43:0374(37)NG - - IFPTE Local 25 and Navy, Mare Island Naval Shipyard, Vallejo, CA - - 1991 FLRAdec NG - - v43 p374
[ v43 p374 ]
The decision of the Authority follows:
43 FLRA No. 37
FEDERAL LABOR RELATIONS AUTHORITY
INTERNATIONAL FEDERATION OF PROFESSIONAL
U.S. DEPARTMENT OF THE NAVY
MARE ISLAND NAVAL SHIPYARD
November 29, 1991
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) concerning the negotiability of one proposal.
For the following reasons, we find that the proposal, which requires the Agency to give travel advances to employees who choose not to use a Government credit card and which provides that the Government will be the owner of the credit card and be billed for all charges, is nonnegotiable because it is inconsistent with Government-wide regulations.
II. The Proposal
Unit members will not be required to possess a charge card for government travel. Unit members will not suffer any/all loss in advances for government travel regardless of charge cards or travel frequency.
I. The card owner is the government, not the Unit member. All charges will be billed the [sic] government.
II. Unit members leaving the yard will be required to turn-in [sic] their card.
III. Unit members will be responsible for card security.
(Only the underlined portions are in dispute.)
III. Positions of the Parties
A. The Agency
The Agency contends that the proposal is nonnegotiable under section 7117(a)(1) of the Statute because it conflicts with Government-wide regulations.
Specifically, with respect to the first sentence in dispute, the Agency asserts that sections 301-10.3(b)(1) and (c)(4) of the Federal Travel Regulations (FTRs) preclude the issuance of travel advances to employees who choose not to use a contractor-issued charge card. According to the Agency, the first sentence in dispute would allow employees who choose not to use a Government charge card to receive travel advances "in circumstances where such advances are precluded by a Government-wide regulation[.]" Statement of Position at 2. Accordingly, the Agency argues that the first disputed sentence is nonnegotiable. The Agency relies on 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, 172 (1990) (Port Hueneme) in support of its position.
The Agency contends that the second and third disputed sentences of the proposal, which would require that the "Government be the charge card owner and that all charges be billed to the Government[,]" are nonnegotiable because they conflict with sections 301-15.44 and 301-15.45 of the FTRs. Statement of Position at 3. The Agency recognizes that the Comptroller General has issued two unpublished decisions "wherein he stated that he had no legal objection to two agencies using corporate (employer) charge cards" but the Agency argues that the "charge cards [in those cases] were to be issued under very limited circumstances" not present here. Id.
B. The Union
The Union asserts that the proposal is consistent with applicable Government-wide regulations and is "ipso facto negotiable." Response at 1. The Union states that if the Authority "chooses to favor the [A]gency position[,] then, . . . the Authority [should] view the disputed proposals in light of reasonable accommodation to injured Unit members, and subject of impact/implementation bargaining." Id. The Union notes that "Comptroller General decisions allow appropriate arrangements between the [p]arties, which are not in violation of statute." Id. at 3.
With respect to the first disputed portion of the proposal the Union argues that as use of credit cards by employees is voluntary, unit members should not "suffer loss of lodging and rental car advances[.]" Petition for Review, Attachment 2. The Union argues that Port Hueneme and the Government-wide regulations discussed in that case and cited by the Agency in its Statement of Position are not controlling because they "apply to frequent travelers, which are beyond the meaning of the Union proposal." Response at 1. In this regard the Union maintains that the proposal "does not address frequent travelers - more than two separate travel periods." Id.
Similarly, with respect to the second and third disputed sentences of the proposal, the Union states that the proposal is limited in its applicability to employees who travel infrequently and that the FTRs allow for "centrally billed" accounts. Id. at 2. The Union argues that the proposal is, therefore, consistent with Government-wide regulation.
IV. Analysis and Conclusions
As a preliminary matter, we note the Union's assertion that the proposal is not intended to apply to employees who travel frequently, a group the Union defines as those who have "more than two separate travel periods" per year. Id. at 1. However, the first disputed sentence of the proposal expressly provides that it is to apply "regardless of . . . travel frequency." We do not base a negotiability determination on a statement of intent that is inconsistent with a proposal's plan wording. For example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 1366, 1373 (1991).
With regard to the second and third disputed sentences, we note that even if the proposal is meant to apply only to those employees who travel twice a year or less, that interpretation would not affect our determination because the relevant regulations apply to employees who travel as infrequently as twice a year. See 41 C.F.R. § 301-10.1(c).
The first disputed portion of the proposal would allow those employees who choose not to use a Government credit card to receive travel advances. The proposal is similar to a disputed proposal in Port Hueneme, which allowed "employees who do not wish to use a charge card to receive up to 80 percent funding for a travel advance[.]" 36 FLRA at 172. The Authority found that the proposal in Port Hueneme was inconsistent with Federal Property Management Regulation (FPMR), Temporary Regulation A-34, paragraph 1-10.3.c.(4), a Government-wide regulation, which "preclude[d] the issuance of travel advances to employees who choose not to use a contractor-issued charge card." Id.
The FPMR involved in Port Hueneme has been permanently codified at 41 C.F.R. § 301-10.3(c)(4), a part of the FTRs, and is a Government-wide regulation. International Federation of Professional and Technical Engineers, Local 28 and National Aeronautics and Space Administration, Lewis Research Center, Cleveland, Ohio, 38 FLRA 1123, 1127 (1990) (NASA). In NASA, the Authority addressed the regulation in connection with a proposal that would have required the agency to provide employees with certain travel advances. The Authority noted that travel advances may be provided under the FTRs only for certain expenses. The Authority also noted that although the FTRs provide exceptions to the limitations on travel advances, the exceptions do not apply, under section 301-10.3(c)(4), to employees who choose not to use a contractor-issued charge card. As the disputed proposal in NASA would have encompassed travel advances for expenses other than those authorized and would have required the agency to provide advances to employees who were not eligible for such advances, the Authority concluded that the proposal was nonnegotiable. Id. at 1127-28.
The proposal in this case expressly would require the Agency to provide travel advances to employees who elected not to use a Government credit card. As such, the proposal encompasses employees who, under 41 C.F.R. § 301-10.3(c)(4), are not eligible for travel advances. Moreover, like the disputed proposal in NASA, the proposal would encompass expenses for which travel advances are not authorized. Accordingly, consistent with NASA and Port Hueneme, we conclude that this portion of the proposal is inconsistent with that Government-wide regulation and is nonnegotiable under section 7117(a)(1) of the Statute.
The second and third sentences of the proposal would provide that the Government is the credit card owner and that all charges would be billed to the Government. As noted, the Agency cites, in connection with these portions of the proposal, the Comptroller General's unpublished opinion in B-237883 (Jan. 5, 1990). In that case, the Comptroller General found no objection to the issuance by the Department of Commerce of "corporate charge cards, which are billed to the agency itself rather than to individual employees, . . . to obtain group training facilities which may be chosen on short notice in remote locations." Comp. Gen. No. B-237883, slip op. at 1 (Jan. 5, 1990) (unpublished). The Comptroller General noted that the agency had established numerous limitations on the use of such cards and that the "charge cards billed to individuals [were] unsuitable" for the expenses to be encompassed by the cards. Id. The Agency also notes Comp. Gen. No. B-230696 (March 30, 1988) (unpublished). In that case, the Comptroller General found no objection to an agency proposal to use corporate charge cards for the limited purpose of enabling officials to pay for expenses incurred by foreign inspection teams in connection with verification of the Intermediate Nuclear Forces Treaty.
We find nothin