25:0091(6)CA - Interior, Washington, DC and Bureau of Reclamation, Washington, DC and Bureau of Reclamation Mid-Pacific Region and NFFE Local 951 -- 1987 FLRAdec CA



[ v25 p91 ]
25:0091(6)CA
The decision of the Authority follows:


 25 FLRA No. 6
 
 DEPARTMENT OF THE INTERIOR 
 WASHINGTON, D.C.
 
 and
 
 BUREAU OF RECLAMATION 
 WASHINGTON, D.C.
 
 and
 
 BUREAU OF RECLAMATION 
 MID-PACIFIC REGIION
 Respondents
 
 and
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 951
 Charging Party
 
                                            Case No. 9-CA-50283
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority, in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations, based on a stipulation of facts by the parties, who have
 agreed that no material issue of fact exists.  Briefs for the
 Authority's consideration were filed by the Respondents and by the
 General Counse.
 
    The complaint alleges that Respondent Bureau of Reclamation,
 Mid-Pacific Region (Respondent Region) violated section 7116(a)(1) and
 (5) of the Federal Service Labor-Management Relations Statute (the
 Statute) by failing and refusing to bargain in good faith with the
 National Federation of Federal Employees, Local 951 (the Union) when it
 unilaterally implemented changes in working conditions by rescinding its
 policy of advancing 80 percent of estimated authorized travel expenses
 and establishing a new policy limiting employee travel advances to
 $25.00 per day.  The complaint also alleges that Respondent Department
 of the Interior (Respondent Interior) and Respondent Bureau of
 Reclamation (Respondent Bureau) violated section 7116(a)(1) and (5) of
 the Statute by interfering with Respondent Region's obligation to
 bargain with the Union.  Finally, the complaint alleges that Respondent
 Region violated section 7116(a)(1) and (5) of the Statute by failing to
 designate a duly authorized representative empowered to negotiate with
 the Union over the change in the amount of travel advances.
 
                                II.  Facts
 
    The Union is the certified exclusive representative of a unit of
 employees of the Mid-Pacific Region, a subcomponent of the Department of
 the Interior and the Bureau of Reclamation.  On or about January 3,
 1985, the Mid-Pacific Region notified all employees that a policy of
 limiting travel advances to $25.00 per day for frequent travelers, those
 who take two or more trips a year, would begin on March 1, 1985.  This
 change in the amount of travel advance was in response to a
 Government-wide cash management effort using charge cards to reduce the
 need for a full cash advance.  This program was implemented based on
 instructions from Respondent Interior and Respondent Bureau concerning
 travel advances and the government travel charge card program.
 Employeees were advised that the Mid-Pacific Region intended to rescind
 its previous policy and practice of advancing unit employees 80 percent
 of estimated authorized travel expenses and establish a new policy
 limiting employees' travel advances to $25.00 per day.  By letter of
 January 16, 1985, the Region advised the Union of its intention to
 implement these changes.
 
    By letter dated January 31, 1985, the Union requested the Region to
 bargain on the change in travel advances.  Attached to this letter was a
 memorandum submitting eight proposals, one of which read:
 
       5.  The maximum daily cash advance will remain as it is at present
       for those employees who do not volunteer for the Charge Card
       Program and for those who do not qualify for the Program.
 
    On February 7, 1985, representatives of the Union met with a Labor
 Relations Specialist for the Region to discuss the Union's proposals.
 During these discussions the Labor Relations Specialist stated that he
 had no authority to bargain over Union Proposal No. 5.  Since that time,
 the Region has not bargained with the Union over the change in travel
 advances.  On or about March 1, 1985, the Region rescinded its old
 policy of advancing employees 80 percent of estimated authorized travel
 expenses and instituted the new policy limiting employee travel advances
 to $25.00 per day.  The parties stipulated that the Region unilaterally
 implemented the change in travel advance policy before completion of
 collective bargaining negotiations with the Union on the change.
 
    On or about March 5, 1985, the Union proposed to the Region a "Joint
 Statement on Government Charge Card Program" which included the
 following revised proposal:
 
       The maximum daily cash advance will remain at 80% of estimated
       total costs for those employees who do not participate in the
       program.
 
