38:0263(29)NG - - NTEU and Treasury, Bureau of Alcohol, Tobacco and Firearms - - 1990 FLRAdec NG - - v38 p263

[ v38 p263 ]
The decision of the Authority follows:

38 FLRA No. 29











November 21, 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 by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns three proposals pertaining to the impact of the Agency's decision to contract out to the Department of Agriculture (DOA) the payroll accounting functions previously performed by Agency personnel. Under the new DOA payroll processing system, bargaining unit employees are paid on Thursday instead of on Monday, as had been the practice under the previous payroll system. Because the conversion to the new payroll system has been effectuated, the Agency has filed a motion to dismiss the appeal as moot.

We find that Proposal 1, which requires the Agency to pay unit employees for 3 extra workdays on the last paycheck issued before converting to the DOA system, is moot because the last paycheck under the previous system has already been issued. We find that Proposal 2, an alternative proposal concerning the use of the Agency's imprest fund or other appropriate fund to pay for the 3 workdays described in Proposal 1, is not moot, but is outside the duty to bargain because it conflicts with law. We find that Proposal 3, concerning the Union's requirements for electronic processing of dues withholding, is not moot, but is not properly before us because the Union has reworded this proposal in its Response and has not obtained an Agency allegation of nonnegotiability pertaining to the reworded proposal.

II. Agency's Motion to Dismiss

A. Positions of the Parties

The Agency contends that the Union's Petition for Review should be dismissed because the conversion to the new payroll system has already been effectuated and, therefore, the dispute between the parties is moot. The Agency argues that because the underlying dispute between the parties is moot, an order to bargain about proposals concerning the disputed conversion to the new payroll system would serve no purpose. In support of this contention, the Agency cites National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA 1041, 1054 (1987) (Region X), where the Authority found that a dispute over two proposals concerning the prospective implementation of a reduction-in-force (RIF) was moot because the RIF had been implemented.

The Union contends that the Agency cannot file a motion to dismiss, but may only withdraw its allegation of nonnegotiability or file a statement of position. The Union also contends that the proposals in dispute are not moot because the impact of the conversion to the DOA's payroll system can be "mitigated by these proposals at any time before [the employees] leave the employ of the [Agency], by granting them the three days of pay prior to their departure date." Opposition to Motion to Dismiss at 2.

B. Analysis and Conclusions

We conclude that the Agency appropriately has filed a Motion to Dismiss. However, we conclude that only Proposal 1 is moot.

We have previously stated that we will dismiss petitions for review of negotiability issues in cases where a proposal requires some action on a date that has passed and there is no explanation in the record as to how the proposal could be implemented. National Treasury Employees Union and Department of Treasury, Internal Revenue Service, 35 FLRA 7, 11 (1990). Moreover, as noted by the Agency, the Authority has also dismissed petitions for review in situations where a dispute has been rendered moot by the passage of time and a bargaining order would serve no purpose. Region X, 25 FLRA at 1054. Accordingly, the alleged mootness of the Union's appeal was appropriately raised by the Motion to Dismiss.

Proposal 1 provides as follows:

Employees will receive a paycheck covering seventeen workdays the last paycheck of the current system. The larger paycheck will not be subject to any reimbursement requirement, because it will be payment for services rendered.

By reference, this proposal specifically states the date on which the action proposed by the Union must occur: June 12, 1989, the date of the last paycheck under the previous payroll accounting system. Agency Motion to Dismiss, Exhibit A. Consequently, the date on which the action was to occur has passed and the Union offers no explanation as to how Proposal 1 can be implemented. In our view, the passage of time has rendered Proposal 1 moot and a bargaining order can serve no purpose. Accordingly, we will dismiss the Union's petition for review as it relates to Proposal 1. However, Proposals 2 and 4 do not specify a date on which the proposed action is to occur and are not moot as a result of the payroll conversion. Accordingly, we deny the Agency's motion to dismiss with respect to these proposals.

III. Proposal 2

If the above is illegal, or proven to be technologically unfeasible, employees will receive financial assistance from the imprest or other available Bureau funds for three full days of take home pay during the seventeen day pay period. This money will be nonrefundable, because it will be payment for services rendered.

A. Positions of the Parties

The Agency contends that Proposal 2 would require it to pay bargaining unit members for 3 extra workdays in addition to the 10 workdays included in their biweekly pay period. The Agency notes that Federal law "prohibits Federal employees, whose compensation is fixed, from receiving any additional pay, unless specifically authorized by law." Statement of Position at 2-3 (citing 5 U.S.C. § 5536). The Agency contends that because there is no appropriation or law authorizing the extra pay, it is prohibited from making the payments.

The Union disputes the Agency's contention that this proposal is contrary to law. The Union contends that the Agency has mischaracterized this proposal by alleging that the proposal prescribes "an additional salary payment for work not performed." Union Response at 2. The Union contends that the proposals expressly state that unit employees "will only be paid for services rendered." Id. Therefore, the proposal would not violate 5 U.S.C. § 5536. Moreover, the Union asserts that it introduced the proposal in order "to mitigate the harm done to employees by [the Agency's] addition of a three day pay lag to the receipt of their pay checks." Id. The Union also contends that employees would not be paid twice for the same 3 workdays because "the proposal would require [the Agency] to adjust the final departure paycheck received by employees to ensure that no double payment for those days took place." Id. Moreover, the Union states that it does not "propose [a salary] advance" under 5 U.S.C. § 5522, but rather is proposing that the Agency pay "employees for three days of services rendered to ameliorate the cash shortfall resulting from [the Agency's] conversion to a new payroll system." Id. at 3. Finally, it asserts that 5 U.S.C. §§ 5501 et seq. does not preclude the Agency from "paying employees timely for their work." Id.

B. Analysis and Conclusions

Proposal 2 describes the action to be taken by the Agency if Proposal 1 can not be implemented. The proposal would require the Agency to provide its employees with "financial assistance from the imprest or other available [Agency] funds for three full days of take home pay during the seventeen day period."

The Union does not refute the Agency's contention that this proposal would require it to pay each bargaining unit member 3 additional days of pay along with their regular biweekly pay. In this regard, we also note that the Union suggests that any problem with a "double payment" can be remedied by the "technical adjustment" of deducting the additional pay from each employee's "final departure check." Union Response at 2.

There is nothing in the record to indicate that the proposal would provide for a reduction in the biweekly pay of unit employees in the paycheck following the payment for the 3 additional workdays in order to offset that payment. Without an immediate 3-day reduction in pay in the next paycheck, the payment cannot be "only . . . for services rendered" as stated by the proposal and, in our view, is not authorized by law. Consequently, implementation of Proposal 2 would result in a violation of 5 U.S.C. § 5536, which expressly provides that a Federal employee may not receive any additional pay or allowances "unless specifically authorized by law." Moreover, we find no basis to avoid this conclusion on the ground that there could be a "technical adjustment" in the last paycheck an employee receives on separation from the Agency because such an adjustment may be years later.

In our view, this case is similar to the situation presented to the Comptroller General in B-131587 (December 21, 1977; affirmed on reconsideration March 24, 1978). That case involved a union proposal in response to the result of a merger of school systems in what was then the Canal Zone. Because the teachers were paid their 12-month salaries during the 9 months of the school year and not during school vacation periods and because the sc