38:1123(90)NG - - IFPTE Local 28 and NASA, Lewis Research Center, Cleveland, OH - - 1990 FLRAdec NG - - v38 p1123



[ v38 p1123 ]
38:1123(90)NG
The decision of the Authority follows:


38 FLRA No. 90

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND TECHNICAL ENGINEERS

LOCAL 28

(Union)

and

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

LEWIS RESEARCH CENTER

CLEVELAND, OHIO

(Agency)

0-NG-1776

DECISION AND ORDER ON NEGOTIABILITY ISSUES

December 20, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a petition for review filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of four proposals regarding travel expenses. The proposals were submitted in bargaining between the parties on the implementation of Federal Property Management Regulation (FPMR) Temporary Regulation A-34 and Federal Travel Regulation (FTR) Temporary Regulation 3.

Proposal 1 would require the Agency to determine the amount of money estimated to be saved by using travel charge cards so as to justify the requirement that employees continue to use those cards. If sufficient savings cannot be realized, employees would have the option of using the travel charge card or a cash advance. We find that Proposal 1 is inconsistent with sections 301-10.3(b) and 301-10.3(c)(4) of the FTRs and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

Proposal 2 allows employees who travel two to four times a year to use a travel charge card or travelers checks. In addition, under certain circumstances, employees who travel are to have an option of using travel charge cards, personal funds or personal credit, or to use some other method provided by the Agency which does not require the employee to pay expenses from personal funds or personal credit. We find that Proposal 2 is inconsistent with sections 301-10.1(c), 301-10.3(b)(1), 301-15.44(c), and 301-15.45(b) of the FTRs and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

Proposal 3 establishes an alternate procedure for the Agency to reimburse the employee upon the employee's receipt of a billing statement from the travel charge card company. Proposal 3 is inconsistent with law, 31 U.S.C. § 3325, and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

Proposal 4 requires the Agency to take "all reasonable steps" to protect the employee from any adverse impact caused by use of a travel charge card. We find that Proposal 4 is negotiable because it simply requires the Agency to make recommendations to the General Services Administration (GSA) regarding the agreement between GSA and the company issuing the credit card and, therefore, it is not inconsistent with law and regulation.

II. The Federal Travel Regulations

The Office of Management and Budget (OMB) issued OMB Bulletin 88-17, Limiting Travel Advances to Manage Cash More Effectively. That bulletin addressed the large amount of funds outstanding due to travel advances for Government Employees. The Administrator of General Services was directed to develop policies for civilian employee travel to reduce the amount of funds outstanding for travel. Those policies were incorporated into the FTRs.

The FTRs have been codified at 41 C.F.R. Chapters 301, 302, 303, and 304. 54 Fed. Reg. 20262 (1989). The FTRs apply to official travel, including travel advances, of civilian employees of Government agencies, including civilian employees of the Department of Defense, 41 C.F.R. § 301-1.2(a). See, for example, Travel and Transportation Expense Payment System Using Contractor-Issued Charge Cards, Centrally Billed Accounts, and Travelers Checks, 41 C.F.R. Subtitle F, 54 Fed. Reg. 20360, 48611 (1989); 41 C.F.R. § 301-10.3, 54 Fed. Reg. 20292 (1989). See generally National Association of Government Employees, Local R12-40 and Federal Union of Scientists and Engineers, Local R12-198 and U.S. Department of the Navy, Naval Ship Weapon Systems Engineering Station, Port Hueneme, California, 36 FLRA 168 (1990) (Port Hueneme).

The GSA issued FPMR Temporary Regulation A-34, Limiting Travel Advances to Manage Cash More Effectively. 54 Fed. Reg. 14652 (1989). That regulation has been codified as a part of the FTRs at 41 C.F.R. part 301-10. 55 Fed. Reg. 11018 (1990).

The FTRs state that "[a]gencies shall offer Government contractor-issued charge cards to all employees who are expected to travel at least twice a year (frequent travelers)." 41 C.F.R. § 301-10.1(c). The FTRs state that "[t]he employee shall use the charge card to pay for official travel expenses to the maximum extent possible." 41 C.F.R. § 301-15.44(c). The FTRs also provide for those situations where an employee has elected not to use the charge card. 41 C.F.R. § 301-10.3(c)(4).

