26:0284(35)NG - FUSE, NAGE and Navy, Naval Underwater Systems Center, Newport, RI -- 1987 FLRAdec NG
[ v26 p284 ]
The decision of the Authority follows:
26 FLRA No. 35 FEDERAL UNION OF SCIENTISTS AND ENGINEERS, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES Union and DEPARTMENT OF THE NAVY, NAVAL UNDERWATER SYSTEMS CENTER NEWPORT, RHODE ISLAND Agency Case No. 0-NG-1036 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues concerning the negotiability of the following proposal. We find that the proposal is nonnegotiable. II. The Proposal The Union proposed that, effective immediately, the Agency use the "Runzheimer Meal-Lodging Cost Index," rather than the Agency's Joint Travel Regulations (JTRs), to determine the reasonableness of claims for meal expenditures by unit employees. The record shows that the Runzheimer Index is an index, published quarterly by an independent resource service, that reflects the meal cost experiences of persons travelling to specified urban areas of the country. The text of the proposal is included as an Appendix to this decision. III. Positions of the Parties The Agency, in its original statement of position, argued that the proposal is nonnegotiable because it conflicts with paragraph C4611.1 of the Agency's JTRs, for which a compelling need exists. The Agency, in a subsequent submission, states that during the pendency of this case Congress amended the law under which the Federal Travel Regulations (FTRs) are issued and that revised FTRs have been issued. The Agency claims that the proposal is nonnegotiable because it conflicts with the new FTRs and with the Agency's new JTRs, which were revised to conform with the new FTRs. In this connection, the Agenct also argues that the dispute is moot because the proposal seeks to supersede paragraph C4611.1e, which has since been replaced by the new JTRs. The Union argues in its original submission that the proposal is negotiable because there is no compelling need for the JTRs. In its subsequent submission, the Union does not address whether the proposal is consistent with the new FTRs or new JTRs. It argues that the Agency should be ordered to negotiate as to the meal costs that should have been allowed under its proposal prior to the effective date of the new law. /1/ IV. Analysis and Conclusion As noted by the Agency, during the pendency of this case, Congress amended the Travel Expense Act. Public Law 99-234, 99 Stat. 1756 (1986), amending 5 U.S.C. Section 5701 et seq. Pursuant to that amendment, the Administrator of the General Services Administration (GSA) issued new FTRs. GSA Bulletin FPMR A-40, Supplement 40, reprinted in 51 Fed. Reg. 19,660 (1986). The Federal Travel Regulations are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. 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); National Federation of Federal Employees, Local 29 and U.S. Army Engineers District, Kansas City, Missouri, 13 FLRA 23 (1983). Paragraph 1-7.2(a) of the FTRs provides that per diem allowances shall not exceed the maximum established by the Administrator. 51 Fed. Reg. at 19,662. Paragraph 1-7.5 provides that the per diem allowance is the actual amount for lodgings plus a prescribed allowance for meals, the total not to exceed the applicable maximum per diem rate. Id. at 19,663. The FTRs also allow an agency to pay a greater amount due to special or unusual circumstances, but in no event may the total exceed a further stated maximum (paragraph 1-8.3a(1)). Id. at 19,670. The Agency claims, without contradiction by the Union, that the meal allowances provided by the Runzheimer Index for travel to some cities would exceed the maximum rate established by the FTRs. Agency Supplemental Submission of Position at 4. Thus, since the basis of payment for meal allowances under the proposal is inconsistent with the Federal Travel Regulations, the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute. See National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, 22 FLRA No. 45 (1986) (Proposal 2); American Federation of Government Employees, Local 12 and Department of Labor, 19 FLRA 161 (1985). We also reject the Union's request that the Agency be required to negotiate as to the meal costs that should have been allowed under its proposal prior to the effective date of the new law; that is, prior to January 2, 1986. While the Runzheimer Index current at the time of the proposal may not have conflicted with the FTRs then in effect, the proposal before us requires the continued use of the Index, as updated quarterly, without regard to whether the amounts the Agency would be required to pay would exceed the limitations placed on meal costs by the FTRs. For these reasons, the proposal is nonnegotiable. /2/ V. Order The petition for review is dismissed. Issued, Washington, D.C., March 18, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) We have accepted and considered all submissions of both parties in this case. See 5 C.F.R. Section 2424.8. (2) In view of our conclusion, it is unnecessary to consider the Agency's other contentions as to the nonnegotiability of the proposal. APPENDIX Union's Proposal Subj: Meal Cost Policy Encl: (1) Listings of Cities Where Most NUSC TDY is Performed Showing Average Meal Costs 1. This memorandum applies to all employees represented by NAGE R1-144. 2. The Runzheimer Meal-Lodging Cost Index contains authoritative data for the audit of reported expenses, establishment of accurate per diem allowances and development of policy guidelines for travel expenses. The General Accounting Office approves its use. 3. Effective immediately, NUSC will use the average individual meal cost shown in the Runzheimer Meal-Lodging Cost Index to determine the reasonableness of claims for meal expenditures. Actual expense travel claims that exceed the average individual meal cost contained in the index may be subject to review by the travel order approving official and subject to substantiation by the claimant. 4. Enclosure (1) shows average meal costs, including a 15% gratuity, for cities where most NUSC TDY is performed. The listing is updated quarterly and should be verified at the disbursing or travel office periodically. Employees traveling to areas not shown in enclosure (1) can request average meal costs from either disbursing or travel office personnel. If the area to which the employee is traveling is not listed in the Runzheimer Meal-Lodging Cost Index the disbursing office will determine the average meal cost using an area with a commensurate actual expense rate. 5. This policy is effective for all travel claims submitted for travel orders issued on or after this date. 6. Enclosure (1) will be updated quarterly in accordance with Runzheimer listing and published by memorandum for the information of NAGE R1-144 employees.