15:0403(85)NG - AFGE Local 3529 and Defense Contract Audit Agency, Chicago, IL -- 1984 FLRAdec NG
[ v15 p403 ]
The decision of the Authority follows:
15 FLRA No. 85 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3529 Union and DEFENSE CONTRACT AUDIT AGENCY CHICAGO, ILLINOIS Agency Case No. O-NG-570 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 presents issues relating to the negotiability of the following Union proposal: Article XIV, Section 5 F. Absence from duty for taking the CPA and Bar Examinations will be authorized without loss of pay or charge to leave, as it has been determined that such professional qualifications are in the best interests of the Agency. Excused absence may be authorized for taking other types of professional examinations upon the determination by the Regional Director that such professional qualification is in the best interest of the Agency. Excused time will include time required to travel to and from the point of the examination (and any other required personal attendance), but not to exceed a total of sixteen (16) hours travel time. Per diem and/or travel expenses will be authorized to sit for the CPA Examination. Upon careful consideration of the entire record, the Authority makes the following determination. /1/ The Union proposal requires that the Agency authorize the payment of per diem and/or travel expenses for the purpose of taking the Certified Public Accountant (CPA) examination. The Agency contends the proposal is nonnegotiable based on National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508 (1981). In that case, Proposal 1 had the effect of reimbursing attorneys for all costs incurred in attending continuing legal education courses. The Authority held that the proposal violated Federal law and therefore was outside the duty to bargain under section 7117(a)(1) of the Statute. In so holding, the Authority noted that the Training Act (5 U.S.C.Chapter 41) established the legal basis for reimbursement. Specifically, that Act limits reimbursement to necessary expenses for training directly related to official duties. The Union contends that the Training Act, and thereby the decision in Internal Revenue Service, is inapposite to the issue here of whether an agency may authorize payment of per diem and/or travel expenses incident to taking the CPA examination because the Union contends the CPA examination is not subject to the special requirements established for training under that Act. The Training Act, as stated previously, is the basic authority for use of appropriated funds to train government employees. /2/ Examinations which are not an integral part of a course of instruction, or an examination process which is not itself designed to impart knowledge and skills to examinees, are not within the definition of "training" in the Act. /3/ However, the fact that the examination in question is not covered by the Training Act means that there is no authorization for reimbursement of such costs consistent with law. /4/ It would appear, based upon the facts in this case, that the examination herein is not "training" reimbursable under the Training Act. Therefore, based on Internal Revenue Service and the reasons stated therein, the Authority concludes that the instant proposal would conflict with the statutory limitations of the Training Act as implemented by relevant regulation and is outside the duty to bargain as inconsistent with that law. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10), IT IS ORDERED that the petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., July 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency requests that the Authority dismiss the Union's petition for review. It contends that the Authority does not have the jurisdiction to decide the instant case because the Comptroller General is the final arbiter in matters of pay. However, under the Statute, the Authority has complete authority to decide all issues concerning the negotiability of a union proposal. Accordingly, the Agency's request for dismissal of the Union's petition on this basis is denied. /2/ 55 Comp.Gen. 759, 760 (1976) and Comptroller General Decision, B-187525 (Oct. 15, 1976). /3/ 5 U.S.C. 4101(4) provides as follows: (4) "training" means the process of providing for and making available to an employee, and placing or enrolling the employee in, a planned, prepared, and coordinated program, course curriculum, subject, system, or routine of instruction or education, in scientific, professional, technical, mechanical, trade, clerical fiscal, administrative, or other fields which are or will be directly related to the performance by the employee of official duties for the Government, in order to increase the knowledge, proficiency, ability, skill, and qualifications of the employee in the performance of official duties(.) In this regard, see Comptroller General decisions, note 2, supra; see also Federal Personnel Manual (FPM) Chapter 410, 6-3d(5)(a), which states, in pertinent part: (a) An examination fee may be paid if the examination is used as a diagnostic tool to determine deficiencies in knowledges and skills needed by an employee for the performance of official duties so as to ascertain his/her training needs when the agency is unable to determine those needs through supervisory evaluation or other available agency appraisal system or when such evaluation or appraisal system would be more costly. The cost of an examination would not otherwise be payable except when the cost of the examination is inextricably mixed with the cost of a program of training or when the examination process itself is designed to impart knowledges and skills to the examinee(.) /4/ See 55 Comp.Gen. 759, 760-61, which states: While 5 U.S.C. 4109 . . . authorizes agency payment of some or all training costs, and while the implementing regulation contained in the Federal Personnel Manual, ch. 410, Sec. 6-1(a) permits an agency head to define "necessary training expenses" for the purpose of payment of those expenses, an agency head is not authorized to expand the statutory definition of "training" or to pay for items not contemplated by that definition. Because an examination such as the one here involved (bar examination) does not fall within the definition of training, no reimbursement is possible for fees charged for an examination or for allied costs, such as travel and per diem, incurred while taking an exam which is not part of a regular course of instruction.