The Authority has found that the FTRs are "Government-wide" regulations within the meaning of section 7117(a)(1) of the Statute. American Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446, 447 (1983). See also American Federation of Government Employees, AFL-CIO, Local 3232 and Department of Health and Human Services, Social Security Administration, Region II, 31 FLRA 355, 358-59 (1988).

III. Proposal 1

(2) As a result of the above agreed to objectives before this agreement is implemented, the management of LeRC [Lewis Research Center] will determine an estimate of the dollar amount saved or lost with the use of DCCC [Diners Club Credit Card]. If at least a 2% savings cannot be reasonably estimated then it will be the option of the employee whether to use a DCCC on travel or receive a cash advance. If it is estimated at the program initiation that such a savings can be realized then at the anniversary date of this agreement a third party, such as a financial analyst, shall evaluate the savings or loss. If at least a 2% savings cannot be estimated for the upcoming year then it will be the option of the employee whether or not to use a DCCC. Such an analysis shall be repeated every 3 years after the 2nd above-referenced estimate.

A. Positions of the Parties

The Agency contends that two aspects of Proposal 1 are nonnegotiable because they involve the FPMR A-31 and FTR Temporary Regulation 3, which are Government-wide regulations. Agency's Statement of Position at 2.

First, the Agency asserts that Proposal 1 would require the Agency to perform an analysis to justify use of the travel charge card program and to repeat the analysis at stated intervals. The Agency argues that the mandatory reexamination of the costs and benefits of the use of the travel charge card would "substantively contravene the conclusiveness of the cost/benefit determination already made by GSA on behalf of the entire Federal government." Agency's Statement of Position at 3.

Second, the Agency claims that, based on the results of the analysis, the Agency would be required to establish procedures for providing cash travel advances for types of "major" travel expenses that are outside the limitations for cash advances under paragraph 1-10.3.b.(1) of Temporary Regulation A-34 and paragraph 8.a. of Temporary Regulation 3. The Agency argues that the cash advance requirement is inconsistent with those items for which a cash advance is provided under "cash transaction expenses" under the cited regulations. Id. at 3-4.

The Union asserts that under Proposal 1, management must evaluate the fiscal effect of its travel requirements. The Union states that "[i]f it can be shown that an actual reasonable saving can materialize, the Union would agree to the non-voluntary aspects of the use of the [travel charge card]. If it cannot be shown that an actual reasonable savings can materialize, then the entire program would be on a voluntary basis." Union's Petition for Review at 2.

B. Analysis and Conclusion

Proposal 1 requires the Agency to perform an analysis of the potential savings from use of travel charge cards. If a savings of at least 2 percent cannot be expected, employees will have the option of requesting cash advances instead of using the travel charge cards. Proposal 1 also requires that the analysis be repeated at stated intervals. We find that Proposal 1 is inconsistent with the FTRs and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

The FTRs apply to official travel, including travel advances, of civilian employees of Government agencies. 41 C.F.R. § 301-1.2(a). The FTRs are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. Accordingly, the FTRs are binding on the Agency.

The FTRs state that cash advances may be provided to employees on official travel for "cash transaction expenses," which are limited to: (1) meals and incidental expenses; (2) miscellaneous transportation expenses such as transit system fares, taxi fares, parking fees, and tolls; (3) gasoline and other variable expenses covered by mileage allowance when using a privately owned vehicle for official business; and (4) other authorized miscellaneous expenses which cannot be charged using a charge card. 41 C.F.R. § 301-10.3(b). Travel expenses such as rental car fees, lodging expenses, and airline fares are not included as "cash transaction expenses." Id. Because such expenses are not considered to be "cash transaction expenses," an agency cannot provide cash advances to cover them. Therefore, "major" travel expenses, such as airline tickets, hotel expenses, and rental car fees, are not "cash transaction expenses" for which cash advances may be made. Id.

Although the FTRs include limitations on travel advances, the FTRs also provide for exceptions to those limitations. However, the FTRs specify:

Exception precluded. This exception authority may not be exercised in situations where the employee has elected not to use alternative funding resources made available by the Government, i.e., Government contractor-issued charge cards or travelers checks. This exception authority may not be exercised for travelers whose Government charge cards have been suspended or revoked because of delinquent payments.

