38:0149(17)NG - - Professional Airways Systems Specialist and Navy, Marine Corps Air Station, Cherry Point, NC - - 1990 FLRAdec NG - - v38 p149



[ v38 p149 ]
38:0149(17)NG
The decision of the Authority follows:


38 FLRA No. 17

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS

(Union)

and

U.S. DEPARTMENT OF THE NAVY

MARINE CORPS AIR STATION

CHERRY POINT, NORTH CAROLINA

(Agency)

0-NG-1620

DECISION AND ORDER ON NEGOTIABILITY ISSUES

November 13, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under sections 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of two provisions that were disapproved by the Department of the Navy under section 7114(c) of the Statute. Provision 1 concerns the use of Government telephones for personal business by employees on temporary duty or in travel status, and reimbursement for such calls, if Government telephones are not available. Provision 2 concerns the definitions of the terms "Appraiser" and "Reviewing Official" in regard to the appraisal of employees' work performance. For the reasons that follow, we find that Provision 1 is negotiable and Provision 2 is nonnegotiable.

II. Provision 1

Article 14, Section 1

In accordance with 41 CFR Part 201-38, dated 11-4-87, when in a travel or TDY status, employees shall have the use of [G]overnment telephones to take care of personal business, and if [G]overnment telephones are not available, then such calls shall be considered an authorized reimbursement expense.

A. Positions of the Parties

1. The Agency

The Agency argues that to the extent Provision 1 permits the use of Government telephones for personal business, it is inconsistent with Department of Defense Directive Number 5500.7 (DoD Directive), dated May 6, 1987, which limits the use of Government telephones to "official uses," defined as uses for purposes directly in support of Government business. Statement of Position at 6. The Agency further argues that while the DoD Directive also provides that the use of Government telephones may be approved as being in the best interest of the Government, the Agency has not approved the use of Government telephones that would be required by Provision 1 and, further, that factual matters such as whether a matter is in the best interest of the Government are not "ascertainable through the collective bargaining process." Id.

The Agency contends that there is a compelling need for its Directive under section 2424.11(a) of the Authority's Rules and Regulations. It argues that the Directive is essential to the accomplishment of the Agency's mission in a manner consistent with the requirements of an effective and efficient Government because it prevents the unnecessary expenditure of substantial sums of Agency funds that could otherwise be spent on the national defense. Although the Agency acknowledges that there are only 13 employees in the bargaining unit, it argues that any decision to allow bargaining unit employees to make personal calls while in a travel or temporary duty status would have to be implemented among all DoD personnel, including the approximately 2.1 million in uniform. That cost, the Agency argues, would be almost $25 million annually. Id. at 10. The Agency states that although the provision might increase morale, "such an intangible benefit is insubstantial when compared to the very high estimated cost" to the Agency. Id. at 11. The Agency asserts that employees already can make a limited number of personal phone calls under the meals and incidental expenses portion of the per diem allowance contained in the Federal Travel Regulations ("FTRs"). Id.

To the extent that the provision requires the Agency to reimburse employees for personal telephone calls when Government phones are unavailable, the Agency contends that the provision is inconsistent with: (1) Federal law, which prohibits reimbursing Federal employees' expenses without specific statutory authority; and (2) the Department of Defense Joint Travel Regulations (JTRs), paragraph 4707-3, which provides that personal calls will not be allowed at Government expense. As to the latter, the Agency argues that there is a compelling need for this regulation based on the cost to the Agency and the need for uniformity. The Agency's arguments as to cost are the same as those it made regarding DoD Directive 5500.7. With respect to the need for uniformity, the Agency claims that the provision would be administratively burdensome and a potential source of errors in the processing of travel claims and "would not facilitate the accomplishment of the Department of Defense's mission." Id. at 17.

2. The Union

The Union contends that the Agency has not demonstrated that Provision 1 is inconsistent with DoD Directive 5500.7. It argues that the Directive is either consistent with or has been superseded by the applicable Government-wide regulations that expressly authorize the use of Government telephones under the circumstances specified in Provision 1. The Union notes that the Directive limits the use of Government telephones to "official use," such as calls that are made "'directly in support of Government business or as otherwise approved by DOD authority . . . as in the best interest of the Government'[,]" and sets substantially the same standard as the applicable Government-wide FTR, 41 C.F.R. § 301-6.4(c) and the Government-wide Federal Information Resources Management Regulation (FIRMR), 41 C.F.R. § 201-38.007-1. Response at 5-6.

