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49 FLRA No. 89

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

COUNCIL OF VA LOCALS

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, D.C.

(Agency)

0-NG-2157

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

May 11, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.⁽¹⁾

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 the negotiability of four proposals. For the reasons that are set forth below, we reach the following conclusions. The petition for review as to Proposals 1 and 3 is dismissed because there are no issues concerning whether the disputed proposals are inconsistent with applicable law, rule, or regulation that are appropriate for resolution in a negotiability proceeding under section 7117 of the Statute. Proposal 2, which concerns the negotiation of changes in conditions of employment that affect more than one facility or originate above the facility level, is negotiable. Proposal 4, which concerns a monthly subsidy for drivers of car pools and van pools and for employees who use public transportation, is negotiable.

II. Proposal 1

Article 1

Section 2 - Units

This agreement is applicable to Department of Veterans Affairs employees Physicians, Dentists, Podiatrists, Optometrists, Physician Assistants, Registered Nurses, Nurse Anesthetists and Expanded-Function Dental Auxiliaries who are employees under Title 38, Section 71, and other Title 38 employees who are covered by another agreement, for subjects and procedures not covered in the other agreement, for whom NFFE is certified as exclusive representative under Certification of Consolidation of units in FLRA Case No. 3-UC-11, issued October 1, 1981. See Appendix B.

[Only the underlined portion is in dispute.]

A. Positions of the Parties

The Agency states that it has not alleged that this proposal is inconsistent with any law, rule, or regulation. The Agency only maintains that it refuses to bargain over Union proposals that would apply to employees covered by another collective bargaining agreement.

The Union did not file a reply brief in this case. In its petition, the Union states that the Agency has not cited a violation of law or Government-wide regulation insofar as this proposal is concerned and that it believes this proposal is negotiable "as these employees are in our bargaining unit." Petition at 2.

B. Analysis and Conclusions

Under section 7117 of the Statute and section 2424.1 of the Authority's Regulations, the Authority considers a petition for review of a negotiability issue only where the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. For example, American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768, 769 (1987). Where the conditions for review of negotiability are met, a union is entitled to a decision on whether a proposal is negotiable under the Statute. See American Federation of Government Employees, AFL-CIO, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983).

In this case the Agency does not contend that the disputed portion of this proposal is inconsistent with any law, rule, or regulation. Therefore, the petition for review as to this proposal does not meet the conditions governing review of negotiability issues and must be dismissed. Accordingly, we will dismiss the Union's petition for review as to this proposal, without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1990). To the extent that the parties' dispute remains over whether the Agency has an obligation to bargain over the disputed portion of this proposal, the dispute should be resolved in other appropriate proceedings, such as a negotiated grievance procedure or the unfair labor practice procedures under section 7118 of the Statute. See id. at 931.

III. Proposal 2

Article 8

Section 2

a. National Level Bargaining - Proposed changes affecting personnel policies, practices or conditions of employment not excluded from collective bargaining by 38 USC 7422(b) which affect more than one station or originate above the facility level will be forwarded to each Local in writing to provide them an opportunity to bargain, as appropriate, before local implementation. A copy of any material sent to the National NFFE Office under National Consultation Rights will also be sent to the Council President within 30 days from date of receipt to review and respond. At the option of the Council, they may request to:

(1) Negotiate as appropriate on the material as submitted, leaving additional impact and/or implementation bargaining, etc., to be conducted at the Local level upon request;

(2) Refer all negotiations, substance and impact and implementation, etc., to the Local level;

(3) Negotiate totally at the Council level with no additional negotiations at the Local level (subject to the Agency's compelling need as determined by the Authority); or

(4) Elect not to negotiate at all.

If the Council chooses (1) or (2) above, the local union may request to negotiate additionally as appropriate upon completion of any national level negotiations. When the Council bargains on behalf of all the Locals, the parties will first make a good faith effort to reach agreement by conduction [sic] telephone negotiations, scheduled in advance. Such negotiations will begin no later than 10 work days after the Union spokesperson receives management's counter-proposals. Telephone negotiations shall be on consecutive days until the negotiations are concluded. If the parties are unable to reach agreement, face to face negotiations shall be set at a mutually agreed upon date and location. The Union will be provided official time, per diem and travel for Union negotiators up to the number of representatives Management designates for the bargaining, but not less than two.

[Only the underlined portion is in dispute.]

A. Positions of the Parties

The Agency asserts that this proposal would afford the Union the opportunity to bargain over proposed or draft agency-wide regulations. The Agency contends that under section 7113 of the Statute proposed or draft agency-wide regulations are subject to consultation with unions that hold national consultation rights and that to require bargaining over them with a union that represents only a minority of employees in the Agency is inconsistent with section 7113(b)(1)(A). In this regard, the Agency states that the contract that is the subject of the negotiations out of which this dispute arose "will affect only 2,500 of the Agency's nearly 200,000 employees."⁽²⁾ Statement of position at 16.

