21:1105(127)NG - NFFE and DOI, Geological Survey, Eastern Mapping Agency -- 1986 FLRAdec NG

[ v21 p1105 ]
The decision of the Authority follows:

 21 FLRA No. 127
                                               Case Nos. 0-NG-746 
                         I.  Statement of the Case
    These cases are before the Authority because of negotiability appeals
 filed under section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concern the
 negotiability of four Union provisions disapproved by the Agency head
 pursuant to section 7114(c) of the Statute.  One of these disapproved
 provisions, Provision 3, concerns the payment of travel and per diem to
 employees engaged in various labor-management relations activities.  The
 Union appealed the Agency head's determination on two parts of that
 provision in Case No. 0-NG-746 and the remaining three parts of that
 provision in Case No. 0-NG-748 along with the other three provisions.
 In these circumstances, the Authority deems it appropriate to
 consolidate the two cases in the interest of expeditious handling and
 conservation of resources.
                             II.  Provision 1
          Article 13, Section 6b.  Any disciplinary action resulting in
       removal shall not be effected against the employee for at least
       ten (10) working days from the receipt of the letter from the
       deciding official.
                       A.  Positions of the Parties
    The Agency contends that under 5 U.S.C. Section 7513(b)(1) it has the
 right to remove immediately an employee where there is reasonable cause
 to believe that such employee has committed a crime for which a sentence
 of imprisonment may be imposed.  By mandating a ten-day delay in such
 removal action, Provision 1 directly interferes with the Agency's right
 to discipline under section 7106(a)(2)(A) of the Statute.  The Agency
 contends further that, since the imposition of a ten-day delay in
 effecting a removal action results in the Agency being required to
 assign such employee to perform regular duties or to administrative
 leave, Provision 1 also violates the Agency's right to assign under
 section 7106(a)(2)(A).
    The Union argues that the provision is a negotiable "procedure"
 pursuant to section 7106(b)(2) and furthermore is an appropriate
 arrangement, under section 7106(b)(3) of the Statute, for an employee
 adversely affected by the exercise by management of its right to remove.
                               B.  Analysis
                           1.  Management Rights
    Under 5 U.S.C. Section 7513(b)(1) the usual thirty-day advnace notice
 of an intent to take an action against an employee is suspended when
 there is reasonable cause to believe that employee has committed a crime
 punishable by imprisonment.  In such circumstances an agency may
 immediately remove that employee.  Provision 1, however, does not make
 an exception for such a situation, nor does the Union indicate that
 application of the provision would be suspended in such circumstances.
 Consequently, it must be concluded that the provision contravenes the
 clear legislative mandate that employees reasonably believed to have
 committed certain crimes be terminated without delay.  The failure of
 the provision to acknowledge management's authority in that situation
 substantively interferes with management's rights to take appropriate
 disciplinary action against, and to remove employees under section
 7106(a)(2)(A) of the Statute.  Thus, Provision 1 does not constitute a
 negotiable procedure under section 7106(b)(2) of the Statute.  See
 American Federation of Government Employees, AFL-CIO and Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604
 (1980), enforced 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 (1982).
    Of equal significance, in the Authority's view, is the impact of the
 provision upon management's rights to direct employees and to assign
 work under section 7106(a)(2)(A) and (B) of the Statute.  Management, at
 least in part, exercises its authority to assign work and to direct
 employees by holding them accountable for meeting the standards set by
 management for the performance of their work.  Tidewater Virginia
 Federal Employees Metal Trades Council and Navy Public Works Center,
 Norfolk, Virginia, 15 FLRA 343, 344 (1984).
    In the circumstances addressed by Provision 1, the concerned
 employees are on notice that management has decided, after all avenues
 of appeal have been followed, to terminate them and that their
 separation date has been fixed.  Consequently, in such circumstances,
 management would have no effective method of holding those employees
 accountable for their failure or refusal to carry out assigned work
 during the prescribed period of ten additional workdays.
    Further, since such employees could refuse, with impunity, to carry
 out their assignments, the adverse affect on the effective and efficient
 conduct of Government operations is a major consideration.  That is,
 employees involved are to be separated for "such cause as will promote
 the efficiency of the service," 5 U.S.C. Section 7513(a), yet the
 provision requires their retention in a paid status for ten additional
 days after the termination decision has been reached.  The provision,
 therefore, must be considered inimical to the effective conduct of
 public business.
    Turning now to whether Provision 1 constitutes an appropriate
 arrangement within the meaning of section 7106(b)(3) of the Statute, the
 Union asserts that the provision's purpose is "that an employee be given
 ten working days following a letter informing him/her of the employer's
 final decision to separate him/her, to clear any work on his/her desk
 and get personal affairs in order before the separation is effective."