    On March 14, 1985, the Region responded to the Union's March 5 letter
 by stating that the proposal was not previously considered and that
 "(t)he Union's revised proposal, if agreed to, would negate the purpose
 and intent of the Government-wide program." On April 12, 1985, the
 Region advised the Union that Bureau and Departmental instructions
 precluded negotiations on the proposal set forth in the Union's proposed
 Joint Statement.
 
                      III.  Positions of the Parties
 
                  A.  Respondents' Brief to the Authority
 
    The Respondents contend that travel advances are not a condition of
 employment, under section 7103(a)(14)(C) of the Statute, because they
 are specifically provided for by Federal statute and implementing
 Government-wide regulations (GSA travel regulations).  Respondents
 further argue that even if travel advances are conditions of employment,
 Respondents are not required to, and may elect not to, bargain on the
 substance of the change because the change constitutes a method and
 means of performing work under section 7106(b(1) of the Statute.  In
 this regard, they contend that the agency's travel advance policy:  (1)
 constitutes a method and means of carrying out Respondents' "official
 business" and the performance of its work and mission;  and (2) is a
 method and means of carrying out the Government's and the agency's cash
 management policy, a support operation which is directly and integrally
 related to the efficient and economical performance of the agency's
 overall operations and mission.  Additionally, the respondents contend
 that there was a complelling need for the change in travel advance
 policy to comply with a mandate under law when GSA issued temporary
 regulations implementing the new travel and transportation expenses
 payment system providing for charge cards, and Government travel system
 accounts and travelers checks, applicable to agencies that voluntarily
 agreed to participate in the new system.  Finally, Respondents contend
 that there was a compelling need based on policies and directives issued
 by the Office of Management and Budget in Bulletin No. 83-6 (Oct. 22,
 1982), as well as certain Treasury regulations.
 
            B.  Counsel for the General Counsel's Brief to the
 
                Authority
 
    The General Counsel contends that the Respondents' unilateral change
 in the amount of travel advances violated section 7116(a)(1) and (5) of
 the Statute by changing a condition of employment.  The General Counsel
 asserts that the subject of travel advances is not excluded by section
 7103(a)(14)(C) of the Statute from the duty to bargain over conditions
 of employment.  Further, the General Counsel argues that the amount of
 travel advances does not constitute a method and means of performing
 work under section 7106(b)(1) of the Statute because no evidence was
 presented by the Respondents that bargaining on the amount would
 interfere with those rights.
 
    As to Respondents' compelling need arguments, the General Counsel
 argues that nothing in the regulations cited by Respondents imposes a
 specific $25.00 limit on the amount of travel advances or demonstrates
 that the regulations are essential as distinguished from helpful or
 desirable, to the accomplishment of the mission or the execution of
 functions of the agency.  Additionally, the General Counsel takes the
 position that the Department and the Bureau violated section 7116(a)(1)
 and (5) of the Statute by issuing instructions to the Region to limit
 travel advances to $25.00 per day, thereby precluding the Region from
 fulfilling its statutory bargaining obligation with the Union.  Finally,
 the General Counsel argues that the Region violated section 7116(a)(1)
 and (5) by failing to provide a representative at the bargaining table
 empowered to negotiate and enter into agreements with the Union, as
 required by section 7114(b)(2) of the Statute.
 
                               IV.  Analysis
 
                        A.  Condition of Employment
 
    The proposal clearly involves a condition of employment not excepted
 from the definition of section 7103(a)(14).  Travel advances are covered
 by 5 U.S.C. Section 5705, which is part of the Travel Expense Act.
 While the Travel Expense Act governs the general subject of payment of
 travel expenses for employees traveling on official business, it does
 not specifically address the amount of the per diem to be advanced to
 the employee.  We therefore reject the Respondents' contention that the
 proposal involves a matter specifically provided for by Federal statute
 so as to be excepted from the definition of conditions of employment.
 See National Treasury Employees Union and Department of the Treasury,
 U.S. Customs Service, 21 FLRA No. 2 (1986), petition for review filed
 sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No.
 86-1198 (D.C. Cir. March 27, 1986).  Furthermore, the reduction in the
 amount of travel advances from an estimated 80 percent of costs per day
 to $25.00 per day changes working conditions of unit employees since
 such a reduction could require employees to pay some initial
 out-of-pocket expenses.
 
