17:0890(116)NG - Maritime Metal Trades Council and Panama Canal Commission -- 1985 FLRAdec NG
[ v17 p890 ]
The decision of the Authority follows:
17 FLRA No. 116 MARITIME METAL TRADES COUNCIL Union and PANAMA CANAL COMMISSION Agency Case No. 0-NG-946 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 issues concerning the negotiability of five Union proposals. Upon careful consideration of the entire record, including the parties' contentions, /1/ the Authority makes the following determinations. Union Proposal 1 Professional employees are authorized to cash personal checks at the Commission's Treasury or its branches in amounts up to $1,000.00. Two returned checks not the fault of the banking institution will be cause for revocation of personal check cashing privileges for a period up to six months. Union Proposal 2 The Commission will do everything it can to see that professional employees are authorized to cash personal checks at the Commission's Treasury or its branches in amounts up to $1,000.00. Two returned checks not the fault of the banking institution will be cause for revocation of privileges for a period up to six months. The Commission will report to the Union weekly on its progress in achieving this goal. Union Proposal 1 would authorize professional employees personal check cashing privileges at the Agency's Treasury and/or its branches of up to $1000.00. Union Proposal 2 would require the Agency to do everything it can to ensure this result if the Agency ascertains that the proposal could not be implemented due to the regulations of an outside authority. The record indicates that presently employees have limited check cashing privileges at the Agency. The sole contention of the Agency is that personal check cashing is not a condition of employment within the meaning of section 7103(a)(14) of the Statute, and therefore is outside the scope of bargaining. The Union contends that personal check cashing is a condition of employment, and, alternatively, that the Agency's past practice of providing personal check cashing privileges makes such matter a condition of employment. The duty to bargain under the Statute extends only to "conditions of employment," i.e., personnel policies, practices and matters affecting working conditions. In construing that statutory phrase, the Authority has found proposals which concern matters directly affecting "the work situation and employment relationship" of bargaining unit employees to be within the duty to bargain. E.g., National Treasury Employees Union and Internal Revenue Service, 3 FLRA 693 (1980). See also American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 606 (1980), enforced as to other matters sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982). By their terms and effect, the disputed proposals do not concern personnel policies, practices, or matters affecting working conditions of unit employees. In this regard, the Authority concludes that personal check cashing is a matter which has no direct relationship to the work situation and the employment relationship of unit employees. Rather, such matter principally relates to activities of employees involved in non-work activities while in non-duty status. Cf. International Association of Fire Fighters, AFL-CIO, CLC, Local F-116 and Department of the Air Force, Vandenberg Air Force Base, California, 7 FLRA 123 (1981) (wherein the Authority concluded that a proposal requiring the agency to grant off-duty personnel and their dependents hunting and fishing recreation on the facility did not concern matters which were a condition of employment because there was no relationship to the work situation or employment relationship) and National Federation of Federal Employees, Local 1363 and United States Army Garrison, Yongsan, Korea, 12 FLRA 635 (1983) (wherein the Authority concluded that a proposal regarding the dispensation of alcoholic beverages in NAFIs did not concern matters which were conditions of employment within the meaning of section 7103(a)(14) of the Statute, since such matters principally relate to activities of employees involved in non-work activities while in non-duty status). The Union asserts its proposals are to the same effect as the proposal in National Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA 139 (1980), enforced sub nom. Department of Defense, Department of the Army v. FLRA, 685 F.2d 641 (D.C. Cir. 1982), wherein the Authority concluded that the matter of ration control was a "condition of employment" within the meaning of section 7103(a)(14) of the Statute. Such matter was found to be directly related to the "reasonable standards of health and decency" for unit employees serving in certain locations required by an agency policy as a precondition to the employment relationship. In the circumstances of the present case, to the contrary, the policies of the Agency regarding personal check cashing privileges have not been shown in the record to be a precondition to the employment relationship. Nor can the Union's additional argument that personal check cashing has become a condition of employment because of the Agency's past practice of providing this service be sustained. The mere fact that an agency may unilaterally provide such a service does not, per se, make such a matter a condition of employment subject to the duty to bargain under the Statute, i.e., a personnel policy or practice or matter affecting working conditions of employees in the bargaining unit. Cf. National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981) (Union Proposal 4) (wherein the Authority concluded that the mere fact that an agency may, pursuant to statutory authority, permit payroll allotments for any legal purpose does not mean that all such allotments constitute conditions of employment over which it has a duty to bargain). Hence, the Authority finds that the disputed proposals regarding personal check cashing privileges do not concern matters which are conditions of employment within the meaning of section 7103(a)(14) of the Statute. Therefore, the Agency is not obligated to bargain with respect to the proposals. Union Proposal 3 The Commission hereby adopts the travel regulations of the Department of State applicable to Federal Government employees working overseas. Union Proposal 4 The Commission will do everything it can to adopt the travel regulations of the Department of State applicable to Federal Government employees working overseas. The Commission will make quarterly reports to the Union on its progress in achieving the goals set forth in this article. Union Proposal 3 would require the Agency to adopt the travel regulations of the Department of State applicable to that agency's employees working overseas. Union Proposal 4 would require the Agency to do everything it can to ensure this outcome. Presently, the Agency follows the Federal Travel Regulations (FTRs) which 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. The Union's stated purpose of these proposals is to have the Agency supplant its present policy of following the FTRs with a policy of following State Department regulations instead. 