41 C.F.R. § 301-10.3(c)(4).

Thus, section 301-10.3(c)(4) of the FTRs precludes the issuance of travel advances to employees who choose not to use a contractor-issued charge card. If the conditions set forth in Proposal 1 are met, the proposal would require that travel advances be paid to employees who choose not to use charge cards. Because Proposal 1 would require travel advances to be paid to employees for "major" expenses, such as transportation, lodging, and rental cars, which are beyond the items covered as "cash transaction expenses," and because the proposal would require advances to be paid in situations not encompassed within the limited exceptions permitting such travel advances, we find that Proposal 1 is inconsistent with an applicable Government-wide regulation. Therefore, it is nonnegotiable under section 7117(a)(1) of the Statute. See Port Hueneme, 36 FLRA at 172.

IV. Proposal 2

(4) [W]henever there is at least a 2% savings LeRC will take the following steps:

a. Unit members who are expected to be required to travel for their job at least twice a year but less than five times per year . . . . will be allowed the option of using either the DCCC or travelers checks issued by the Agency to pay official travel expenses, including transportation, meals and lodging.

b. For purposes of official travel, all unit members will have the option of purchasing common carrier transportation with their DCCC, personal funds or other personal credit, or through some other method provided by the Agency which would not require the unit member to pay those expenses from their personal funds or credit, including but not limited to the government issued DCCC.

c. For purposes of official travel, unit members who travel at least 5 times a year will have the option of purchasing lodging with their DCCC, personal funds or other personal credit, or through some other method provided by the Agency.

d. For purposes of official travel, all unit members will have the option of renting cars with their DCCC, personal funds or other personal credit, or through some other method provided by the Agency which would not require the unit member to pay those expenses from their personal funds or credit, including but not limited to the government issued DCCC.

A. Positions of the Parties

The Agency contends that Proposal 2 is nonnegotiable for the same reasons that Proposal 1 is nonnegotiable, because Proposal 2 is premised on the results of the proposed analysis envisioned in Proposal 1. The Agency argues that Proposal 2 is also nonnegotiable because it requires the Agency to provide either travelers checks or "some other method" to pay for major travel expenses which are not within the expenses covered under the FTRs as cash transaction expenses. Agency's Statement of Position at 4-5.

The Agency argues that Proposal 2 requires the issuance of travelers checks in circumstances where the FTRs do not provide for issuance of travelers checks. The Agency refers to paragraph 1-10.3 of Temporary Regulation A-34 and paragraph 8.c. of Temporary Regulation 3. Id. at 5.

The Agency also contends that the requirement in Proposal 2 that the Agency provide "some other method" of paying for travel expenses is nonnegotiable. The Agency claims that during negotiations, the Union mentioned only cash or some form of centrally billed account as "some other method." The Agency states that it has already addressed the impermissible use of cash advances. The Agency maintains that the Government-wide regulations governing centrally billed accounts for travel expenses make it clear that they are to be used to supplement contractor-issued credit cards rather than act as an "other method" of paying for major travel expenses. In this regard, the Agency cites Temporary Regulation A-34, paragraph 1-10.3.b. Id.

The Union states that Proposal 2 is negotiable for the reasons discussed in connection with Proposal 1. Union's Petition for Review at 2.

B. Analysis and Conclusion

Whenever there is at least a 2 percent savings, Proposal 2 would require the Agency to offer travelers checks, instead of requiring the use of a travel charge card, to employees traveling more than two but fewer than five times a year. The proposal also requires the Agency to provide "some other method" for travel expenses. We find that Proposal 2 is nonnegotiable for the same reasons as discussed in connection with Proposal 1. We further find that Proposal 2 is inconsistent with sections 301-10.1(c), 301-10.3(b), 301-15.44(c), and 301-15.45(b) of the FTRs, which are Government-wide regulations. Therefore, Proposal 2 is nonnegotiable under section 7117(a)(1) of the Statute.

Proposal 2 is nonnegotiable for the same reasons as discussed in connection with Proposal 1. Proposal 2 requires the Agency to take specific actions when there is at least a 2 percent savings. However, the FTRs do not permit agencies to condition compliance with those regulations based on an extraneous calculation of savings.

