30:0486(63)CA - INS and INS Newark District and AFGE Local 2149 -- 1987 FLRAdec CA



[ v30 p486 ]
30:0486(63)CA
The decision of the Authority follows:


30 FLRA No. 63

IMMIGRATION AND NATURALIZATION
SERVICE AND IMMIGRATION AND
NATURALIZATION SERVICE
NEWARK DISTRICT

                   Respondent

      and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 2149

                   Charging Party

Case No. 2-CA-60471

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority under section 2429.1(a) of the Authority's Rules and Regulations, based upon a stipulation of facts by the parties. The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by unilaterally changing a practice concerning reimbursement of employees for mileage expenses without affording the Charging Party an opportunity to negotiate on the change. For the reasons set forth below, we find that the central issue in the dispute involves different and supportable interpretations of a collective bargaining agreement and, therefore, that the dispute is not appropriate for resolution under unfair labor practice procedures. We conclude that the appropriate forum for resolution of the dispute is the negotiated grievance procedure of the agreement. Accordingly, we shall dismiss the complaint.

II. Background

The American Federation of Government Employees (AFGE), National Council of Immigration and Naturalization Service [PAGE] Locals, is the exclusive bargaining representative for a nationwide unit of employees of the immigration and Naturalization Service (INS). The Charging Party, AFGE Local 2149 (the Union), is the agent of AFGE in representing unit employees in the INS Newark District (the District).

In July 1984, the District began a practice of reimbursing certain employees for all mileage expenses incurred while driving their personally owned vehicles (POVs) to perform inspectional assignments at temporary duty stations within the District's local travel area.

On September 21, 1984, AFGE and INS entered into a nationwide agreement, which provided: "When an employee travels by privately-owned vehicle from his home to a temporary duty station and/or from a temporary duty station to his home, the employee will be reimbursed for any mileage in excess of his normal round trip from his home to his regular duty station." The parties' master agreement also provided that nothing could be included in any local supplemental agreement which would conflict with the terms of the master agreement. Additionally, the master agreement provided a mechanism at the national level for resolving any disputes as to whether a local proposal was in conflict with the master agreement.

On September 17, 1986, the District notified the Union that, effective immediately, it would no longer pay employees for all mileage costs for using their POVs on inspection assignments. The District informed the Union that it would reimburse employees only for mileage in excess of a normal round trip between their homes and regular duty station. The notice indicated that the local policy was being changed to bring the District into conformity with Department of Justice regulations and the master agreement. On the same day, the Union requested a delay in implementation of the change in the reimbursement policy until a meeting could be arranged to discuss the change. On September 18, the District informed the Union that the District was required to discontinue the local practice immediately because it was contrary to law, regulation and the master agreement. The District also maintained that since it was merely acting to bring local practice into conformity with the master agreement, no formal discussion on the matter was required. On October 1, the Union advised the District that numerous questions had been raised concerning implementation of the policy change and requested a copy of the new policy. The record indicates that there were no further exchanges between the parties concerning the change. The parties stipulated that the [ v30 p2 ] District's September 17 change in the reimbursement policy constituted a change in the working conditions of unit employees which was more than "de minimis." Stipulation, paragraph 13(c).

III. Positions of the Parties

The General Counsel contends that the Respondent was required to give the Union adequate notice and an opportunity to bargain over the substance of the change in the local policy before implementation. In support of this contention, the General Counsel argues that there was an established past practice of reimbursing employees using POVs for all mileage between their homes and temporary duty stations. The General Counsel maintains that this practice had been followed consistently for a significant period of time notwithstanding the conflicting provisions of Department of Justice regulations and the master agreement and that the practice had ripened into a condition of employment which the District could not unilaterally change.

The General Counsel also argues that the substance of the local practice was negotiable because, under decisions of the Comptroller General, agencies have the discretion to reimburse employees traveling to temporary duty stations for either all expenses or only those which exceed normal commuting expenses to a permanent duty station. The General Counsel further argues that the record does not establish any basis for finding a compelling need for the Department of Justice reimbursement regulation and, therefore, there was no compelling need for the change under that regulation.

The General Counsel further asserts that the master agreement was modified by the local past practice. The General Counsel maintains that having created and acquiesced in the local reimbursement practice, the Respondent was obligated to bargain on any change proposed to bring the practice into conformity with the conflicting term in the master agreement.

