29:0451(42)NG - AFGE VS LABOR, ESA, REGION 2
[ v29 p451 ]
The decision of the Authority follows:
29 FLRA NO. 42 NATIONAL COUNCIL OF FIELD LABOR LOCALS, LOCAL 2513, AFGE Union and U.S. DEPARTMENT OF LABOR, EMPLOYMENT STANDARDS ADMINISTRATION, REGION 2 Agency Case No. 0-NG-1363
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). It concerns the negotiability of the underscored portion of the following proposal. For the following reasons we find that the proposal is nonnegotiable.
The proposal arose during negotiations over the Agency's decision to reduce its fleet of Government-owned/leased vehicles. To implement this decision the Agency proposed that all Government cars be left at the area office at the end of the workday and be picked up there by employees at the beginning of the workday. Currently employees (wage and hour investigators) are allowed to take a car home at night so that they may drive it directly from their homes to their first assignment the next day.
II. The Proposal
The parties agree to abide by all applicable laws, rules and regulations and paragraph 308 of DOL Manual Series 7.
When management requires that an employee make a trip to the official duty station for the purpose of picking up a GOV, then that trip and the employee's trip back home after dropping off the GOV shall be official business.
When management requires that an employee make a trip to the official duty station for the purpose of dropping off a GOV, then that trip and the employee's trip back home after dropping off the GOV shall be official business.
III. Positions of the Parties
The Agency contends that the proposal conflicts with law and Government-wide regulation. Specifically, as to law, the Agency asserts that the proposal conflicts with 31 U.S.C. 1344. 1 As to Government-wide regulation, the Agency relies on several Comptroller General decisions which hold that, generally, commuting expenses may not be paid by the Government but must be borne by the employee. The Union argues that the proposal is consistent with 31 U.S.C. 1344 as well as Comptroller General decision. It asserts that all the proposal seeks is to determine what constitutes official business. Citing the Authority's decision in 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), the Union contends that such a determination is within the Agency's discretion and, consequently, subject to negotiation.
IV. Analysis and Conclusion
The proposal seeks to have the time spent by employees traveling to and from their official duty station for the purpose of picking up and dropping off Government-owned vehicles designated as official business. The Agency asserts, and the Union does not deny, that this would effectively require it to pay the commuting expenses of employees. Based on the record and for purposes of this decision we construe the proposal as requiring that, when employees are required to report to their duty station for the purpose of picking up and dropping off a Government-owned vehicle, the expenses of their travel between their home and duty station be paid by the Agency. Payment of employee travel expenses is governed by provisions of the Travel Expense Act, specifically 5 U.S.C. 5701-5702, 5704, and 5706-5707, and the Federal Travel Regulations (FTRs), 41 C.F.R. Part 101-7. The Comptroller General administers and interprets the Travel Expense Act and its implementing regulations. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 106 (1983), U.S. Customs Service, 21 FLRA No. 2, slip op. at 5 (1986).
As to employee commuting expenses, the Comptroller General has held that under the Travel Expense Act and the FTRs employees must place themselves at their regular places of work and return to their homes at their own expense absent statutory or regulatory authority to the contrary. 55 Comp. Gen. 1323 (1976); 36 Comp. Gen. 450 (1956). The FTRs contain specific provisions which govern payment of expenses relating to local transportation. FTRs 1-2.3. Under those provisions, payment of expenses for transportation between an employee's residence and office is authorized only in the following circumstances:
(1) On a day when official travel is performed but only when the trip involved requires at least one night's lodging. FTRs 1-2.3d and 1-4.2c(2)
(2) For use of a taxicab when the employee is dependent on public transportation and the travel is incident to officially ordered work outside of regular working hours and the travel is during hours of infrequently scheduled public transportation or darkness. FTRs 1-2.3e.
The proposal would require payment of travel expenses whenever employees commute between their residence and office for the purpose of obtaining a Government-owned vehicle to use as transportation in conducting official business without regard to whether either of the above circumstances exist. In view of this requirement, the proposal conflicts with the Federal Travel Regulations which we have previously held are Government-wide regulations. Therefore, we find that the proposal is not within the duty to bargain.
In view of this finding it is unnecessary to address the Agency's contentions as to the applicability of 31 U.S.C. 1344 to the proposal. Also it is unnecessary to decide under what circumstances decisions of the Comptroller General, in and of themselves, might constitute Government-wide rules and regulations.
The Union's petition is dismissed.
Issued, Washington, D.C., September 30, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Footnote 1 31 U.S.C. 1344 provides in relevant part: 1344. Passenger carrier use (a)(1) Funds available to a Federal agency, by appropriation or otherwise, may be expended by the Federal agency for the maintenance, operation, or repair of any passenger carrier only to the extent that such carrier is used to provide transportation for official purposes. Notwithstanding any other provision of law, transporting any individual other than the individuals listed in subsections (b) and (c) of this section between such individual's residence and such individual's place of employment is not transportation for an official purpose. (2) For purposes of paragraph (1), transportation between the residence of an officer or employee and various locations that is-- (A) required for the performance of field work, in accordance with regulations prescribed pursuant to subsection (e) of this section . . . is transportation for an official purpose, when approved in writing by the head of the Federal agency. (e)(1) Not later than March 15, 1987, the Administrator of General Services, after consultation with the Comptroller General, the Director of the Office of Management and Budget, and the Director of the Administrative Office of the United States Courts, shall promulgate regulations governing the heads of all Federal agencies in making the determinations authorized by subsections (a)(2)(A), (b)(8), and (d)(2) of this section. Such regulations shall specify that the comfort and convenience of an officer or employee is not sufficient justification for authorizations of transportation under this section. (2) In promulgating regulations under paragraph (1) of this subsection, the Administrator of General Services shall provide criteria defining the term "field work" for purposes of subsection (a)(2)(A) of this section. Such criteria shall ensure that transportation between an employee's residence and the location of the field work will be authorized only to the extent that such transportation will substantially increase the efficiency and economy of the Government.