The Union argues that the Agency's generalized statement as to the cost of the provision for all civilian and military DoD personnel is "conclusory" and does not support a finding of a compelling need as it relates to bargaining unit employees. Id. at 8. The Union further argues that the Agency offers only a cost-based justification and ignores all other factors, including morale and employee welfare benefits to be realized from permitting employees to communicate with their "loved ones and regular duty posts to attend to important personal business." Id. at 10. Citing Department of the Interior, Washington, D.C. Bureau of Reclamation, Washington, D.C. and National Federation of Federal Employees, Local 951, 25 FLRA 91, 96 (1987), the Union states that the Authority has recognized that a demonstration of monetary savings alone is not sufficient to establish that a regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the mission in a manner which is consistent with the requirements of an efficient and effective Government. Response at 10.

As to reimbursement for personal calls made on commercial phone systems, the Union argues that all necessary calls are authorized by the Federal Civilian Employee and Contractor Travel Expenses Act of 1985 (Travel Expenses Act), 5 U.S.C. §§ 5701-5707, and its implementing regulations (FTRs). Id. at 11-12. The Union claims that the FTRs and FIRMR specifically authorize use of commercial long-distance networks for "official business" if Government phone systems are unavailable or impractical to use and that those regulations make no distinctions between authorized Government and commercial telephone systems. The Union argues that the Agency's compelling need arguments should be rejected because (1) the Agency has failed to meet its burden of demonstrating that the relatively small cost savings are essential to the accomplishment of its mission; and (2) the Agency's uniformity argument appears to be based on the premise that nothing short of absolute uniformity will ensure administrative efficiency, an argument which the Authority has previously rejected. Id. at 12-14.

B. Analysis and Conclusions

1. Provision 1 is Not Inconsistent with Law

We do not accept the Agency's argument that, to the extent that the provision requires reimbursement for personal telephone calls made on commercial telephones, it is inconsistent with Federal law. Contrary to the Agency's contentions, we find that there is specific statutory authority for reimbursement for personal telephone calls when in travel or TYD status.

The payment of employee travel expenses is governed by provisions of the Travel Expenses Act, 5 U.S.C. § 5701, et seq., and the implementing FTRs, 41 C.F.R. §§ 301-304. Section 5702(a)(1) of the Travel Expenses Act provides that an employee, when traveling on official business away from the employee's designated post of duty, or away from the employee's home or regular place of business, is entitled to a per diem allowance and reimbursement for the actual and necessary expenses of official travel. Under the applicable provision of the FTRs, 41 C.F.R. § 301-6.4(c), use of Government and commercial telephone services is authorized "to conduct official business; i.e., if the call is necessary in the interest of the Government." It further provides that authorization and approval of employee use of the telephone should be in accordance with agency directives issued pursuant to the FIRMR. Under a provision of the FIRMR, 41 C.F.R. § 201-38.007-1, the use of Government telephone systems, including calls over commercial telephone systems that will be paid for by the Government, may be authorized if in the interest of Government. Listed among the examples of circumstances that may constitute authorized use are personal telephone calls made under specified circumstances, such as the following:

. . . . . . .

(2) An employee traveling on Government business is delayed due to official business or transportation delay, and calls to notify family of a schedule change.

(3) An employee traveling for more than one night on Government business in the U.S. makes a brief call to his or her residence (but not more than an average of one call per day).

. . . . . . .

Inasmuch as Provision 1 limits reimbursement for personal telephone calls to those made in accordance with 41 C.F.R. § 201.38, reimbursement for use of commercial telephone systems under the terms of Provision 1 is specifically authorized.

In finding that reimbursement for personal telephone calls, under limited circumstances, is specifically authorized, the Authority has considered the Agency's argument that 41 C.F.R. § 201.38 does not pertain to reimbursement for the use of commercial telephones and finds that argument unavailing. 41 C.F.R. § 201-38.007-1 specifically includes "calls over commercial systems which will be paid by the Government" as falling within the terms of that section. Moreover, as previously noted, 41 C.F.R. § 301-6.4(c) specifically authorizes the use of commercial telephone systems by employees during official travel in accordance with agency directives issued pursuant to 41 C.F.R. § 201.38.007.

Accordingly, contrary to the Agency's assertion, there is specific statutory authority for the reimbursement of expenses for personal telephone calls by employees in travel or TDY status in accordance with 41 C.F.R. § 201-38.007-1.

