20:0803(98)NG - AFGE Local 1799 and Army, Aberdeen Proving Ground, MD -- 1985 FLRAdec NG
[ v20 p803 ]
The decision of the Authority follows:
20 FLRA No. 98 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1799 Union and U.S. DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, MARYLAND Agency Case No. 0-NG-980 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 raises issues concerning the negotiability of one Union proposal. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal ARTICLE 10, Section 9 If an employee is required to work unscheduled overtime after his normal 8-hour tour of duty and was not notified the previous day, transportation to his home will be provided by the Employer, if necessary. The Agency contends that the proposal is nonnegotiable because it is inconsistent with 31 U.S.C. 1344 /2/ (formerly 31 U.S.C. 638a(c)(2) /3/). 31 U.S.C. 1344 provides that an appropriation may be expended to maintain, operate and repair passenger motor vehicles or aircraft of the United States Government that are used only for an official purpose and that an official purpose with certain very limited exceptions does not include transporting officers or employees of the Government between their domiciles and places of employment. The Authority in agreement with the Agency finds that the specific language of section 1344 precludes the Agency by statute from providing transportation between an employee's place of employment and his domicile. Moreover, as to the Union's contention that section 1344 itself provides for an exception to the prohibition of providing employees transportation from work to home when the transportation is approved by the head of the Agency, the Authority notes that the cited exception in section 1344(a)(2) pertains only to "officers or employees performing field work" and not to employees required to work unscheduled overtime. /4/ Finally, the Authority has previously determined that transportation of employees from a point between their homes and their workplaces would not be inconsistent with 31 U.S.C. 638a(c)(2) if (1) such transportation of employees were incident to use of the Government vehicle for official purposes as determined by the agency within its administrative discretion; and (2) such transportation of employees were itself within the Government's interest as determined by the agency within its administrative discretion, subject to collective bargaining. See American Federation of Government Employees, AFL-CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982) (Proposal 1) cited in U.S. Department of Transportation, Federal Aviation Administration, Airways Facilities Sector, Chicago O'Hare Airport, Chicago, Illinois and Professional Airways Systems Specialists, Local 301, 16 FLRA No. 133 (1984). In Board of Immigration Appeals, the Authority found a proposal involving shuttle bus transportation of employees from a point between their homes and workplace to be negotiable because in the circumstances presented such transportation of employees was incident to use of a Government vehicle for official purposes, and such transportation of employees was itself within the Government's interest as determined by the agency within its administrative discretion. However, in the instant case, the record does not indicate that the proposed transportation of employees from work to their domicile is incident to an authorized use, but rather it appears to be the primary use. Based upon the foregoing, the Union's proposal is not within the duty to bargain under the Statute because it is contrary to law, i.e., 31 U.S.C. 1344. 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. /5/ Issued, Washington, D.C., December 4, 1985. (s)--- Henry B. Frazier III, Acting Chairman (s)--- William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency withdrew its allegation of nonnegotiability on one other proposal and the Union withdrew its appeal as to three other proposals. These proposals therefore will not be considered further herein. /2/ 31 U.S.C. 1344 provides: 1344. Passenger motor vehicle and aircraft use (a) Except as specifically provided by law, an appropriation may be expended to maintain, operate, and repair passenger motor vehicles or aircraft of the United States Government that are used only for an official purpose. An official purpose does not include transporting officers or employees of the Government between their domiciles and places of employment except-- (1) medical officers on out-patient medical service; and (2) officers or employees performing field work requiring transportation between their domiciles and places of employment when the transportation is approved by the head of the agency. (b) This section does not apply to a motor vehicle or aircraft for the official use of-- (1) the President; (2) the heads of executive departments listed in section 101 of title 5; or (3) principal diplomatic and consular officials /3/ According to the legislative history of the present statutory provision, the change from 31 U.S.C. 638a(c)(2) to 31 U.S.C. 1344 was made solely for the purpose of clarity and the elimination of unnecessary words. H.R. Rep. No. 97-651, 97th Cong., 2d Sess. 68-69 (1982), reprinted in 1982 U.S. Code Cong. & Ad. News 1962-1963. /4/ See Comptroller General Decision B-210555.10 (August 19, 1985) in which the Comptroller General stated: In our decision in 62 Comp.Gen. 438 (1983), we concluded that some of our previous decisions interpreting 31 U.S.C. 1344 included "overly broad language which implied exceptions to the statutory prohibition which we did not intend." We then set out to restate the law as unequivocally as possible. We held that unless certain narrow exceptions apply, "agencies may not properly exercise administrative discretion to provide home-to-work transportation to their officers and employees, unless otherwise provided by statute." 62 Comp.Gen. at 447. Section 1344(a) of title 31 provides exemptions from the home-to-work prohibition for medical officers performing outpatient services and certain employees performing field work ... Further, Section 1344(b) exempts a small group of officials from the home-to-work prohibition. That group includes the President, the heads of cabinet departments specifically listed in section 101 of title 5, and "principal diplomatic and consular officials." 31 U.S.C. 1344(b) (1982) ... /5/ In view of the decision herein, it is unnecessary to address the Agency's additional contention regarding the Union's proposal.