47:0155(9)NG - - AFGE, Local 3006 and DOD, NG Bureau, State of ID, Office of the Adjutant General - - 1993 FLRAdec NG - - v47 p155



[ v47 p155 ]
47:0155(9)NG
The decision of the Authority follows:


47 FLRA No. 9

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3006

(Union)

and

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

STATE OF IDAHO

OFFICE OF THE ADJUTANT GENERAL

(Agency)

0-NG-2081

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 19, 1993

_____

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 section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of three proposals.

The disputed proposals in this case were submitted by the Union in bargaining over the impact and implementation of the relocation of certain unit employees from Gowen Field, their former duty site, to the National Guard Maintenance and Training Equipment Site (MATES), approximately 23 miles away. Proposals 1 and 3 require the Agency, for 1 year, to pay employees who drive to and from MATES $0.21 per mile for the distance between Gowen Field and MATES. Proposal 2 requires the Agency to provide shuttle bus service for 1 year to transport employees, on duty time, to and from Gowen Field and MATES. For the following reasons, we find that the proposals are nonnegotiable.

II. Preliminary Matter

The Agency contends that the proposals are not properly before the Authority for a negotiability determination because: (1) the Union's Petition for Review as to Proposals 2 and 3 is untimely filed; and (2) Proposal 1 was never presented to the Agency and an allegation of nonnegotiability was never properly requested.

According to the Agency, on May 18, 1992, the Union requested an allegation of nonnegotiability on the two proposals, identified in the petition for review in this case as Proposals 2 and 3. The Agency served the Union with an allegation of nonnegotiability on June 29, 1992. Therefore, the Agency argues, under the Authority's Rules and Regulations the petition for review as to those proposals should have been filed no later than July 14, 1992. The Agency further states that on July 23, 1992, the Union submitted a third proposal, identified in the petition for review in this case as Proposal 1. The Agency asserts that Proposal 1 is not substantively different from Proposal 3. On July 30, 1992, the Agency wrote to the Union, restating the Agency's previous allegation of nonnegotiability. On August 10, 1992, the Union's national headquarters wrote the Agency requesting an allegation of nonnegotiability for the three proposals. The Agency wrote to the Union on August 18, 1992, and repeated its previous allegation of nonnegotiability.

The Agency asserts that a union must file a petition for review on negotiability issues within the time limits set forth in the Statute and the Authority's Rules and Regulations. The Agency argues that the timeliness of the Union's petition should be measured from June 29, 1992, because on that date the Agency alleged that Proposals 2 and 3 are nonnegotiable and because Proposal 1 is not substantively different from Proposal 3. As the Union failed to file its petition for review within 15 days of June 29, 1992, the Agency contends that the Union's petition is untimely. The Agency also asserts that Proposal 1 was never presented to the Agency for bargaining and, therefore, is not properly before the Authority.

The Union disputes the Agency's contentions and asserts that its petition for review was timely filed under section 7117 of the Statute. According to the Union, its letter of May 18, 1992, only transmitted proposals for bargaining and did not contain a request for an allegation of nonnegotiability from the Agency. The Union maintains that it did not request any allegation of nonnegotiability from the Agency until the letter of August 10, 1992, sent from its national headquarters. The Union contends that its petition for review is timely filed based on the Union's August 10, 1992, request and that the timeliness of its petition for review is not governed by the earlier unsolicited allegation of nonnegotiability from the Agency.

We find that the Union's petition for review is timely filed. We agree with the Union that its letter of May 18, 1992, containing Proposals 2 and 3, did not include a request for an Agency allegation of nonnegotiability as to those proposals. Based on the record, therefore, we conclude that the Agency's June 29, 1992, allegation of nonnegotiability was unsolicited.

A union is not required to respond to an agency's unsolicited written allegations of nonnegotiability. A union may ignore unsolicited allegations. See, for example, American Federation of Government Employees, National Border Patrol Council, Local 2544 and U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, Tucson, Arizona, 46 FLRA 930, 932-34 (1992), petition for review filed No. 93-70137 (9th Cir. Feb. 8, 1993); Federal Firefighters Association, Local 58 and Department of the Air Force, Otis Air National Guard Base, Massachusetts, 34 FLRA 855, 858-59 (1990). However, a union may elect to file an appeal from an unsolicited allegation of nonnegotiability and, if it elects to do so, it must file its appeal within the time limits prescribed in the Statute and in the Authority's Rules and Regulations. Id. In this case, the Union had a right to, and did, ignore the Agency's unsolicited allegation of June 29, 1992.