                  B.  Method and Means of Performing Work
 
    The amount of travel advances does not constitute a method and means
 of performing work under section 7106(b)(1) of the Statute.  We have
 held that in order to constitute matters which may be negotiated only at
 the election of the agency pursuant to section 7106(b)(1), the matters
 must be principally or directly related to the performance of the
 agency's work.  American Federation of Government Employees, AFL-CIO,
 Local 3525 and U.S. Department of Justice, Board of Immigration Appeals,
 10 FLRA 61 (1982) (Union Proposal 1).  The Respondents have not shown
 that bargaining on the amount of travel advances would involve matters
 principally or directly related to the performance of the agency's work.
  Therefore, there is no showing that bargaining on this matter would
 interfere with Respondents' rights to determine the methods and means of
 performing work of the agency.
 
                            C.  Compelling Need
 
    We reject the Respondents' contention that their change in the
 regulation limiting travel advances to $25.00 per day implements a
 nondiscretionary mandate under law or other outside authority so as to
 support a finding of compelling need.  While the regulations relied on
 by the Respondents, OMB Bulletin 83-6, Federal Travel Regulations and
 Treasury Regulations, were issued to help reduce travel and cash
 balances wherever possible, they do not include a limit of $25.00 per
 day on travel advances.  Thus, the limit imposed by the Respondents is
 not mandated by the regulations on which they rely.  See, for example,
 International Federation of Professional and Technical Engineers, Local
 12 and Department of the Navy, Puget Sound Naval Shipyard, 24 FLRA No.
 24 (1986).  Furthermore, the Respondents have not demonstrated that the
 change in the amount of travel advances is essential, as distinguished
 from helpful or desirable, to accomplish their mission.  While the
 Respondents contend that the charge card program offers an opportunity
 to derive substantial savings through cash management, they have not
 demonstrated that the change in limiting travel advances to $25.00 per
 day achieves that objective.  We note that the Respondents are required
 to pay employees for the expenses to which they are entitled under
 appropriate regulations, irrespective of the amount of the travel
 advance.  Moreover, as we recently held, a demonstration of monetary
 savings alone is not sufficient to establish that a regulation is
 essential, as distinguished from helpful and desirable, to the
 accomplishment of the mission or the execution of the functions of an
 agency in a manner which is consistent with the requirements of an
 efficient and effective Government.  See Lexington -- Blue Cross Army
 Depot, Lexington, Kentucky and American Federation of Government
 Employees, AFL-CIO, Local 894, 24 FLRA No. 6 (1986).  Therefore, we
 conclude that the Respondents have not met their burden of showing that
 their regulation meets the compelling need standards.
 
           D.  Whether Respondent Interior and Respondent Bureau
 
                violated section 7116(a)(1) and (5) of the Statute by
 
                interfering with the bargaining obligation of Respondent
 
                Mid-Pacific Region
 
    It is uncontroverted in the record that Bureau and Departmental
 instructions precluded local negotiations on the matter in dispute in
 this case (Stipulation No. 17 and Joint Exhibit No. 7).  These
 instructions by higher agency levels removed from the Region any
 discretion as to this matter.  In these circumstances, we conclude that
 Respondent Interior and Respondent Bureau interfered with the protected
 rights of employees of the Region, the level of exclusive recognition,
 by directing it to implement a limitation on travel advances that
 precluded the Region from fulfilling its obligation to bargain with the
 Union on a change in conditions of employment.  See Department of Health
 and Human Services, Social Security Administration, Region VI and
 Department of Health and Human Services, Social Security Administration,
 Galveston, Texas District, 10 FLRA 26 (1982).  However, we do not find
 that it would effectuate the purposes and policies of the Statute to
 find an additional cumulative violation against the Region by refusing
 to bargain in good faith, since it had no discretion to bargain on the
 substance of the change.  This result is consistent with our
 determination in other cases concerning ministerial actions by
 subordinate levels of management in implementing directives of higher
 level management, where higher level management is found to have
 violated the Statute.  See, for example, United States Department of the
 Treasury, Internal Revenue Service and Internal Revenue Service, Austin
 District and Internal Revenue Service, Houston District, 23 FLRA No. 100
 (1986), slip op. at 6;  Headquarters, Defense Logistics Agency,
 Washington, D.C., 22 FLRA No. 93 (1986), slip op. at 5-6.
 