 Union Petition for Review at 1.  The provision, therefore, would
 ameliorate, to a very limited degree, the adverse affect on employees of
 management's exercise of its statutory right to remove employees for
 cause.  On balance however, the significant deleterious affect on
 management's rights to impose disciplinary actions including removing
 employees, to direct employees, and to assign work, and on the
 efficiency and effectiveness of Government operations is
 disproportionate to the limited benefit employees would receive from the
 proposed arrangement.  See National Labor Relations Board Union and
 National Labor Relations Board, Office of the General Counsel, 18 FLRA
 No. 42 (1985).
                              C.  Conclusion
    Consequently, as Provision 1 excessively interferes with management
 rights, it does not constitute either a negotiable procedure under
 section 7106(b)(2) or an appropriate arrangement within the meaning of
 section 7106(b)(3).  Provision 1 is therefore outside the duty to
                             III.  Provision 2
          Article 19, Section 10a.  DETAILS, manner:  In the interests of
       effective employee utilization, details to positions or work
       assignments requiring higher or different skills will be based
       upon bona fide needs and will be consonant with the spirit and
       intent of this Article, applicable regulations, and the merit
       system.  Details may be used to meet emergencies or situations
       occasioned by abnormal workload, changes in mission or
       organization, or absences of personnel.
                       A.  Positions of the Parties
    The Agency contends that Provision 2 is inconsistent with its rights,
 pursuant to section 7106(a)(2)(A) and (B) of the Statute, to assign
 personnel and work.
    The Union maintains that the provision, in effect, only requires
 adherence to law and regulations in detailing employees and thus is a
 procedure to be followed by management in exercising its authority under
 the Statute.  The Union further states that the list of circumstances in
 the provision "is not exhaustive, but neither is it exclusive." Union
 Reply Brief at 3.
                               B.  Analysis
    The Union's assertion that the part of the provision listing the
 situations where details may be appropriate is not intended to be
 "exclusive" is inconsistent with the express language of the provision.
 That is, if the Union's intent was to limit the resort to details to
 those circumstances authorized by regulations, the list of circumstances
 in the provision would have been unnecessary.  Mere reference to the
 applicable regulations would have sufficed.  However, the Union chose to
 incorporate a list of situations in which details "may be used," stating
 that such a list is consistent with "the spirit and letter" of Federal
 Personnel Manual (FPM) Chapter 300, Subchapter 8.  Reference to the
 cited part of the FPM reveals that details are authorized in other
 circumstances not listed in the provision.  Specifically, FPM Chapter
 300, Subchapter 8-3.a authorized details for the following additonal
 purposes:  special projects or studies, pending official assignment,
 pending description and classification of new position, pending security
 clearance, and for training purposes.  The omission of these
 circumstances, while including others listed in the FPM compels the
 conclusion that the provision is intended to circumscribe management's
 ability to detail.  Therefore the proposal is in conflict with
 management's rights to assign employees and to assign work.
                              C.  Conclusion
    The Authority concludes, based on the reasoning set forth that
 provision 2 is inconsistent with rights reserved to management by
 section 7106(a)(2)(A) and (B) of the Statute and, consequently, is
 outside the duty to bargain.
                             IV.  Provision 3
          In addition, necessary travel and per diem expenses to the
       following proceedings will be borne by the Employer:
          a.  Basic negotiations
          b.  Impact and implementation bargaining sessions.
          c.  Mid-term contract bargaining sessions.
          d.  Impasse proceedings (including mediation)
          e.  FLRA proceedings (i.e., ULP hearings).  /1/ (Footnote
                       A.  Positions of the Parties
    The Agency argues generally that all existing contractual provisions
 authorizing travel and per diem payments to union representatives
 engaged in labor-managment relations activities should be declared null
 and void in view of the Supreme Court's decision in Bureau of Alcohol,
 Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983), invalidating
 the basis on which such payments were found to be negotiable.
    The Agency specifically contends that Provision 3 is not within the
 duty to bargain for the following reasons:
    (a) It does not concern conditions of employment within the meaning
 of section 7103(a)(14) of the Statute because payment of travel expenses
 is specifically provided for by law;
    (b) it is inconsistent with Federal law and Government-wide
    (c) it interferes with the Agency's right to determine its budget
 under section 7106(a)(2)(1);  and its right to assign under section
    (d) it is inconsistent with an Agency regulation for which a
 compelling need exists.
    The Union asserts that the provision concerns conditions of
 employment and addresses a matter over which agencies have
 administrative discretion.  The Union also contends that a finding that
 the provision is negotiable would be "wholly consistent" with the
 Supreme Court's holding in BATF.  Further, the Union explains that
 Provision 3, by its terms, would only require the payment of "necessary"
 per diem and travel expenses.  Finally, the Union argues that the
 potential increase in costs resulting from the provision does not, per
 se, make it nonnegotiable as a violation of the Agency's right to
 determine its budget.
                               B.  Analysis
           1.  Enforcement of Travel and Per Diem Provisions in
                Existing Collective Bargaining Agreements
    No claim is made that Provision 3 is improperly before the Authority.
