards.
 
          (Only the underlined portions of the proposal are in dispute.)
 
                      Questions Before the Authority
 
    The questions are whether, as alleged by the Agency, the disputed
 portion of Section 3 of the proposal is inconsistent with section
 7106(a)(2)(A) and (B) of the Statute and whether the disputed portion of
 Section 9 is inconsistent with section 7114(b)(4)(C) and thus outside
 the duty to bargain.
 
                                  Opinion
 
 Conclusion and Order:  The underlined portion of Section 3 of the
 proposal is inconsistent with section 7106(a)(2)(A) and (B) of the
 Statute.  Accordingly, pursuant to section 2424.10 of the Authority's
 Rules and Regulations, IT IS ORDERED that the petition for review of
 Section 3 of the proposal be, and it hereby is, dismissed.  The
 underlined portion of Section 9 of the proposal concerns procedures
 management will observe in developing a performance appraisal system and
 is within the duty to bargain under section 7106(b)(2) 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 the disputed
 portion of Section 9 of the proposal.  /5/ Reasons:  In American
 Federation of Government Employees, AFL-CIO, Local 1968 and Department
 of Transportation, Saint Lawrence Seaway Development Corporation,
 Massena, New York, 5 FLRA No. 14 (1981), affirmed sub nom. American
 Federation of Government Employees, Local 1968 v. Federal Labor
 Relations Authority, 691 F.2d 565 (D.C. Cir. 1982), cert. denied . . .
 U.S. . . . , 103 S.Ct. 2085 (1983), the Authority found that Union
 Proposal 1, which precluded management from identifying and establishing
 as a critical element of a position any duty which was not based upon a
 grade controlling factor, constituted an improper limitation on
 management's discretion to direct employees and assign work through the
 designation of critical job elements.  Therefore, the Authority held the
 proposal nonnegotiable under section 7106(a)(2)(A) and (B) of the
 Statute.  /6/ Further, with respect to Union Proposal 4 in that case, it
 would have subjected management's identification of critical elements to
 arbitral review and for that reason also was held to be inconsistent
 with the same sections of the Statute.  Insofar as Section 3 of the
 disputed proposal herein provides that " . . . Critical Elements should
 be related to the grade controlling duties of a position," it would
 specify a substantive criterion by which management must identify only
 grade controlling duties as the critical work of a given position.  In
 this regard, it is materially to the same effect as Proposal 1 in the
 Saint Lawrence Seaway decision.
 
    With respect to the phrase "to the extent practicable" in the present
 proposal which was not involved in Proposal 1 in Saint Lawrence Seaway,
 this language would not require a different result.  Rather, it would
 have the effect of subjecting management's discretion to identify the
 critical elements of a position, i.e., management's decision that it is
 not practicable to limit its identification of critical elements to only
 those tasks which are related to the grade controlling duties of a
 particular position, and thus identify as critical elements duties which
 are not grade controlling, to review in an arbitration proceeding.
 Section 3 would, in effect, subject to arbitral review the Agency's
 identification of critical elements and permit arbitrators to render
 awards which would require the Agency to use different critical
 elements.  Thus, the language "to the extent practicable" does not
 remove the limitation imposed on management's identification of critical
 elements by Section 3 of the proposal.  In this regard, contrary to the
 Union's claim, by prescribing a substantive limitation on the exercise
 of management's right to identify critical elements, Section 3 is
 distinguished from Union Proposal 5 in American Federation of Government
 Employees, AFL-CIO, Local 32 and Office of Personnel Management,
 Washington, D.C., 3 FLRA 784, 789-94 (1981), which the Authority found
 to be within the duty to bargain.  The proposal in that case merely
 established a criterion by which the application to a particular
 employee of standards and elements established by management could be
 reviewed in a grievance and, as such, could not result in overturning
 those standards and elements.  Thus, it constituted an appropriate
 arrangement under section 7106(b)(3) of the Statute for employees who
 had been adversely affected by the exercise of management's rights to
 direct employees and assign work.  Therefore, for the reasons set forth
 in detail in Saint Lawrence Seaway, Section 3 of the proposal must be
 held to be outside the duty to bargain.
 
    The disputed portion of Section 9 of the proposal, by its language
 and the Union's stated intent in the record, seeks to insure that the
 Agency would notify the Union of studies it conducts concerning
 performance appraisals, i.e., that there will be no secret studies on
 performance appraisals.  The Agency's sole contention with respect to
 this portion of the proposal is that Section 9 is inconsistent with
 section 7114(b)(4)(C) of the Statute /7/ which prohibits the Agency from
 furnishing to the Union any data which constitutes guidance or advice to
 management relating to collective bargaining.  Under the circumstances
 presented here, section 7114 is inapposite.  As mentioned above, the
 proposal only requires that there be no secret studies concerning
 performance appraisals.  The proposal does not in any manner literally
 relate to information or data necessary to management for collective
 bargaining purposes.  Further, the Agency has not shown how the proposal
 would involve furnishing information which management needs for
 negotiations in violation of section 7114(b)(4)(C).
 
    The proposal's requirement that the Union be informed of "studies"
 related to performance appraisals is identical in effect to the first
 sentence of the first paragraph of Proposal 4 in American Federation of
 Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
 Corporation, Chicago Region, Illinois, 7 FLRA No. 34 (1981), which the
 Authority held to be negotiable pursuant to section 7106(b)(2) of the
 Statute.  /8/ The Authority found in that case that the proposal
 concerned matters of a procedural nature, relating to the development of
 a performance appraisal system, which would not prevent the agency from
 identifying a particular critical element or establishing a particular
 performance standard pursuant to its reserved rights.  Therefore, for
 the reasons set forth in Federal Deposit Insurance Corporation, the
 disputed portion of Section 9 of this proposal, which concerns matters
 of a procedural nature, is within the duty to bargain under section
 7106(b)(2) of the Statute.  Issued, Washington, D.C., December 2, 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:
 
          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/ Since the Authority concludes that Union Proposal 1 is outside
 the duty to bargain under section 7117(a)(1), it is unnecessary to
 consider the Agency's additional contentions concerning the
 nonnegotiability of the proposal.
 
 
    /3/ Section 7106(a)(2)(B) provides:
 
          Sec. 7106.  Management rights
 
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
 
                                .  .  .  .
 
          (2) in accordance with applicable laws--
 
                                .  .  .  .
 
          (B) to assign work . . . (.)
 
 
    /4/ Since the Authority concludes that Union Proposal 2 is outside
 the duty to bargain under section 7106(a)(2)(B), it is unnecessary to
 consider the Agency's other contentions concerning the nonnegotiability
 of the proposal.
 
 
    /5/ In deciding that the disputed portion of Section 9 of the
 proposal is within the duty to bargain, the Authority makes no judgment
 as to the merits thereof.
 
 
    /6/ Section 7106(a)(2)(A) and (B) provides:
 
          Sec. 7106.  Management rights
 
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
 
                                .  .  .  .
 
          (2) in accordance with applicable laws--
 
          (A) to . . . direct . . . employees in the agency . . . ;
 
          (B) to assign work . . . (.)
 
 
    /7/ Section 7114(b)(4)(C) provides:
 
          Sec. 7114.  Representation rights and duties
 
                                .  .  .  .
 
          (b) The duty of an agency and an exclusive representative to
       negotiate in good faith under subsection (a) of this section shall
       include the obligation--
 
                                .  .  .  .
 
          (4) in the case of an agency, to furnish to the exclusive
       representative involved,