31:0355(31)NG - AFGE Local 3232 and HHS, SSA, Region II -- 1988 FLRAdec NG



[ v31 p355 ]
31:0355(31)NG
The decision of the Authority follows:


  31 FLRA NO. 31
 31 FLRA 355

    23 FEB 1988
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3232

                   Union

      and

DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, REGION II

                   Agency
Case No. 0-NG-1445

DECISION AND ORDER ON NEGOTIABILITY ISSUE

     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 a proposal which requires the Agency to
grant administrative leave to cover certain commuting time for
employees on detail. For the reasons which follow, we find that
the proposal is outside the duty to bargain because it is
inconsistent with Government-wide regulations.

     II. Background and Proposal

     The Agency decided to detail certain claims representatives
from field offices in the Philadelphia Region to teleservice
centers also in the Philadelphia Region. This detail was for the
purpose of taking teleclaims and answering claimant's inquiries
regarding Title II of the Social Security Act. During impact and
implementation bargaining on the Agency's decision to detail
employees, the parties agreed, among other things, that the
employees would be detailed on a rotational basis among qualified
volunteers using seniority as the basis for the detail. However,
the  Agency objected to the underlined portion of the
following proposal:

     10 - If the office to which an employee is detailed is
further from the employee's residence than the original duty
station, the employee will be granted administrative leave to
cover the additional time required for the travel while on
detail. Travel expenses will be paid while on detail, minus the
normal expenses for getting to the original duty station. (only
the underscored portion is in dispute.)

     III. Positions of the Parties

     The Agency argues that the requirement to grant
administrative leave for a portion of an employee's commute to a
temporary duty location conflicts with provisions in the Federal
Personnel Manual (FPM). In addition, the Agency contends that the
disputed language directly and excessively interferes with
management's right to assign work under section 7106(a)(2)(B) of
the Statute. The Agency also asserts that the proposal is
inconsistent with 5 U.S.C. 6101(b)(2) and 5 C.F.R. 610.123
because it requires that commuting time be during duty hours.

     The Union contends that the proposal is a negotiable
procedure which is consistent with law and Government-wide
regulations and is an appropriate arrangement for adversely
affected employees. The Union alleges that the proposal is
clearly within the Agency's duty to bargain since management
retains broad discretion to grant administrative leave under
applicable Government-wide regulations. The Union also claims
that this proposal does not require administrative leave to be
granted while employees are on detail. Rather, according to the
Union, administrative leave could be scheduled at a later date.

     IV. Analysis and Conclusion

     The Union here is seeking "administrative leave" to cover
the difference in commuting time between that spent by unit
employees in traveling from their homes to their regular duty
stations and that spent in commuting from their homes to their
temporary duty stations while on detail. The Union explained that
the Agency need not deduct the administrative leave from
the employees' regular 8-hour workday. Rather, the Union asserts,
". . . the union's proposal in the instant case allows management
complete discretion to assign workers for the full eight hours at
their temporary duty station. The clear unambiguous language of
the proposal merely requires that, in those situations where
employees have to travel much longer distances than they do, to
get to their assigned temporary duty stations, the agency will
grant administrative leave to cover the additional time." Reply
Brief at 5-6. The Union also explains that ". . . the leave is
not necessarily taken on each day of the detail, but could be
scheduled by management at a later date, subject to approval of
the Supervisor." Reply Brief at 8.

     Administrative leave, or leave granted at the administrative
discretion of agencies is covered by Federal Personnel Management
(FPM) chapter 630, subchapter 11. The Authority previously has
held that these FPM provisions are Government-wide within the
meaning of section 7117(a)(1) of the Statute. American Federation
of Government Employees, AFL - CIO, Local 3804 and Federal
Deposit Insurance Corporation, Madison Region, 21 FLRA  870,
898-99 (1986) (Proposal 15). FPM 630, subchapter 11-1 defines
administrative leave, or excused absence--the terms, in practice,
are used interchangeably--as "an absence from duty
administratively authorized without loss of pay and without
charge to leave." The subchapter lists examples of circumstances
in which an agency may, in its discretion grant administrative
leave. Those examples include: blood donation, tardiness and
brief absences, taking examinations, attending conferences or
conventions, and representing employees organizations. None of
those examples, we note, are similar to the situation or which
the Union here seeks administrative leave.