The Agency acknowledges that it has an obligation to negotiate with the Union concerning the impact and implementation of such regulations once they have been adopted. However, the Agency asserts that because this particular Union does not hold exclusive recognition at the Agency level for all Agency facilities, the Agency is not obligated to bargain over the substance of draft Agency-wide regulations prior to their promulgation. The Agency states that Agency-wide regulations necessarily affect all employees in the Agency that are subject to their provisions. Thus, according to the Agency, to allow this Union, which represents only a small minority of the total employees in the Agency, to negotiate over the substance of such regulations before their issuance would permit the Union to negotiate the terms and conditions of employment of employees who are in bargaining units for which other unions hold exclusive representation.

The Agency contends that such a requirement would produce absurd results in that all unions that hold exclusive recognition for any of its employees could demand similar negotiations and set off potentially endless rounds of bargaining before the Agency could issue any directives to its subordinate elements. The Agency asserts that, as a result, this proposal is not negotiable because it is inconsistent with sections 7113, 7114, and 7117 of the Statute.

As indicated previously, the Union did not file a reply to the Agency's statement of position. In its petition, the Union states that the Union "is the recognized representative for all employees in the NFFE [National Federation of Federal Employees] Council of VA [Veterans Administration] Locals[]" and the Agency's claim that "the Council cannot negotiate substance, only impact and implementation" is "ludicrous . . . ." Petition at 3.

B. Analysis and Conclusions

We reject the Agency's claim that the proposal is inconsistent with section 7113 of the Statute, which obligates agencies to provide unions which have been granted national consultation rights with notice of proposed changes in conditions of employment and reasonable time to present their views and recommendations regarding the proposed changes. Nothing in Proposal 2 concerns the Agency's obligations under section 7113 of the Statute. Rather, Proposal 2 concerns the Agency's obligation to bargain with the Union over changes in conditions of employment of employees in the bargaining unit represented by the Union.

We also reject the Agency's claim that Proposal 2 is nonnegotiable because it would obligate the Agency to bargain over matters affecting non-bargaining unit employees. In our view, the Agency's uncontested assertion is inconsistent with the plain wording of Proposal 2. In this connection, we note that Proposal 2 is part of Article 8 of the parties' agreement, entitled "Bargaining During the Term of the Agreement." The proposal clearly, and by its plain terms, concerns the level at which bargaining will occur over "changes affecting . . . conditions of employment . . . which affect more than one station or originate above the facility level . . . as appropriate, before local implementation." We find no basis on which to conclude that the proposal, when read as a whole and in the context of the undisputed portions of Article 8, could encompass negotiations over any matters other than the effects of Agency regulations on unit employees' conditions of employment. That is, there is no basis on which to conclude that the proposal would require the Agency to bargain on the substance or effect of Agency regulations as they relate to nonunit employees.

Absent a finding that a compelling need exists for an agency regulation, the agency is obligated to negotiate over the substance, impact, and implementation of a regulation on unit employees' conditions of employment, before a regulation is implemented in the bargaining unit even in circumstances where a particular regulation also may apply to employees outside the unit. See Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 41 FLRA 690, 697 (1991). In this case, as the Agency has made no claim that a compelling need exists for any Agency regulation, we find that Proposal 2, which obligates the Agency to bargain over the substance, impact, and implementation of any future Agency regulations insofar as it relates to the conditions of employment of unit employees, is negotiable.

IV. Proposal 3

Article 8

Section 2

b. Local Level Bargaining

(1) Local Management will submit, in writing, proposed changes which are initiated at or below the facility level or under a above, affecting personnel policies, practices or conditions of employment which are not in conflict with the master agreement or the local supplemental agreement, which are initiated at or below the facility level to the Local Union President or his/her designee prior to implementation. The Local Union shall be given 15 calendar days to request negotiations or agree to the changes. Written proposals will be submitted at least 5 days prior to negotiations, unless otherwise mutually agreed. The parties may mutually agree to modify the time frame. If the Union does not request bargaining with[in] the time limit, the Employer m[a]y implement the proposed change(s). Upon timely request by the Union, bargaining will normally commence within ten (10) calendar days from the date of the request, unless otherwise agreed upon by the parties.

(2) The Union may initiate local mid-term bargaining over issues not in conflict with the master agreement or the local supplemental agreement. In such cases, the employer shall have 15 calendar days from the date of receipt of Union initiated proposed changes to conditions of employment to request negotiations or agree to the proposals. Written counter-proposals will be submitted at least 5 days prior to negotiations to the Union. Bargaining will normally commence within 10 calendar days, unless otherwise agreed upon by the parties.

A. Positions of the Parties

The Agency states that it does not allege that this proposal is nonnegotiable and that, therefore, the petition for review as to this proposal should be dismissed. In its petition the Union states that the same arguments apply to both Proposal 2 and this proposal.

B. Analysis and Conclusions

In view of the fact that the Agency does not allege that this proposal is nonnegotiable, the petition for review is not properly before us insofar as it concerns this proposal. See section 7117(c) of the Statute and section 2424.1 of the Authority's rules and regulation. Therefore, we will dismiss the petition as it relates to this proposal without prejudice to the Union's right to file an appeal if the conditions governing review are met. See, for example, National Federation of Federal Employees, Local 1655 and Department of Military Affairs, Illinois Air National Guard, 35 FLRA 815, 815 n.* (1990).