2. The Agency Has Not Established That Provision 1 Conflicts with Agency Regulations for Which a Compelling Need Exists

An agency asserting compelling need as a bar to negotiation of a proposal under section 7117(a)(2) of the Statute must demonstrate that there is an overriding need for the uniform application of the policies reflected in the agency regulation for which it asserts a compelling need. American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Air Logistics Center, Sacramento, California, 36 FLRA 894, 907 (1990) (Air Logistics Center). To establish a compelling need for an agency regulation, an agency must: (1) identify the Agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with reference to the standards set forth in section 2424.11 of the Authority's regulations. American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 880-81 (1986) (FDIC). Generalized and conclusionary reasoning is not enough to support a finding of compelling need. Id. at 881.

a. DOD Joint Travel Regulations

The Agency asserts that insofar as it requires reimbursement for personal calls, the provision conflicts with section C4707 of the JTRs. That regulation provides:

. . . . . . .

3. PERSONAL TELEPHONE CALLS. Personal calls, calls reserving hotel accommodations, calls applying for leave of absence or extension thereof, or inquiry concerning payment of salary or expense vouchers, and answers thereto, will not be allowed at Government expense. The mention of hotel reservations in telephone calls relating to official travel between administrative officials and/or employees may be considered as merely incidental to the official business involved, and the costs of such calls may be considered as [reimbursable] rather than personal expense.

The specific language of the regulation prohibits the use of personal telephone calls at the Government's expense. Thus, to the extent that Provision 1 requires reimbursement for personal calls, it is inconsistent with this regulation.

However, the Agency has not satisfied the compelling need criterion found at section 2424.11(a) of the Authority's Rules and Regulations. To establish a compelling need under this section, an agency must demonstrate that its regulation is essential, as distinguished from helpful or desirable, to the accomplishment of its mission or execution of its functions in a manner which is consistent with the requirements of an effective and efficient Government. Air Logistics Center, 36 FLRA at 908. The Agency has not met its burden in this case.

First, we reject the Agency's argument that there is a compelling need for section C4707(3) of DoD's Joint Travel Regulations because the regulation is necessary to control costs. The logical extension of the Agency's argument is that any agency regulation that allows an agency to control operating costs should bar negotiations over otherwise negotiable conditions of employment. While financial considerations are relevant in determining whether an agency regulation satisfies the compelling need criterion set forth at section 2424.11(a), other considerations are also pertinent. Congress intended a regulation to bar negotiations only on narrow grounds. Cost factors alone do not justify finding a compelling need for an agency regulation. Lexington-Blue Grass Army Depot, Lexington, Kentucky and American Federation of Government Employees, AFL-CIO, Local 894, 24 FLRA 50 (1986). As noted by the court in American Federation of Government Employees v. FLRA, 785 F.2d 333, 337-38 (D.C. Cir. 1986) (per curiam):

[E]conomic hardship is a fact of life in employment, for the public sector as well as the private. Such monetary considerations often necessitate substantial changes. If an employer was released from its duty to bargain whenever it had suffered economic hardship, the employer's duty to bargain would practically be non-existent in a large proportion of cases. Congress has not established a collective bargaining system in which the duty to bargain exists only at the agency's convenience or desire, or only when the employer is affluent.

Second, the Agency has not shown that the regulation is essential to the accomplishment of the Agency's mission in an effective and efficient manner. While the Agency has provided general and conclusionary reasoning to support its argument that the proposals would be burdensome and would result in errors in the administration of travel expenses, it has acknowledged that many of the potential errors may be prevented by the implementation of a system that incorporates substantive aspects of Provision 1. In this regard, the Agency acknowledges that the various finance centers could become familiar with the respective agreements or could develop a computer program that identifies any entitlement to reimbursement for personal calls in order to properly process travel vouchers. Statement of position at 16-17. Additionally, the Agency does not address the potential which this additional benefit may have for positive effects on employee morale, retention and productivity. Therefore, we reject the Agency's contention that the regulation is essential to facilitate the accomplishment of the Agency's mission.

Based on the foregoing, we find that the Agency has failed to demonstrate that section C4707-3 of the JTRs, which prohibits the reimbursement of telephone expenses, is essential, as distinguished from helpful or desirable, to the accomplishment of its mission or the execution of its functions in a manner consistent with the requirements of an effective and efficient Government. See International Federation of Professional and Technical Engineers, Local 12 and Department of the Navy, Puget Sound Naval Shipyard, 24 FLRA 178, 181 (1986) (Puget Sound Naval Shipyard) (agency failed to meet its burden of establishing that the regulation was essential, as distinguished from merely helpful or desirable, to achieving its objective of reducing the costs associated with the collection of overpayments of travel advances).

