14:0423(66)NG - AFGE, National Council of HUD Locals and HUD -- 1984 FLRAdec NG



[ v14 p423 ]
14:0423(66)NG
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 subchapt