Because the Union chose to ignore the Agency's unsolicited allegation of June 29, 1992, the timeliness of the Union's petition for review is not measured from that date. Rather, the timeliness of the petition is measured from the Agency's August 18, 1992, response to the Union's request for an allegation of nonnegotiability. Based on the record, we find that, measured from August 18, 1992, the petition for review is timely filed.

The Agency also contends that the petition for review as to Proposal 1 is not properly before the Authority because the proposal was never presented to the Agency for bargaining and an allegation of nonnegotiability was never properly requested. In this case, the Union's national headquarters requested an allegation of nonnegotiability from the Agency regarding three proposals. The Agency did not reply to the request for an allegation of nonnegotiability, except to repeat its earlier unsolicited determination. However, in its Statement of Position, the Agency addressed the negotiability of both Proposal 3 and Proposal 1.

The Union states that Proposal 1 is a "rewrite" of Proposal 3. Response at 2. We find that Proposals 1 and 3 are not substantively different, that both proposals were presented to the Agency in the Union's request for an allegation of nonnegotiability, and that the Agency has addressed the negotiability of both proposals. Accordingly, we conclude that the petition for review is properly before the Authority for review. See, for example, Planners-Estimators, Progressmen and Schedulers Association, Local 5 and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 41 FLRA 297, 298 (1991); American Federation of Government Employees, Local 2429 and U.S. Department of the Air Force, Headquarters Space Systems Division, Los Angeles, California, 38 FLRA 1469, 1471 (1991).

III. Proposals 1 and 3

Proposal 1

With respect to those employees who have worked at Gowen Field and are to work at the MATES [f]acility, those employees who are not provided with transportation will be authorized $0.21 per mile for travel between the worksite at Gowen Field and the new Mates [sic] [f]acility for a transitional period of one year when using [a privately owned vehicle].

Proposal 3

Regarding a transition period of 12 months, the [A]gency will reimburse the mileage from Gowen Field to the new MATES facility for each bargaining unit member at the rate of $0.21 per mile per day worked.

A. Positions of the Parties

1. Agency

The Agency contends that Proposals 1 and 3 are inconsistent with 5 U.S.C. § 5704 because they require the Agency to pay employees' commuting expenses. The Agency interprets the proposals as requiring it to pay employees for mileage for a portion of the trip between their residences and the MATES worksite. According to the Agency, employees' travel to the MATES worksite is not "travel from one worksite to another" because the "facility at Gowen Field is no longer the worksite for the personnel" covered by the proposal. Statement of Position (Statement) at 2. The Agency argues that the starting and ending place of the commute under the proposals as written, that is, Gowen Field, "is not relevant, and should not be considered." Id. at 4-5.

2. Union

The Union states that Proposals 1 and 3 are "intended as procedures and/or appropriate arrangements to alleviate the adverse effects of the employer's decision to move the job site." Response at 3-4. The Union also states that the proposals would continue "the existing arrangement whereby Gowen Field is the duty station of affected employees." Id. at 4; see also id. at 5, 15. According to the Union, the proposals are only intended to be in effect for 1 year and, after that period, "the parties would negotiate either an extension or modification of the practice." Id. at 5.

The Union states that Proposal 1 is a revised version of Proposal 3 that "would only take effect in the event the employer [chose] not to furnish shuttle service between Gowen Field and the MATES facility." Id. at 15. The Union argues that because the proposals would designate Gowen Field as an employee worksite and, therefore, "the employer would be sending employees from one worksite to another, the trip would not be payment for personal home-to-work commuting in the sense prohibited by 31 U.S.C. § 638a." Id.

B. Analysis and Conclusions

For the following reasons, we find that Proposals 1 and 3 are nonnegotiable.