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. 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). See American Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446 (1983). The Union contends that, since the Agency here, before the passage of the Panama Canal Act of 1979, was a government controlled corporation and therefore was not covered under the FTRs issued under the authority of 5 U.S.C. 5701-5709, it is questionable whether Congress intended the Agency to come under the FTRs by the passage of the Panama Canal Act. However, the Union's contention is without merit. The passage of Panama Canal Act of 1979 converted the Agency into an executive agency. Panama Canal Act, Pub. L. No. 96-70, Sec. 1101, 93 Stat. 452, 456 (1970). Chapter 57 of title 5 grants, in relevant part, executive agencies the authority to provide travel expenses to their employees pursuant to the FTRs, the regulations implementing that statutory provision. Therefore, the Agency here, as an executive agency, must follow the FTRs. /2/ Union Proposal 3, thus, is contrary to Government-wide regulations and, consequently, outside the duty to bargain. According to the Union's stated intent, Union Proposal 4 would require the Agency to do whatever it can, including suggesting to Congress that a legislative change permitting the Agency to adopt the travel regulations of the Department of State is advisable. The Authority has held in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA 409 (1982), that matters specifically provided for by law or which would require modification of existing legal or regulatory provisions are not within the duty to bargain. According to the reasoning in the Office of Personnel Management case, proposals concerning influencing the content of Government-wide regulations to affect conditions of employment are outside the duty to bargain because the relationship between such efforts, on one hand, and changes in personnel policies, practices, and matters affecting working conditions, on the other hand, is, at best remote and speculative. Since, as stated earlier, the FTRs are Government-wide regulations within the meaning of section 7117(a), the Agency has no obligation to bargain over their modification for the reasons more fully set forth in Office of Personnel Management. Union Proposal 5 The Commission will do everything it can to see that a professional employee shall continue to receive official mail at his work station. Official mail includes, but is not limited to, letters, journals, magazines and newspapers which relate to the employee's performance of his official duties. The purpose of the Union's proposal is to define what material constitutes official mail, i.e., mail which relates to the employee's performance of official duties. In National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255 (1979), the Authority held that in the context of section 7106(b)(1) /3/ the "means" of performing work refers to any instrumentality, including an agent, tool, device, measure, plan, or policy used by the agency for the accomplishing or the furthering of the performance of its work. Cf. American Federation of Government Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone, Arsenal, Alabama, 10 FLRA 440 (1982) (Union Proposal 3) (a proposal requiring the acquisition and/or use of certain taped documents and teletype-writer equipment, clearly concerned the "technology, methods, and means of performing work" within the meaning of section 7106(b)(1) of the Statute). It is clear that under section 7106(b)(1) of the Statute the Agency has the right to determine the tools used in performance of the Agency's work. In this respect, the Authority concludes, in agreement with the Agency, that Union Proposal 5 insofar as it would establish what outside information is necessary to perform official duties and, thus, the tools to be used in performing the Agency's work, violates the Agency's right to determine its means of performing work under section 7106(b)(1) of the Statute. /4/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., May 8, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union requests a hearing before the Authority apparently based on certain alleged factual discrepancies in the record, such as availability of banking facilities for bargaining unit employees. However, such information is not relevant to a determination of whether a matter is within the scope of bargaining under the Statute, i.e., consistent with law or applicable rule or regulation. Further, it is well established that the parties bear the burden of directing the Authority to the laws, regulations and other authorities relevant to the statutory obligation to bargain. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 at 891 (D.C. Cir. 1982), affirming National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). /2/ In this respect, the Authority, contrary to the Union's argument, agrees with the Agency's contention that the educational travel benefits specifically provided for in the Panama Canal Act at section 1207 indicate that when Congress intended to exempt the Agency from the FTRs, such intent was clearly expressed. /3/ Section 7106 provides in relevant part: Sec. 7106. Management rights (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (1) at the election of the agency, . . . on the technology, methods, and means of performing work(.) /4/ In view of this decision, it is unnecessary to address the additional contentions of the Agency with respect to the negotiability of the proposals.