24:0178(24)NG - IFPTE Local 12 and Navy, Puget Sound Naval Shipyard -- 1986 FLRAdec NG



[ v24 p178 ]
24:0178(24)NG
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