25:0615(48)NG - Federal Union of Scientists and Engineers, NAGE, Local R1-144 and Navy, Naval Underwater Systems Center -- 1987 FLRAdec NG



[ v25 p615 ]
25:0615(48)NG
The decision of the Authority follows:


 25 FLRA No. 48
 
 FEDERAL UNION OF SCIENTISTS AND 
 ENGINEERS, NATIONAL ASSOCIATION 
 OF GOVERNMENT EMPLOYEES, LOCAL R1-144
 Union
 
 and
 
 U.S. DEPARTMENT OF NAVY, NAVAL 
 UNDERWATER SYSTEMS CENTER
 Agency
 
                                            Case No. 0-NG-1138
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         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 concerns the negotiability of three
 Union proposals.  /1/ We find Proposal 1 nonnegotiable and Proposals 2
 and 3 negotiable.
 
                              II.  Proposal 1
 
          The Naval Underwater Systems Center shall be responsible for
       personal losses of unit employees due to non-deposit of paychecks
       by Electronic Fund Transfer System.
 
                       A.  Positions of the Parties
 
    As explained by the Union, the intent of its proposal is to require
 the Agency to reimburse employees for penalties they incur for
 insufficient funds in their accounts as a result of the Agency's failure
 to deposit their paychecks.  The Union did not file a Reply Brief in
 this case.
 
    The Agency contends that in the absence of express statutory
 authority, it is prevented from making the expenditures required by the
 proposal and, thus, that the proposal is outside the duty to bargain
 under section 7117(a)(1) of the Statute.
 
                               B.  Analysis
 
    The current authorization for the direct deposit of employee
 paychecks to financial organizations is contained in 31 U.S.C. Section
 3332.  There is nothing in the express language of this section, which
 was enacted to replace 31 U.S.C. Section 492, or in its legislative
 history, indicating that the Government was to be authorized to
 reimburse employees for service charges on checks drawn on insufficient
 funds where the Government has undertaken but failed to deposit an
 employee's paycheck directly with the employee's bank.  In this regard,
 the Comptroller General, interpreting 31 U.S.C. Section 492, which
 preceded Section 3332, held that specific statutory authority is
 required to reimburse employees for penalties incurred as a consequence
 of an agency's failure to deposit employees' paychecks.  In Matter of
 Robert G. Raske, Comp. Gen. Decision No. B-22273 (May 7, 1981), an
 employee's change of address was processed one pay period earlier than
 requested, and as a result the employee incurred $129 in overdraft
 charges.  Finding no authorization for reimbursement in the statute (31
 U.S.C. Section 492) entitling employees to designate a financial
 institution to receive their paychecks, the Comptroller General held
 that the agency could not reimburse the employee for the penalties.
 
    As noted, there is nothing in the express provisions of the currently
 applicable statute, 31 U.S.C. Section 3332, or in its legislative
 history, which indicates that Congress sought to provide the specific
 authorization lacking in 31 U.S.C. Section 492 for an agency to
 reimburse employees for such expenses.  Consequently, in the absence of
 any demonstration in the record of any statutory authorization for an
 agency to reimburse employees for charges incurred as the result of an
 agency's failure to deposit employees' paychecks, the Authority finds
 that these expenses are the personal responsibility of the employee.
 
                              C.  Conclusion
 
    For the reason cited in the foregoing analysis, Union Proposal 1 is
 outside the duty to bargain under section 7117(a)(1) of the Statute.
 
                             III.  Proposal 2
 
          Paychecks shall be mailed by Federal mail or guard mail
       (internal mail system) to an employee's designated address before
       Wednesday noon, payday week.
 
                                Proposal 3
 
          Leave and Earnings Statements shall be mailed by Federal mail
       or guard mail (internal mail system) to an employee's designated
       address.
 
                       A.  Positions of the Parties
 
    The Union states that the intent of the proposals is to require the
 Agency to mail an employee's paycheck and leave and earnings statement
 to the address designated by the employee by regular mail or the
 Agency's internal mail system, including the employee's work-place
 address, if the employee so designates.
 
    The Agency contends that the proposals are nonnegotiable because:
 
          1.  The proposals concern the methods and means by which the
       Agency performs its work, under section 7106(b)(1) of the Statute.
 
          2.  The proposals are inconsistent with an Agency-wide
       regulation for which a compelling need exists.
 
          3.  The proposals do not involve conditions of employment as
       they do not substantially affect bargaining unit employees.
 
                        b.  Analysis and Conclusion
 
    In the Authority's recently issued Decision and Order on Remand in
 Federal Employees Metal Trades Council, AFL-CIO and Department of the
 Navy, MareIsland Naval Shipyard, Vallejo, California, 25 FLRA No. 31
 (1987), /2/ we reconsidered and reversed the Authority's prior holding
 that two proposals permitting newly hired bargaining unit employees to
 receive their paychecks at their work addressed involved the methods and
 means of performing work and, thus, were negotiable only at the election
 of the agency, under section 7106(b)(1) of the Statute.  In our decision
 on remand we determined that:  (1) The manner of paycheck delivery does
 not involve the method and means of performing work under section
 7106(b)(1) of the Statute;  (2) paycheck delivery related principally to
 conditions of employment under section 7103(a)(14);  (3) a compelling
 need does not exist for the Agency's regulation asserted as a bar to
 negotiation of the Unions' paycheck delivery proposals;  and (4) the
 Agency failed to establish that paycheck delivery proposals directly
 interfered with management's rights under section 7106(a)(1) to
 determine budget and organization or under section 7106(a)(2)(A) and (B)
 to assign employees, to assign work or to determine personnel.  Thus, we
 concluded that the proposals were within the duty to bargain.
 
    The proposals in this case are to the same effect as the proposals in
 Mare Island Naval Shipyard.  In addition, the Agency raises the same
 claims as to their negotiability including the claim that a compelling
 need exists for the same Agency regulation.  Consequently, for the
 reasons stated more fully in Mare Island Naval Shipyard, we conclude
 that Proposals 2 and 3 in this case are within the duty to bargain.
 
                                IV.  Order
 
    The Agency must upon request (o