16:0251(35)NG - AFGE, National Border Patrol Council and Justice, INS -- 1984 FLRAdec NG



[ v16 p251 ]
16:0251(35)NG
The decision of the Authority follows:


 16 FLRA No. 35
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, NATIONAL BORDER
 PATROL COUNCIL
 Union
 
 and
 
 DEPARTMENT OF JUSTICE, IMMIGRATION
 AND NATURALIZATION SERVICE
 Agency
 
                                            Case No. O-NG-673
 
                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 presents 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
 
          Item 3.  To the maximum extent possible, no employee will be
       detailed to the Cuban/Haitian Refugee Program for an aggregate of
       more than seventy (70) calendar days in any one calendar year,
       unless the employee freely volunteers for a longer period.
 
    Union Proposal 1, effectively establishing limitations on the length
 of certain temporary assignments, is to the same effect as Union
 Proposal 13, in American Federation of Government Employees, AFL-CIO,
 National Immigration and Naturalization Service Council and U.S.
 Department of Justice, Immigration and Naturalization Service, 8 FLRA
 347 (1982), which the Authority found to violate the Agency's right to
 assign work pursuant to section 7106(a)(B) of the Statute.  In the cited
 case, the disputed proposal sought to limit travel away from normal duty
 stations to not more than 35 days unless the employee volunteered for a
 longer period.  It was found to be inconsistent with the management
 right "to assign work," i.e., the discretion to determine the particular
 employee to whom the work will be assigned and the discretion to
 determine when the work which has been assigned will be performed.
 
    The Union, in the instant case, contends, however, that the inclusion
 of the phrase "to the maximum extent possible" in the proposal leaves
 with the Agency discretion to exercise its reserved rights without
 inhibition.  In this regard, the Union states that "what is 'possible'
 is left up to the agency to decide and management has both the option
 and discretion of detailing an employee for more than seventy (70)
 calendar days if, in their determination, it is not possible to do
 anything to the contrary." Further, the Union asserts the phrase
 constitutes a general, non-quantitative standard "for evaluating the
 exercise of a management right . . . ."
 
    The Authority examined the import of a similar phrase in Union
 Proposal 3 in American Federation of Government Employees, AFL-CIO,
 Local 3483 and Federal Home Loan Bank Board, New York District Office,
 13 FLRA No. 80 (1983).  In that case the proposal required that "to the
 extent practicable" critical elements be related to grade controlling
 duties of a position.  The question raised was whether the phrase "to
 the extent practicable" rendered the proposal negotiable despite the
 limitation imposed by the balance of the proposal on management's
 discretion in identifying critical elements.  The Authority found that
 the inclusion of the phrase did not alter the conclusion that the
 proposal was inconsistent with management's rights, pursuant to section
 7106(a)(2)(A) and (B) of the Statute, to direct employees and to assign
 work because the proposal would subject substantive management decisions
 regarding the establishment of critical elements to arbitral scrutiny
 and possible revision.
 
    In like manner, Union Proposal 1, herein, would subject to arbitral
 review and possible revision the Agency's decision made pursuant to its
 right to assign work at the temporary location for more than 70 days.
 Therefore, notwithstanding the inclusion of the phrase "to the maximum
 extent possible," based on Immigration and Naturalization Service and
 the reasons and case cited therein, Union Proposal 1 is not within the
 Agency's duty to bargain.
 
                             Union Proposal 2
 
          Item 5.  Each employee detailed to the Cuban/Haitian Refugee
       Program will be entitled to one (1) 15-minute, long-distance call
       each week at government expenses for the purpose of maintaining
       contact with his/her family.
 
    In agreement with the Agency, the Authority concludes that Union
 Proposal 2 is inconsistent with a Government-wide regulation.  Pursuant
 to responsibilities assigned by 5 USC 5707(a), the General Services
 Administration (GSA) has issued regulations governing travel allowances.
  These regulations, incorporated in the Federal Property Management
 Regulation (FPMR) 101-7 (1981) state in paragraph 1-1.3.b, with respect
 to employee travel expenses that, "Traveling expenses which will be
 reimbursed are confined to those expenses essential to the transacting
 of official business." With specific regard to telephone calls, FPMR
 101-7, paragraph 1-6.5, requires that charges for telephone calls must
 be certified as being required "on official business" before
 reimbursements will be made.  Paragraph 1-6.4.b of the same regulation
 enumerates those matters not considered official business:
 
          b.  Personal business.  Telephone calls, telegrams, cablegrams,
       and radiograms relating to leave of absences or extension thereof,
       or to payment of salary or expense vouchers and answers thereto,
       or those containing other matters of a purely personal nature,
       must not be made or sent at Government expense, and charges
       therefor shall not be allowed.
 
 Additionally, 41 CFR 101-37.105-4 (1983) states, with regard to the
 Federal Telecommunications System and other Government provided long
 distance telephone facilities:
 
          Use of Government facilities for personal reasons is prohibited
       and could result in an employee's being fined, suspended, or
       dismissed.  5 CFR 735.205 prohibits the use of Government property
       for other than official approved activities.
 
    The Union tacitly acknowledges that the telephone calls referred to
 in the proposal do not, per se, constitute official Government business.
  Rather, it asserts that such calls are necessitated by the Agency's
 requirement that employees be away from home for extended periods and
 that there is nexus between these phone calls and official business
 because the resultant improvement in morale will increase employee
 productivity and effectiveness.  However, this Union contention cannot
 be sustained.  It is clear that the applicable Government-wide
 regulations expressly exclude such personal telephone calls from the
 ambit of "o