21:0711(89)NG - AFGE, Local 3106 and Dept. of Agriculture -- 1986 FLRAdec NG
[ v21 p711 ]
The decision of the Authority follows:
21 FLRA No. 89 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3106 Union and U.S. DEPARTMENT OF AGRICULTURE Agency Case. No. 0-NG-916 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and raises issues concerning the negotiability of a single Union proposal. /1/ II. Union Proposal Employees covered by the agreement and required by management, as a condition of employment, to furnish horse and necessary equipment to be used on the job will be entitled to an allowance of: $115.00 per day period the first year of the agreement, $120.00 per pay period the second year of the agreement, $125.00 per pay period the third year of the agreement, for its use. The effective date for payment of this allowance shall be the first full pay period following the beginning of FY 83. A. Positions of the Parties The Agency contends that the proposal violates its right to determine its budget under section 7016(a)(1) of the Statute. The Union contends that the Agency has not met its burden under the test established by the Authority in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (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, 455 U.S. 995 (1982). B. Analysis and Conclusions The Department of Agriculture (the Agency) conducts the Tick Eradication Program (TEP), which is designed to prevent the reestablishment of cattle fever ticks in the United States. The Agency determined that in order to implement the TEP employees would need to travel by horseback into remote areas. Employees who work in this program are therefore required, as a condition of their employment, to maintain a horse, trailer, and other related equipment. At the time this negotiability dispute arose, the Agency was reimbursing those employees for costs incurred in complying this requirement at a rate of $110.00 per day period. /2/ This payment is designed solely to reimburse employees for expenses they would not have had but for the Agency's requirement. For this reason, the "horse allowance" is not a part of an employer's wages. That is, it is not a part of the compensation paid to employees in exchange for their labor. For the same reason, it is not a fringe benefit. Matters such as retirement, life and health insurance are not reimbursable employee expenses, but are part of a total compensation package paid to employees. The Union's proposal requires the Agency to increase the rate of reimbursement for the "horse allowance" to $125.00 over a period of three years. As to the agency's contention that the proposal is nonnegotiable under section 7106(a)(1), the Authority held in Wright-Patterson, that in order to demonstrate that a union proposal directly interferes with management's right to determine its budget it is necessary for the agency either to show that the proposal prescribes the programs and operations to be included in the agency's budget or the amount to be allocated for them, or to make a substantial demonstration that the anticipated increase in costs is significant and unavoidable and is not offset by compensating benefits. It is clear from the record that the proposal concerns a program which already exists, i.e., TEP, and is currently funded by the Agency's budget. Moreover, the proposal does not prescribe the amount to be allocated to this program. Rather it concerns the cost of only one item within that program, i.e., the "horse allowance." /3/ Under the first part of the Wright-Patterson test, therefore, the proposal does not directly interfere with the Agency's right to determine its budget. Under the second part of that test, the Agency has not demonstrated that implementation of the Union's proposal would result in a significant increase in costs. In particular, while the Agency claims that the proposal would require an additional $50,000 for the "horse allowance" /4/ that figure represents only 1.7% of the total budget for the TEP /5/ and an even smaller percentage of the budget for the Animal and Plant Health Inspection Service, which administers the program. /6/ It is not necessary, therefore, to consider whether the alleged increase in costs is outweighed by compensating benefits. Consequently, in this respect also the Union's proposal does not directly interfere with the right of the Agency to determine its budget under section 7016(a)(1) of the Statute. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 747, 764-66 (1980) (an agency had not demonstrated significant and unavoidable increased costs based upon the percentage increase in costs to that agency for the fiscal year). See American Federation of Government Employees, AFL-CIO, Local 3477 and Commodity Futures Trading Commission, 21 FLRA No. 18 (1986) (Authority held that even if a proposal required the agency to budget larger amounts for its incentive awards program, the agency had not shown that such an increase would not be offset by compensating benefits). Since the Agency has not demonstrated that the Union's proposal would directly interfere with its right to determine its budget, the proposal is within the Agency's duty to bargain under the Statute. III. Order Accordingly, pursuant to Section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning the proposal. /7/ Issued, Washington, D.C., May 9, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member Federal Labor Relations Authority --------------- FOOTNOTES$ --------------- (1) The Agency has requested permission to file an additional submission in this case. However, the Authority finds that no additional submissions are necessary and, pursuant to Section 2424.8 of its Rules and Regulations, denies the Agency's request. (2) Agency Statement of Position at 1-2; Union Reply to Agency Statement of Position at 2. (3) See Attachment to Agency Statement of Position. (4) Agency Statement of Position at 2. (5) Attachment to Agency Statement of Position. The "Grand Total" of all costs for the TEP is stated therein as $2,809.068. The alleged increase in costs for the "horse allowance" of $50,000 is 1.7% of the total. As the Union points out, it is unclear whether that increase in costs represents the additional amount needed for the first fiscal year or for all three fiscal years covered by the proposal. If it is for all three years, of course, the increase is even less significant. (6) See Appendix To The Budget For Fiscal Year 1983 For The Animal And Plant Health Inspection Service attached to the Union Reply to Agency Statement of Position. (7) In deciding that the proposal is within the duty to bargain, the Authority makes no judgment as to its merits.