     More significantly, based on the definition contained in FPM
630, subchapter 11-5, we find that what the Union is seeking
through this proposal is not "administrative leave."
Administrative leave may be granted when an employee, for some
appropriate reason, is absent from work during a regularly
scheduled tour of duty. The grant of administrative leave
prevents the loss of pay or leave which would otherwise result
from the absence. In the circumstances of this proposal, as the
Union's statement quoted above clearly indicates, management
retains authority "to assign workers for the full eight hours at
their temporary duty station." Consequently, the proposal does
not  address a situation in which a grant of
administrative leave would be appropriate. The proposal is not
intended to redress an employee's loss of leave or pay resulting
from an inability to be present for a full, normal tour of
duty.

     We find that what the union is seeking here, although
written in terms of "administrative leave", is compensation for
the additional commuting time in the form of compensatory leave.
In reaching this conclusion, we note the Union's statement,
quoted above, that the leave "could be scheduled by management at
a later date", a characteristic of compensatory leave, which is
leave in lieu of overtime pay. See 5 U.S.C. 5543(a). We find
further support for this conclusion in the Union's statement that
the Agency retains authority to assign detailed employees to a
normal 8-hour tour at the temporary duty site. Thus, the leave
sought would cover a period beyond the regular duty tour, that
is, overtime.

     With some exceptions not relevant to this case, commuting
time, that is, "home to work" travel, is not an activity which
constitutes hours of work and, therefore, is not compensable. 5
C.F.R. 551.422(b). The cited section of the Code of Federal
Regulations is issued by the Office of Personnel Management (OPM)
under authority of 29 U.S.C. 204(f), which requires OPM to
administer provisions of the Fair Labor Standards Act (FLSA)
"with respect to any individual employed by the United States",
with some limited exceptions. The Union does not allege that unit
employees are excluded from FLSA coverage and the record
indicates that the employees are covered. Therefore, we conclude
that the 5 C.F.R. 551.422(b) is a Government-wide regulation
applicable to the disputed proposal. See National Treasury
Employees Union, Chapter 6 and Internal Revenue Service. New
Orleans District, 3 FLRA  748, 751-55 (1980).

     The regulations also provide that if an employee travels
directly from home to a temporary duty location outside the
limits of his or her official duty station, "the time that the
employee would have spent in normal home to work travel shall be
deducted from hours of work(.)" Id. "Official duty station" is
not defined as a specific location, but rather is "the employee's
designated post of duty, the limits of which will be the
corporate limits of the city or town in which the office or
employee is stationed." Federal Travel Regulations, Paragraph
1-1.3c(l). See also Federal Personnel Manual Supplement 990-2,
Book 550, subchapter S1-3. The Federal Travel Regulations have
been  held by the Authority to be "Government-wide"
within the meaning of section 7117(a)(1). American Federation of
Government Employees, AFL - CIO, Local 3483 and Federal Home Loan
Bank Board, New York District Office, 13 FLRA  446 (1983)
(Proposal 1).

     The Union makes no claim that the teleservice centers to
which employees will be detailed are outside the corporate limits
of the cities or towns in which their field offices are located.
Thus, we conclude that the exception in 5 C.F.R. 551.422(b),
which would permit employees to be compensated for the additional
time required to commute to the teleservice centers, is not
applicable to this proposal.

     Accordingly, because it seeks compensation, in the form of
compensatory time off, for increased commuting time--compensation
not authorized by applicable Government-wide regulations--the
proposal is nonnegotiable under section 7117(a)(1) of the
Statute.

     Since we have found this proposal nonnegotiable because it
is inconsistent with Government-wide regulations, we need not
reach the question of whether the proposal constitutes a
negotiable procedure under section 7106(b)(2) or an appropriate
arrangement under section 7106(b)(3). These