The General Counsel argues that the Respondent violated the Statute by instituting the change abruptly and without any prior notice or opportunity to bargain. The General Counsel contends that even if the Respondent had been required to bargain only on the impact and implementation of the change, the Respondent failed in its duty to provide adequate notice and an opportunity to bargain. [ v30 p3 ]

The Respondent contends that the parties' master agreement governs the resolution of this dispute. The Respondent argues that the agreement contains clear and concise language governing payment of mileage for local travel. The Respondent further argues that the agreement contains clear and concise prohibitions against negotiating local variations which conflict with the agreement and against negotiating local supplemental agreements on matters already negotiated at the national level. The Respondent also argues that it discovered a local practice that conflicted with the master agreement and simply notified the Union of its intent to implement the agreement.

The Respondent maintains that an agency is under no obligation to bargain over a change in a past practice in situations such as this where the union has clearly and unmistakably waived its right to bargain on the change at a higher level. The Respondent contends that the proper forum for resolving any dispute as to whether the master agreement superseded the past practice in the District or whether the union waived its right to bargain on the change at a higher level is the grievance procedure provided in the master agreement.

The Respondent also asserts that the District's reimbursement policy prior to September 17, 1986, was contrary to law and Department of Justice regulations. The Respondent also contends that the Union did not request to negotiate concerning even the impact and implementation of the change.

IV. Analysis and Conclusion

The central issue in this dispute is whether, under the INS-AFGE master agreement, the Respondent was entitled to unilaterally change the local practice regarding reimbursement for mileage expenses. We find that the issue is not one that is appropriate for resolution under unfair labor practice procedures.

It is well settled that an alleged unfair labor practice, which involves different and supportable interpretations of a collective bargaining agreement, as distinguished from an alleged action which constitutes a clear and patent breach of an agreement, is not appropriate for resolution under unfair labor practice procedures. See, for example, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA 512, 521-22. In such cases, the [ v30 p4 ] aggrieved party's remedy is through the negotiated grievance procedures of the agreement rather than through the Authority's unfair labor practice procedures. Id.

The exclusive representative of the employees in the Newark District is the AFGE National Council of INS Locals. It is undisputed that the exclusive representative entered into an agreement with the INS at the national level which specifically includes a provision for reimbursing employees who use their POVs in temporary duty assignments. At the level of recognition, the parties agreed that employees using their POVs traveling to and from temporary duty stations would be reimbursed only for mileage expenses in excess of a normal round trip between the employee's home and permanent duty station. It is also undisputed that the master agreement includes provisions concerning the prerogatives of local officials to bargain over matters addressed by the master agreement. Moreover it is undisputed that the practice followed in the District, which began before execution of the master agreement, was different from the policy established in the agreement, and that the Respondent unilaterally discontinued the local practice.

The General Counsel argues that the local practice had been followed for a significant period of time notwithstanding the different policy in the master agreement and, therefore, that the practice could not be changed without local bargaining. Thus, the General Counsel's position is that the master agreement does not preclude bargaining on the change. The General Counsel also maintains that the master agreement was modified by the equivalent of bargaining, that is, continuation of the local past practice.

On the other hand, the Respondent argues that the master agreement superseded the local practice and mandated the change that was made. The Respondent also argues that the master agreement prohibited any negotiations on the change. The Respondent further contends that the Union had waived any right to negotiate on the change because AFGE agreed to the reimbursement policy in the master agreement.

The above arguments reflect that the essence of this dispute involves different and supportable interpretations of the master agreement. The parties disagree as to whether that agreement permits or precludes continuation of the pre-existing local practice and whether it permits or precludes bargaining on the Respondent's discontinuation of that practice. Resolution of this disagreement requires interpretation of the master agreement and determinations as [ v30 p5 ] to its effect on pre-existing local practices and on local bargaining rights and obligations. We conclude that the proper forum in which to resolve the disagreement is that which INS and AFGE have established for that purpose, that is, the negotiated grievance procedure of the master agreement. See Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, New York Region, 23 FLRA 422 (1986).

As to the Respondent's argument that the Union clearly and unmistakably waived its right to bargain on the Agency's discontinuation of the local mileage reimbursement practice because AFGE entered into agreement on that subject at the national level, there is some support for the Respondent's argument. See, for example, Office