Proposals 1 and 3 provide for the payment of a mileage reimbursement covering the distance between Gowen Field and the MATES facility for a period of 1 year, for employees who drive to and from work. Under the proposals, as interpreted by the Union, Gowen Field would continue to function as a duty station for employees.

Under 5 U.S.C. § 5704, employees may be reimbursed mileage expenses for travel on official business for the Government. For local travel such expenses are permissible for travel between an employee's residence and duty station on a day when official travel is performed, but only when the trip involved requires at least one night's lodging. 41 C.F.R. § 301-2.3.d; National Council of Field Labor Locals, Local 2513, AFGE and U.S. Department of Labor, Employment Standards Administration, Region 2, 29 FLRA 451, 454 (1987); 55 Comp. Gen. 1323, 1328 (1976). Employees may also be reimbursed mileage for travel between duty sites where work is performed at both duty sites during the day. See National Treasury Employees Union, Chapter 22 and Department of the Treasury, Internal Revenue Service, 29 FLRA 348, 355-56 (1987). However, under 5 U.S.C. § 5704, proposals requiring an agency to pay mileage for a portion of employees' travel between their residence and their worksite, where the travel involved does not require lodging for at least one night, are inconsistent with law because normal home-to-work commuting is not travel on official business of the Government. See National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA 905, 906 (1986) (Army, KANG); National Treasury Employees Union and Department of Treasury, Internal Revenue Service, 9 FLRA 726, 727-28 (1982) (IRS).

The Union interprets Proposals 1 and 3 as pertaining to travel from worksite to worksite. The Agency claims that Gowen Field is not officially designated as the duty station for employees covered by the proposals. The Union states that the proposals assume that Gowen Field would be designated as a duty station for employees covered by the proposals, tacitly acknowledging thereby that it is not currently designated as the duty station for those employees.

The Authority has held that "[a]n employee's official duty station [is] the place at which the employee performs the major part of his or her duties and is expected to spend the greater part of his or her time." American Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446, 447-48 (1983) (FHLBB) (citing 32 Comp. Gen. 87 (1952)). See also Fidelity & Deposit Co. of Maryland v. United States, 55 F.2d 100, 103-04 (4th Cir. 1932). In FHLBB, the Authority also found that an agency may not designate an employee's official duty station at some place other than the place at which that person is expected to perform the preponderance of his or her duties. Id. (citing 31 Comp. Gen. 289 (1952)). See also Comp. Gen. No. B-193807 (May 21, 1979) (unpublished).

The proposals at issue in this case effectively require that Gowen Field be designated as the official duty station for the employees covered by the proposals, to which the employees would report before proceeding to the MATES facility on duty time. However, there is no evidence in the record to indicate that employees covered by the proposals are required to perform work at Gowen Field and, thus, no basis on which to conclude that Gowen Field is the duty station for those employees. Therefore, based on the record, we conclude that the portion of travel between Gowen Field and the MATES facility is not travel from one duty station to another. Because the travel covered by Proposals 1 and 3 constitutes a portion of the employees' commute, the proposals require the Agency to pay employees covered by the proposals mileage expenses for that commute. Consequently, consistent with Army, KANG and IRS, we find that the proposals are inconsistent with 5 U.S.C. § 5704. Accordingly, because the proposals are inconsistent with law, Proposals 1 and 3 are nonnegotiable under section 7117(a)(1) of the Statute. See Army, KANG; IRS.

We have found the proposals nonnegotiable because they are inconsistent with law. Therefore, we need not reach the question of whether the proposals constitute negotiable procedures under section 7106(b)(2) of the Statute or appropriate arrangements under section 7106(b)(3) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 3232 and Department of Health and Human Services, Social Security Administration, Region II, 31 FLRA 355, 359 (1988) (SSA, Region II).

IV. Proposal 2

The [A]gency will provide a shuttle bus for the purpose of commuting [sic] the MATES employees from Gowen Field. Departure from Gowen Field will begin at the start of the duty day and the return to Gowen Field will terminate the duty day. This arrangement is to last for a period of one year.