Accordingly, we conclude that the second part of Provision 1 does not conflict with a regulation for which a compelling need exists and thus is within the duty to bargain.

b. DoD Directive No. 5500.7

We find that the portion of Provision 1 that provides for employees' use of Government telephones for personal calls while in a travel or temporary duty status does not conflict with an Agency regulation for which a compelling need exists. Therefore, we conclude that it is within the duty to bargain.

The Agency contends that this portion of Provision 1 is in conflict with DoD Directive No. 5500.7, § 2g, which provides in relevant part that:

(4) All DoD personnel are responsible for using office telecommunications services for official use only. The term "official use" means service directly in support of Government business or as otherwise approved by DoD Component authority, as defined by the DoD Component, who is in the supervisory or managerial chain of command, as being in the best interest of the Government.

We find that Provision 1 does not conflict with the Directive. The Directive limits the use of DoD office telecommunications service to "official use." It defines "official use" as service directly in support of Government business, and "as otherwise approved by DoD component . . . as being in the best interest of Government." Based on this standard established by the Directive to guide approval of the use of Government telephone services, we find that Provision 1 does not conflict with the Directive.

Provision 1 specifically provides that the use of Government telephone systems for personal business be in accordance with 41 C.F.R. § 201-38. As previously noted, 41 C.F.R. § 201-38 authorizes the use of Government telephone systems for "official business" and defines that term as including calls which "the agency determines as necessary in the interest of the Government." The terms "best interest of the Government" and "necessary in the interest of Government," are substantively the same and thus do not compel inconsistent results. Therefore, we find that Provision 1 is not inconsistent with the Agency regulation.

In so ruling, we find unpersuasive the Agency's argument that it has never approved the use of Government telephones for personal business to be within the best interest of the Government. In determining whether a proposal is inconsistent with an agency regulation for which a compelling need exists, the Authority examines the regulation on its face. Here, the Agency regulation grants the DoD components the authority to determine if the use of Government telephone systems is in the best interest of Government. As the DoD components have the ability to make such determinations, the Agency's argument that it has yet to exercise this authority is self-serving and not controlling in determining whether the proposal conflicts with the Agency's regulation. In addition, we find unpersuasive the Agency's argument that the question of whether the use of Government telephone systems "is within the best interest of Government" is factual and not ascertainable through the collective bargaining process. Statement of position at 6. Contrary to the Agency's contention, such a determination may be made during the collective bargaining process. See Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381, 1385 (D.C. Cir. 1988) (the determination of whether travel is in the public interest so as to constitute "official business" within the FTRs may be made at the bargaining table).

For the foregoing reasons, we conclude that, to the extent that Provision 1 permits use of Government telephone in accordance with 41 C.F.R. Part 201-38, it is not inconsistent with the Agency's Directive.

Even assuming that Provision 1 is inconsistent with DoD Directive No. 5500.7, § 2g, we find that the Agency has failed to establish that a compelling need exists for the regulation. The Agency raises basically the same arguments in support of its contention that there is a compelling need for this regulation that it argued in regard to the DoD Joint Travel Regulations. For the reasons stated above, we find that the Agency has not satisfied the compelling need criterion found at section 2424.11(a). As previously found, cost factors alone do not justify finding a compelling need for an agency regulation. American Federation of Government Employees v. FLRA, 785 F.2d at 337-38; Air Logistics Center, 36 FLRA at 908-10. Moreover, the Agency provides no support for its contention that the provision would have to be uniformly applied among civilian and military personnel. As noted earlier, generalized and conclusionary reasoning is not enough to support a finding of compelling need. FDIC, 21 FLRA at 881.

Additionally, although the Agency acknowledges that some improvement in employee morale could result from the ability of traveling employees to use Government phones for occasional personal use, the Agency contends that such an intangible benefit is insubstantial when compared to the estimated expense to the Agency of the calls. Statement of position at 11. In our view, there is significant potential enhancement of morale, and resultant employee retention and productivity, such a benefit would confer. In this regard, we agree with the Union (response at 8 n.5) that the Agency's argument is unavailing insofar as it contends that the provision would merely duplicate the benefit already conferred by the incidental expenses permitted as part of reimbursable per diem costs. Therefore, we reject the Agency's contention that the regulation is essential to facilitate the accomplishment of the Agency's mission.

Based on the foregoing, we find that the Agency has failed to demonstrate that DoD Directive No. 5-5007, § 2g, is essential, as distinguished from helpful or desirable, to the accomplishment of its mission or the execution of its functions in a manner consistent with the requirements of an effective and efficient Government. Puget Sound Naval Shipyard, 24 FLRA at 181.