Subsection (a) of Proposal 2, which allows frequent travelers an option in using travelers checks, is inconsistent with sections 301-10.1(c) and 301-15.44(c) of the FTRs, which mandate the use of the travel charge card for employees who travel more than twice a year. Accordingly, because Proposal 2 is inconsistent with sections 301-10.1(c) and 301-15.44(c) of the FTRs, which are Government-wide regulations, we conclude that Proposal 2 is nonnegotiable under section 7117(a)(1) of the Statute. See Port Hueneme, 36 FLRA at 172-73.

Subsections (b), (c), and (d) of Proposal 2 provide that the Agency shall make available "some other method" to pay for travel expenses. The Agency stated that the only examples of "some other method" mentioned during bargaining were cash and centrally billed accounts. Because this information was not refuted by the Union, we shall adopt it for the purposes of our analysis.

Interpreted in this manner, subsections (b), (c), and (d) of Proposal 2 provide that the Agency shall make cash available as "some other method" to pay for travel expenses. Our analysis in Proposal 1 has already addressed those "cash transaction expenses" for which a cash advance is available. Because Proposal 2 applies to types of expenditures, such as common carrier transportation, lodging, and rental cars, which are not encompassed as "cash transaction expenses," it is inconsistent with 41 C.F.R. § 301-10.3.(b)(1), a Government-wide regulation. Therefore, Proposal 2 is nonnegotiable under section 7117(a)(1) of the Statute.

As construed above, the phrase "some other method" of payment as used in Proposal 2 could also mean a centrally billed account. The FTRs state:

Use of centrally billed accounts. Centrally billed accounts may be used only if agencies use a TMC [Travel Management Center] or agency travel office. They are intended principally to supplement the individual card, rather than as the sole means of purchasing transportation tickets for all agency employees.

41 C.F.R. § 301-15.45(b). Because Proposal 2, as construed to include centrally billed accounts, does not limit the use of centrally billed accounts to situations using a TMC or an agency travel office, it is inconsistent with 41 C.F.R. § 301-15.45(b). Accordingly, because Proposal 2 is inconsistent with 41 C.F.R. § 301-15.45(b), which is a Government-wide regulation, Proposal 2 is nonnegotiable under section 7117(a)(1) of the Statute.

V. Proposal 3

(7) In the event payment on a claim is not received by the unit member during the time period within which the Agency is required to reimburse the unit member for official travel expenses, due to no fault of the unit member, and the member has received a billing statement reflecting payment due for the claim, the matter will be resolved as follows: The unit member will present a copy of the billing statement to the appropriate management official. The Agency will then issue a check reimbursing the unit member's official travel expenses reflected on that billing statement by the close of the next business day after the billing statement has been presented.

A. Positions of the Parties

The Agency contends that the Government is to assume no liability for charges incurred on employee charge cards. The Agency references paragraph 13.b of Temporary Regulation 3. The Agency argues that Proposal 3 would require the Agency to assume just such liability. The Agency maintains, therefore, that Proposal 3 is inconsistent with a Government-wide regulation. Agency's Statement of Position at 6.

The Agency also asserts that a disbursing official in the executive branch can disburse money only as provided by a properly certified voucher. 31 U.S.C. § 3325. The Agency maintains that Proposal 3 would require the disbursement of funds upon the employee's presentation of a billing statement, regardless of proper certification and voucher. Therefore, the Agency argues that Proposal 3 is inconsistent with 31 U.S.C. § 3325 and is nonnegotiable. Id.

The Union states that the intent of Proposal 3 is to minimize the financial burden on employees who travel. The Union states that "[a]ll the Union is requesting is for Management to have the monies ready for the expenses incurred by the traveler to be paid him/her as soon as possible after the trip." Union's Petition for Review at 2.

B. Analysis and Conclusion

Proposal 3 provides for the Agency to issue a check to an employee to reimburse the employee for travel expenses when the employee presents a billing statement for travel expenses for which the employee has not yet been reimbursed. The Agency would have until the close of the next business day to prepare the check. We find that Proposal 3 is inconsistent with law and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

Under 31 U.S.C. § 3325, agency disbursing officials are precluded from disbursing funds except upon certification of a voucher:

A disbursing official in the executive branch of the United States Government shall--

(1) disburse money only as provided by a voucher certified by--

(A) the head of the executive agency concerned; or

(B) an officer or employee of the executive agency having written authorization from the head of the agency to certify vouchers.

