24:0178(24)NG - IFPTE Local 12 and Navy, Puget Sound Naval Shipyard -- 1986 FLRAdec NG
[ v24 p178 ]
The decision of the Authority follows:
24 FLRA No. 24 INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL 12 Union and DEPARTMENT OF THE NAVY PUGET SOUND NAVAL SHIPYARD Agency Case No. 0-NG-1003 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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of a Union proposal to rescind changes in the Agency's regulations regarding administration of travel advances. We find that the proposal is negotiable. II. Union Proposal The Union in essence proposes that there be no changes in the Agency's practice regarding the payment of travel and per diem advances which existed prior to the issuance of proposed Shipyard Notice, NAVSHIPYDPUGETNOTE 4650. III. Positions of the Parties Preliminarily, the Agency contends that the Union's petition for review is deficient and should be dismissed. Substantively, the Agency contends that the Union has clearly and unmistakably waived its right to bargain over the matter at issue. It also contends that the Union's proposal conflicts with an Agency regulation for which there is a compelling need. The Union essentially argues that the Agency's contentions are all without merit. IV. Analysis A. Preliminary Contention The Agency contends that the Union's petition is deficient and should be dismissed because it does not set forth the matter proposed to be negotiated in sufficiently specific and delimited form as to be subject to a negotiability decision by the Authority. However, it is clear from the record and the parties' submissions including the Agency's substantive contentions that the parties understood that the Union wants no change in existing practice regarding the administration of travel advances. For example, the Union's petition includes a reference to correspondence between the parties indicating that the "Union's proposals will be no change in existing practice." See Union's Petition for Review, Enclosure 6. Therefore, the Union's proposal is sufficiently specific and delimited so that the Authority can measure what is proposed for negotiation against specific statutory or regulatory provisions alleged to bar negotiations. See National Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA 68 (1980), remanded as to other matters sub nom. Department of Defense, Department of the Army v. FLRA, 685 F.2d 641 (D.C. Cir. 1982). B. Substantive Contentions 1. Waiver The record in this case does not provide any basis for substantiating the Agency's assertion that the Union waived its right to bargain over the matter at issue in the parties' negotiated agreement. The Agency may, of course, pursue this question in the context of other appropriate proceedings. See 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 at 306 n. 6 (1984). 2. Compelling Need for Agency Regulation Under Section 7117(a)(2) NAVSHIPYDPUGETNOTE 4650 contains Department of the Navy directions on travel administration which would require five specific changes in the Agency's existing practice. Travel advances would be limited to 80% of the estimated per diem and miscellaneous expense costs; advances for per diem/actual expense allowances would not made for one day trips (where travel commences and ends the same calendar day) but could be made on a case-by-case basis as long as the total to be advanced is more than $50; travel advances would not be paid earlier than three working days prior to commencement of travel; travel claim settlement vouchers would be required to be submitted to the Disbursing Officer within 10 calendar days after completion of travel; and travelers who receive overpayments of travel advances will be required to make repayment within 15 calendar days from the date of the Disbursing Officer's letter of notification. Under the Union's proposal, travel advances would remain at the current limitation of 90% of the estimated per diem and miscellaneous expense costs; there would continue to be no limitation on advances for one day travel; travel advances would continue to be paid no earlier than 10 working days prior to commencement of travel; travel claim settlement vouchers would continue to be required to be submitted to the Disbursing Officer within 15 calendar days after the completion of travel; and travelers who receive overpayments of travel advances would continue to be required to make payments within 20 calendar days from the date of the Disbursing Officer's letter of notification. It is well established that when an Agency alleges a proposal is nonnegotiable because it conflicts with an Agency regulation for which a compelling need is claimed to exist under section 7117(a)(2), the Agency bears the burden of supporting such allegation. American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 450 (1980). We find that the Agency in this case has failed to demonstrate that a compelling need exists for the regulation raised as a bar to negotiations. The Agency's compelling need contention is based on its arguments that: (1) its regulation is essential, as distinguished from helpful or desirable, to the accomplishment of its mission or the execution of its function in a manner which is consistent with the requirements of an effective Government; and (2) the regulation implements a mandate under law or outside authority which is essentially nondiscretionary in nature. See section 2424.11(a) and (c) of the Authority's Rules. In support of its position that the regulation is essential, as distinguished from helpful or desirable, to achieving certain purposes, the Agency argues only that its regulation would result in a reduction of the frequency of overpayments of travel advances, thereby saving the Agency both time and money associated with the collection of overpayments. Even assuming that the regulation would have the effect claimed by the Agency, it has not demonstrated that its regulation is essential, as distinguished from merely helpful or desirable, to achieving its objective of reducing the costs associated with the collection of overpayments of travel advances. It does not indicate how this objective could not be achieved through any means other than this regulation, such as, for example, more accurate travel estimates. In failing to demonstrate that, in the absence of its regulation, the Agency would be unable to save the time and money associated with travel advance overpayments, it must be concluded that the Agency has not met its burden of showing that its regulation is essential to the accomplishment of that objective. See, for example, American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217, 220 (1981). As to its contention that its regulation implements a mandate under law or outside authority which is essentially nondiscretionary in nature, the Agency provides no persuasive evidence to support a finding of compelling need. Rather, it merely asserts that Congress and the Office of Management and Budget have "mandated" improvements in the administration of travel. The Agency does not establish that if such a mandate exists, the manner of its implementation is essentially nondiscretionary in nature. See, for example, National Treasury Employees Union, Chapter 26 and Internal Revenue Service, Atlanta District, 22 FLRA No. 30 (1986) (Union Proposals 3 and 4). V. Conclusion For the reasons and cases cited in the foregoing analysis, we find no merit in the Agency's contention that the Union's petition is deficient, or in its claim that a compelling need exists for its regulation, under section 7117(a)(2), so as to bar negotiations concerning the Union's proposal. Moreover, insofar as the Agency believes that the Union has waived its right to bargain over the matter at issue in this case, it may pursue that matter in the context of other appropriate proceedings. Therefore, the Union's proposal is within the duty to bargain. VI. Order 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 Union's Proposal. /*/ Issued, Washington, D.C., November 21, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In finding this proposal to be within the duty to bargain, the Authority makes no judgment as to its merits.