A. Positions of the Parties

1. Agency

The Agency asserts that Proposal 2 is inconsistent with 31 U.S.C. § 638a(c)(2).(*) According to the Agency, this case is distinguishable from cases involving negotiable proposals pertaining to the transportation of employees from one worksite to another. The Agency contends that unlike those cases, where the travel began at an officially designated agency worksite, Gowen Field, the starting place for employee travel under Proposal 2, is no longer designated by the Agency as a worksite for employees covered by the proposal. The Agency also contends that there are no official purposes for a shuttle bus system. The Agency argues that the proposed shuttle bus would be used as part of the employees' commute to the new worksite at the MATES facility from the previous worksite at Gowen Field. According to the Agency, because the shuttle bus required by the proposal would be used for employees' commute to and from work, and not for official purposes, the proposal would violate 31 U.S.C. § 638a(c)(2).

The Agency also argues that Proposal 2 is inconsistent with 5 U.S.C. § 6101 and section 7106(a)(2)(B) of the Statute. The Agency contends that, under the proposal, employees' workdays would begin about one-half hour to one hour prior to the time that the employees are actually present for duty at the assigned worksite and would end about one-half hour to one hour after the employees have departed from the assigned worksite. The Agency maintains that the employees are not available for assignment to any duties during this time. According to the Agency, such proposals "directly violate and excessively interfere with the right to assign work and violate section 6101, as well." Statement at 6.

2. Union

The Union states that under Proposal 2, employees' workdays would begin and end at Gowen Field and transportation on the shuttle bus would occur within the scheduled workday. The Union asserts that the shuttle bus would provide transportation for employees between two Agency work sites and, thus, employees' travel on the bus would not constitute a home-to-work commute. The Union argues that the proposal does not principally relate to the performance of the Agency's work but, rather, affects working conditions of employees who would be adversely affected by the relocation of the duty station from Gowen Field to MATES. The Union contends that providing a shuttle bus service is within an agency's discretion and, therefore, is negotiable. The Union states that Proposal 2 is intended as a procedure and/or appropriate arrangement to alleviate the adverse effects of the employer's decision to move the job site.

B. Analysis and Conclusions

Proposal 2 requires the Agency to provide a shuttle bus to transport employees on duty time, for a period of 1 year, from Gowen Field to the MATES facility at the start of the day and to return the employees from the MATES facility to Gowen Field at the end of the day. We find that Proposal 2 is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with 31 U.S.C. § 1344.

As discussed above, we have determined that there is no basis in the record on which to consider Gowen Field as the duty station for employees covered by these proposals. Rather, Gowen Field is simply an intermediate point between the employees' residences and MATES, the employees' duty station. Therefore, travel to and from Gowen Field and MATES constitutes a portion of those employees' commute. Under 31 U.S.C. § 1344, funds may not be spent to provide passenger vehicles to transport employees from their homes to their duty stations. That provision states, in pertinent part:

(a)(1) Funds available to a Federal agency, by appropriation or otherwise, may be expended by the Federal agency for the maintenance, operation or repair of any passenger carrier only to the extent that such carrier is used to provide transportation for official purposes. Notwithstanding any other provision of law, transporting any individual [other than exceptions in statute not applicable here] between such individual's residence and such individual's place of employment is not transportation for an official purpose.

Because Proposal 2 would require the Agency to provide a shuttle bus to transport employees for a portion of their travel between their residence and their worksite, it is inconsistent with 31 U.S.C. § 1344 and is, therefore, nonnegotiable under section 7117(a)(1) of the Statute.

We find that Proposal 2 is distinguishable from a proposal found negotiable in American Federation of Government Employees, AFL-CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61, 62-65 (1982). In that case, the Authority found that Proposal 1 was negotiable because the employees covered by the proposal would be accompanying other employees on an already authorized trip on a shuttle which already existed and which provided transportation for a variety of official purposes, principally access to services of the department and its research facilities. In contrast, the proposal in this case does not pertain to the use of an existing shuttle bus that is serving official purposes, but, rather, requires the creation of a shuttle bus system for a purpose that is prohibited by statute.

We have found that Proposal 2 is nonnegotiable because it is inconsistent with law. Therefore, we do not reach the question of whether the proposals constitute a negotiable pr