31 U.S.C. § 3325.

The Union had the opportunity to refute the Agency's interpretation of Proposal 3 to require payment upon presentation of a billing statement without a certified voucher, but did not do so. Accordingly, we find that Proposal 3 would require the Agency to issue a check to an employee upon presentation of a billing statement covering official travel expenses for which the employee had not already been reimbursed. Proposal 3 does not require that a certified voucher also be presented with the billing statement in order for the employee to receive a check for the travel expenses. To the extent that Proposal 3 requires that a check be issued for unreimbursed travel expenses upon presentation of a billing statement, without a certified voucher, Proposal 3 is inconsistent with law. Because Proposal 3 is inconsistent with law, it is nonnegotiable under section 7117(a)(1) of the Statute. See 13 Comp. Gen. 326 (1934); 4 Comp. Gen. 600 (1925).

Because we have found that Proposal 3 is inconsistent with law, we need not address the other arguments raised by the parties.

VI. Proposal 4

(8) The Agency shall take all reasonable steps to assure that the unit member is protected from any adverse impact caused by their use of the DCCC for official travel purposes, including but not limited to:

a. Steps to insure that Citicorp will not disclose any credit history information, including but not limited to information on any delinquent payments, involving unit members, to credit bureaus or otherwise to the public, or other departments of Citicorp, unless Citicorp has filed suit in a court of law to collect such delinquent payments;

b. Steps to assure that unit members will not be required to pay any part of any disputed billing to Citicorp pending resolution of that dispute;

c. Steps to assure that, so long as the unit member reports the loss of their DCCC within 48 hours of their discovery of such loss, the unit member will incur no charges associated with that loss.

A. Positions of the Parties

The Agency contends that employees are solely liable for all billed charges on their travel charge card in accordance with the terms of the contract between the contractor and GSA. The Agency cites paragraphs 9.b.(1), 9.c., and 13 of Temporary Regulation 3. Agency's Statement of Position at 6. The Agency argues that the proposal would require the Agency to alter the terms of that contract. The Agency states that alteration of a Government-wide contract is not an appropriate subject for impact and implementation bargaining. Id. at 7.

The Union asserts that Proposal 4 "would eliminate the hardship upon the traveler when there exists a possible dispute over allowed expenses." Union's Petition for Review at 2.

B. Analysis and Conclusion

Proposal 4 requires the Agency to take all reasonable steps to protect employees from any adverse effect resulting from the use of a travel charge card insofar as that adverse effect pertains to: (a) credit history information; (b) disputed billings or disputed allowable expenses; and (c) loss of a travel charge card if reported within 48 hours of their discovery of the loss. In our view, Proposal 4 would simply require the Agency to make recommendations to GSA regarding the terms of the master agreement with the credit card contractor. As so construed, the proposal is consistent with the FTRs, and, therefore, is negotiable.

GSA is responsible for the negotiation of the Government-wide agreement under which the contractor issues charge cards to Federal employees. See 41 C.F.R. §§ 301-15.40 and 301-15.44(b). The Agency claims that the Proposal 4 would "alter" the terms of that agreement. Agency's Statement of Position at 6-7. The Union does not dispute the Agency's claim.

To the extent that the matter at issue between the parties concerns the contract between GSA and the credit card contractor, it is not a matter which is within the Agency's authority, inasmuch as the Agency is not one of the contracting parties. The Agency could not be required to alter any of the terms of the cardmember agreement. However, that does not mean that the subject matter of the proposal is nonnegotiable. Among the "reasonable steps" the Agency could take under the proposal is to make recommendations to GSA concerning possible terms for the negotiation of any subsequent agreement with the credit card contractor.

In National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 644-45 (1990) (Environmental Protection Agency), the Union proposed that repairs to the fire alarm system or fuse boxes be confined to weekends or after regular working hours. We found that the fact that repairs to the building and its systems were the responsibility of the building owners did not make the proposal nonnegotiable. Rather, we held, relying on American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477, et al. and Library of Congress, Washington, D.C., 7 FLRA 578, 585-86 (1982), enforced sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983), that an agency is obligated to bargain on otherwise negotiable conditions of employment to the extent that it has discretion with respect to those conditions of employment. We concluded, based on the record in that case, that nothing precluded the agency from requesting "that the building ow