14:0423(66)NG - AFGE, National Council of HUD Locals and HUD -- 1984 FLRAdec NG
[ v14 p423 ]
The decision of the Authority follows:
14 FLRA No. 66 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL COUNCIL OF HUD LOCALS Union and DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Agency Case No. O-NG-436 DECISION AND ORDER ON NEGOTIABILITY ISSUE /1/ 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 concerns the negotiability of the following Union proposal. /2/ Union Proposal (1) If an IPA assignment is terminated by management direction, any repayment obligation shall be waived. (2) An IPA assignee's official file shall be documented to indicate a management-directed termination of an IPA assignment. (Only the underlined language is in dispute.) Question Before the Authority The question is whether, as alleged by the Agency, Part 1 of the proposal is outside the duty to bargain because it is inconsistent with Federal law (5 U.S.C. 3372). Opinion Conclusion and Order: The disputed portion of the proposal is not inconsistent with 5 U.S.C. 3372 as the Agency alleged and, thus, is not outside 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 on this proposal. /3/ Reasons: An "IPA assignment," as is the subject of the disputed proposal, is an assignment pursuant to subchapter VI, chapter 33, of title 5, United States Code, which governs the temporary assignment of personnel between the Federal government and State or local governments or institutions of higher education. Such assignments, so far as is here relevant, permit Federal civilian employees of executive agencies to serve with State or local governments or institutions of higher education for periods of up to four years without loss of employee rights and benefits. 5 U.S.C. 3372. The executive agency and the State or local government concerned may agree to establish the IPA assignment on a wholly or partially reimbursable or nonreimbursable basis. 5 U.S.C. 3373. Certain travel expenses of a Federal employee on assignment to a State or local government, or educational institution may be paid or reimbursed by the executive agency. However, payment or reimbursement of these travel expenses may be allowed only if the employee agrees as part of the written assignment agreement to serve the entire period of the IPA assignment or one year, whichever is shorter, unless the assignment is terminated for reasons beyond the employee's control that are acceptable to the executive agency. If the IPA assignment is not carried out, the travel expenses are recoverable from the employee as a debt due the United States. 5 U.S.C. 3375. The Union states that its proposal is intended to deal with the obligation of the Federal Employees it represents to repay money spent by the Agency for those employees' travel expenses in connection with IPA assignments which are covered by and payable under the provisions of 5 U.S.C. 3375. /4/ In this connection, an employee's repayment obligation arises when the employee violates his or her agreement to complete the entire period of the IPA assignment or one year, whichever is shorter. Under that section, an agency may waive an employee's repayment obligation under certain conditions. That is, if the employee is separated or reassigned for reasons beyond the employee's control that are acceptable to the agency, travel expenses may be allowed even though the employee does not complete the assignment. The Union, consistent with the language of the proposal, interprets it as providing for such waiver of repayment obligations only when the waiver would be in accordance with the provisions of 5 U.S.C. 3375(b). /5/ The Authority adopts such interpretation of the proposal. Therefore, 5 U.S.C. 3375 would not bar negotiations on the proposal. The Agency claims that the proposal is inconsistent with 5 U.S.C. 3372(c). /6/ This provision does not render the proposal nonnegotiable. Under 5 U.S.C. 3372(c)(1) and (2), an employee is required to repay all expenses (excluding salary) connected with an IPA assignment should the employee fail to carry out his or her agreement to serve in the civil service upon completion of the IPA assignment for a period of time equal to the length of the assignment. The employee must make such an agreement as a condition of accepting an IPA assignment. (See note 4, supra.) However, the proposed language and the Union's stated intent as to its meaning do not in any manner concern the employee's agreement to serve in the civil service upon completion of the IPA assignment. Rather, the proposal concerns only the IPA assignment itself and the Agency's waiver of an employee's repayment obligation if the IPA assignment is terminated by management. Therefore, the Agency's contentions that the provisions of 5 U.S.C. 3372(c) bar negotiations on the proposal are inapposite. Accordingly, since the proposal has not been found to be inconsistent with either 5 U.S.C. 3372 or Sec. 3375, the proposal is within the duty to bargain. Issued, Washington, D.C., May 8, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency's request to dismiss the appeal as untimely is hereby denied. In this regard, based upon the record, the Union filed its appeal within the prescribed 15-day period after the Agency alleged in writing, in the response to the Union's written request, that the proposals in question are nonnegotiable. See American Federation of Government Employees, AFL-CIO, Local 3385 and Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA No. 58 (1981). /2/ The appeal, as filed, involved six proposals. Subsequently, the Union requested permission to withdraw five of those proposals. The Union's request is hereby granted. /3/ In deciding that the proposal is within the duty to bargain, the Authority makes no judgment as to its merits. /4/ 5 U.S.C. 3375 provides in relevant part: Sec. 3375. Travel expenses (a) Appropriations of a Federal agency are available to pay, or reimburse, a Federal or State or local government employee . . . . . . . . (b) Expenses specified in subsection (a) of this section, other than those in paragraph (1)(C), may not be allowed in connection with the assignment of a Federal or State or local government employee under this subchapter, unless and until the employee agrees in writing to complete the entire period of his assignment or 1 year, whichever is shorter, unless separated or reassigned for reasons beyond his control that are acceptable to the Federal agency concerned. If the employee violates the agreement, the money spent by the United States for these expenses is recoverable from the employee as a debt due the United States. The head of the Federal agency concerned may waive in whole or in part a right of recovery under this subsection with respect to a State or local government employee on assignment with the agency. /5/ Union Reply Brief at 5. /6/ 5 U.S.C. 3372(c)(1) and (2) provides: Sec. 3372. General provisions . . . . (c)(1) An employee of a Federal agency may be assigned under this subchapter only if the employee agency, as a condition of accepting an assignment under this subchapter, to serve in the civil service upon the completion of the assignment for a period equal to the length of the assignment. (2) Each agreement required under paragraph (1) of this subsection shall provide that in the event the employee fails to carry out the agreement (except for good and sufficient reason, as determined by the head of the Federal agency from which assigned) the employee shall be liable to the United States for payment of all expenses (excluding salary) of the assignment. The amount shall be treated as a debt due the United States.