Accordingly, we find that Provision 1 is not inconsistent with Federal law and does not conflict with any Agency regulation for which there is a compelling need. Therefore, Provision 1 is within the duty to bargain.

III. Provision 2

Article 22

Definitions. For the purpose of this Article, the following definitions apply:

. . . . . . .

f. Appraiser. The immediate supervisor, or other designated individual, who is at least one grade level above the employee, and who, also, consistently monitors the work performance of the employee.

g. Reviewing Official. The individual who assigns, controls, and is responsible for the work of the appraiser.

A. Positions of the Parties

The Agency asserts that Provision 2 is nonnegotiable because it excessively interferes with management's right to assign work under 7106(a)(2)(B) of the Statute. The Agency argues that the provision defines certain terms relating to the Agency's performance appraisal system in such a way as to require management officials to meet certain qualifications requirements or perform certain functions before they may perform other functions related to performance appraisal.

In response, the Union argues that the provision simply reflects the Agency's own guidelines relating to the selection and assignment of reviewing personnel and does not attempt to dictate or interfere with the assignment of such personnel. In regard to subsection (f), the Union argues that it is not written as a directive, but merely as a guideline for the Agency. It further argues that the language "or other designated individual" preserves the Agency's discretion to change its existing practice by allowing it to name a person of equal grade to the employee being evaluated if the Agency deems it necessary. Subsection (g), the Union argues, merely identifies the reviewing official's position and establishes no limitation on who can be appointed to that job or what specified duties the Agency may or may not assign to the employee it selects to fill the position.

B. Analysis and Conclusions

Subsection (f) of Provision 2, by definition, requires the Appraiser to be at least one grade level above the employee to be appraised and to have consistently monitored the employee's work performance. We find this proposal to be nonnegotiable because it directly interferes with the Agency's right to assign work.

In National Treasury Employees Union and Department of Treasury, Financial Management Service, 29 FLRA 422, 423-24 (1987) (Provision 2) (Financial Management Service), we reviewed a provision similar in effect to Provision 2, subsection (f). We found that the provision prohibited the selection on the rating and ranking panel of union officers or stewards or any employee at a lower grade than the position to be filled. We concluded that the disputed provision, by prohibiting the assignment of membership on the panel to certain employees, was nonnegotiable because it directly interfered with the section 7106(a)(2)(B) right to assign work.

Provision 2 in the instant case concerns the appraiser position, which the Agency utilizes to implement its performance appraisal system. Because Subsection (f) of Provision 2 would prevent management from designating as an appraiser an individual who is not at least one grade above the employee to be appraised and who has not consistently monitored the employee's work performance, it is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Although the Union argues that subsection (f) of the provision does not place such requirements on the Agency, the Union's stated intent is inconsistent with the plain wording of the provision. Where a union's statement of intent is inconsistent with the wording of a proposal or provision, we will base our decision on the interpretation of the proposal or provision which is consistent with the plain wording. National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 35 FLRA 26 (1990).

The designation of a particular management official to perform specified tasks is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643, 652 (1988) (Bremerton). The Union incorrectly interprets Bremerton to permit the designation of particular management officials if the agency retains the discretion to name other personnel to do the task. Response at 16. Rather, Bremerton merely advised the parties in that case that the defect in the portion of a disputed provision that assigned a specific function to a particular official could be cured if the reference to that official were removed.

Subsection (g) of Provision 2 restricts the "Reviewing Official" "to an individual who assigns, controls and is responsible for the work of the appraiser." Thus, by preventing the Agency from assigning the duties and responsibilities of the reviewing official to an individual who does not perform the specified duties, subsection (g) similarly interferes with management's right to assign work. See Bremerton, 32 FLRA at 652; Financial Management Service, 29 FLRA at 423-24.

The Union's suggestion that the wording of Provision 2 is consistent with the Agency's own guidelines does not lead us to conclude that the provision is negotiable. As discussed above, management's right to assign employees under the Statute includes the determination of qualifications for the positions of appraiser and reviewing official. Even if the provision simply restates an existing Agency guideline, as claimed by the Union, it nonetheless directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute because including the position in the parties' agreement would prevent the Agency from changing the definition during the life of the agreement. See Bremerton, 32 FLRA at 651.

Accordingly, we find that Provision 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and thus is outside the duty to bargain.

IV. Order

The petition for review as to Provision 2 is dismissed. The Agency must rescind its disapproval of Provision 1.(*)




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