          E.  Respondent Region's Duty to Designate an Authorized
 
                Bargaining Representative
 
    As we discussed above, Respondent Region had no discretion to bargain
 on the substance of the change.  Accordingly, we find that it would not
 effectuate the purposes and policies of the Statute to find that the
 Region's failure to designate an authorized bargaining representative
 violated section 7116(a)(1) and (5) of the Statute.  We shall therefore
 dismiss this part of the complaint.
 
                              V.  Conclusion
 
    Based on the stipulated record, the parties' contentions, and the
 analysis set forth above, we do not hold that Respondent Region violated
 the Statute as alleged in the complaint and therefore we will dismiss
 those allegations.  We further conclude that Respondent Interior and
 Respondent Bureau did interfere with the Region's duty to bargain on a
 negotiable matter in violation of section 7116(a)(1) and (5) of the
 Statute, and we shall issue an appropriate remedial order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, it is hereby ordered that the
 Department of the Interior and the Bureau of Reclamation shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally changing the established conditions of employment of
 employees in the mid-Pacific Regional Office concerning the maximum
 amount of travel advances for employees in the Mid-Pacific Regional
 Office identified as frequent travelers under the Government Charge Card
 Program, and interfering in the Mid-Pacific Regional Office's obligation
 to bargain with National Federation of Federal Employees, Local 951, the
 exclusive representative of these employees, prior to the implementation
 of such change.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing any employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Withdraw and rescind the change which was implemented on or about
 March 1, 1985 which policy changed the maximum amount of travel advances
 for those employees identified as frequent travelers in the Mid-Pacific
 Regional Office, and reinstate in the Mid-Pacific Regional Office the
 procedures and policies relating to travel advances as practiced prior
 to March 1, 1985.
 
    (b) Post at the Department of Interior, Bureau of Reclamation,
 Mid-Pacific Regional Office, Sacramento, California, copies of the
 attached Notice on forms to be furnished by the Federal Labor Relations
 Authority.  Upon receipt of such forms, they shall be signed by the
 Under Secretary of the Department of Interior, and the Assistant
 Commissioner, Bureau of Reclamation, and shall be posted and maintained
 by the Mid-Pacific Regional Office for 60 consecutive days thereafter,
 in conspicuous places, including all bulletin boards and other places at
 each office where notices to employees are customarily posted.
 Reasonable steps shall be taken to ensure that such Notices are not
 altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IX, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply with this Order.
 
    Further, the potion of the complaint alleging that Respondent Bureau
 of Reclamation, Mid-Pacific Region violated section 7116(a)(1) and (5)
 of the Statute is dismissed.
 
    Issued, Washington, D.C. January 9, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
 PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT unilaterally change the stablished conditions of
 employment or our employees in the Mid-Pacific Regional Office
 concerning the maximum amount of travel advances for employees in the
 Mid-Pacific Regional Office identified as frequent travelers under the
 Government Charge Card Program, and interfere in the Mid-Pacific
 Regional Office's obligation to bargain with National Federation of
 Federal Employees, Local 951, the exclusive representative of these
 employees, prior to the implementation of such change.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL withdraw and rescind the policy which was implemented on or
 about March 1, 1985 which changed the maximum amount of travel advance
 for those employees identified as frequent travelers in the Mid-Pacific
 Regional Office, and reinstate in the Mid-Pacific Regional Office the
 procedures and policies relating to travel advan