  Thus, the present negotiability appeal is the appropriate vehicle to
 determine its negotiability.  While the Agency argues that all existing
 contractual provisions concerning travel and per diem payments to union
 representatives should be declared null and void, it adverts to no
 existing contractual provisions against which such declaration could be
 made in the context of this negotiability appeal.  Moreover, the
 question of enforcement of any existing contractual provisions
 concerning travel and per diem payments to union representatives should
 be raised in appropriate proceedings other than a negotiability appeal.
 American Federation of Government Employees, AFL-CIO, Local 2736 and
 Department of the Air Force, Headquarters, 379th Combat Support Group
 (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 (1984).
                       2.  Conditions of Employment
    The Agency involved in this case makes an essentially identical
 "conditions of employment" argument to that made by the Agency in
 National Treasury Employees Union and Department of the Treasury, U.S.
 Customs Service, 21 FLRA No. 2 (1986).  The Authority rejected that
 argument in Customs Service and it is rejected here for the same reasons
 as set forth in that case.
        3.  Inconsistent with Federal Law or Government-wide Rules
                or Regulations
    The Agency contends, in essence, that under the Travel Expense Act
 and the Federal Travel Regulations (FTRs) an "official business"
 determination is dependent on the particular facts involved in each
 individual situation.  Consequently, such a determination is not a
 matter of unlimited discretion on the part of the Agency.
    For reasons set forth in its decision in Customs Service, the
 Authority has found that agencies have discretion, under the Travel
 Expense Act and implementing regulations, to determine whether, and
 under what circumstances, travel attendant to labor-management relations
 activities is sufficiently within the interest of the United States so
 as to constitute official business and, hence, pay for resulting
 appropriate expenses from Federal funds.  The exercise of that
 discretion is subject to the negotiation process.  The Agency here makes
 no specific argument that the provision does not meet the statutory and
 regulatory standards discussed in Customs Service.  Moreover, as noted
 in the Union's position, the provision envisions case by case
 determinations as to appropriateness of specific travel and expenses
 which are necessary and proper under law and governing regulation.
 Given these circumstances, and for the reasons expressed in Customs
 Service, the Agency's contention that the provision is inconsistent with
 law and Government-wide regulations must be rejected.
                    4.  Conflict with Management Rights
    The Agency's position that the provision interferes with management
 rights, specifically including "the right to assign," is unpersuasive.
 The provision is not concerned with authorization of travel or absence
 from the workplace, but, rather, concerns the payment of travel and per
 diem expenses for travel in connection with the collective bargaining
    The Agency also contends that management decisions on travel and per
 diem are determinations of priorities affecting the Agency's mission.
 The Agency explains that granting travel and per diem expenses for
 labor-management relations activities makes that much less money
 available for mission-related activities.  While the Agency
 characterizes this argument as concerning other management rights, the
 Authority finds this contention is actually directed at budgetary
    The Authority stated, however, in National Treasury Employees Union
 and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2
 (1986), that a "budget" argument must be supported by a substantial
 demonstration that a significant and unavoidable increase in costs, not
 offset by compenstating benefits, will result from implementation of the
 disputed proposal.  Here, no such demonstration has been proffered.  To
 the contrary, it would appear from the record in this case that no
 significant and unavoidable increase would result from the provision,
 particularly in light of the Agency's argument that the provision is
 unnecessary because travel would not be required in the conduct of
 labor-management relations.  Hence, based on Customs Service, the
 Agency's argument cannot be sustained.
                            5.  Compelling Need
    While the Agency states that a compelling need determination is not
 necessary because Provision 3 is inconsistent with applicable law and
 Government-wide regulations the Agency does claim that a compelling need
 exists for its travel regulations.  As to such regulations, the Agency
 argues that a compelling need exists under criterion (c) of section
 2424.11 of the Authority's regulations because its travel regulations
 implement a nondiscretionary mandate to the Agency under law and
 Government-wide regulations.  However, those arguments are based
 essentially on the Agency's view that, since its travel regulations
 parallel applicable law and Government-wide regulations which it
 contends bar negotiation of Provision 3, its regulations must also bar
 negotiation of Provision 3.  The Agency has provided no other basis to
 support its conclusion that a compelling need exists for its
 regulations.  Thus, in view of the decision that Provision 3 is
 consistent with applicable law and Government-wide regulations the
 Authority finds that the Agency has not sustained its compelling need
                              C.  Conclusion
    For the reasons set forth above, and based especially on the findings
 contained in the Decision and Order on Remand in Customs Service, the
 Authority finds Provision 3 to be within the Agency's duty to bargain.
                              V.  Provision 4
       . . .  Excused absence shall be authorized when the activity shuts
       down due to circumstances beyond the agency's control for a short
       period of time.  Instances involving snow storms, floods, lack of
       heat or electricity and similar events are covered by this type of
       excused absence.
                       A.  Positions of the Parties