V. Proposal 4

Article 33

Section 3

The Employer will pay a $21.00 monthly subsidy to drivers of car pools, van pools, or to employees who use public transportation. Procedures will be negotiated locally. The parties agree that parking is an appropriate subject for Local supplemental negotiations, in accordance with government-wide regulations.

A. Positions of the Parties

The Agency contends that this proposal is nonnegotiable. In its statement of position, the Agency asserted that this proposal was nonnegotiable because it was inconsistent with Pub. L. No. 101-509, Title VI, § 629, 104 Stat. 1478 (1990), which addressed the issue of incentives to reduce the cost to employees of using public transportation. The Agency also asserted that this proposal directly interfered with management's right to determine its budget under section 7106(a)(1) of the Statute. Pub. L. No. 101-509 was scheduled to expire by its own terms on December 31, 1993.

While this case was pending, new legislation was enacted and signed into law that permits agencies to establish programs to encourage Federal employees to commute by means other than single-occupancy motor vehicles. Pub. L. No. 103-172, 107 Stat. 1995 (1993), to be codified at 5 U.S.C. § 7905. We issued an Order to the parties directing them to provide statements setting forth their positions concerning the effect of the legislation on the negotiability of this proposal.⁽³⁾

In the Agency's response to this Order, it submitted arguments concerning the impact of the new legislation on its position that this proposal is inconsistent with Federal law and interferes with management's right to determine its budget under section 7106(a)(1) of the Statute.⁽⁴⁾ What is set forth here are the arguments that the Agency made with respect to current, rather than prior, law.

The Agency argues that it is inconsistent with law for an agency to pay employee commuting expenses without explicit statutory authority to do so. The Agency acknowledges that Pub. L. No. 103-172 authorizes agencies to establish a program to encourage employees to use means other than single-occupancy motor vehicles to commute to work. However, it asserts that under the law and its underlying legislative history such program is to be established at the election of the agency involved and that discretion is not subject to bargaining. The Agency contends that "Proposal 4 in requiring payments of employee commuter costs is inconsistent with Public Law 103-172 which cannot provide support for it." Agency response to Order at 4.

The Agency asserts that Proposal 4 is inconsistent with Pub. L. No. 103-172 for the additional reason that the plain language of that law requires that agency assistance in defraying commuting costs be made in the context of a program operating under guidelines prescribed by an agency or agencies designated by the President. The Agency argues that simply paying $21.00 per month to each bargaining unit member who is a driver of a car pool or van pool or uses public transportation, as would be required under Proposal 4, does not constitute a program within the meaning of that law and ignores the regulatory requirements of that law.

The Agency avers that Pub. L. No. 103-172 is intended to defray commuting costs for the purpose of encouraging use of car pools and public transportation. The Agency contends that Proposal 4 is inconsistent with the law because it would require payment of $21.00 per month to eligible employees regardless of their actual transportation costs and could result in a payment in excess of those costs. The Agency argues that "windfalls are not authorized" by the law. Id. at 6.

The Agency also contends that the proposal directly interferes with management's right to determine its budget under section 7106(a)(1) of the Statute, citing both parts of the budget test that the Authority articulated in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 607-8 (1980) (Wright-Patterson), aff'd as to other matters, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982). The Agency states that in enacting Pub. L. No. 103-172 Congress did not authorize any additional funds for agencies to use in providing subsidies to employees for their commuting costs and indicated that agencies must fund the subsidies from their existing budgets. The Agency asserts that, consequently, if it were to establish a program under the law that entailed the payment of subsidies, the necessary money would come "from budgets for other programs." Agency response to Order at 7. The Agency argues that because it currently does not have provisions in its budget to pay employee commuting costs, this proposal would require it to "create a specific budget to accommodate employee commuting costs . . . ." Id.

The Agency estimates that this proposal would cost $3.628 million annually calculated on a $21.00 per month payment to each of the 14,400 employees in the consolidated bargaining unit that is represented by the Union. The Agency also asserts that, if all other unions that hold exclusive representation for employees in the Agency make a similar demand, the annual cost of subsidizing employee commuting costs would be $42,739,200. The Agency states that its "entire employee travel budget for Fiscal Year 1994 is only $56.355 million." Id. at 8. The Agency contends that the proposal prescribes significant and unavoidable costs that will have minimal benefit to the Agency. In this regard, the Agency contends that if the proposal applied only to employees in the Union's bargaining unit, the cost would represent 6.5 percent of the Agency's travel budget. The Agency argues that while the community as a whole may benefit from greater use of car pools and the like and employees will profit from the payments prescribed by the proposal, there is "only the most tangential relationship to the workplace and no identifiable effect on [the Agency's] patient care or other missions or employee's working conditions[.]" Id. at 9.

The Agency maintains that the cost attendant to the proposal necessarily would impede its statutory programs by diverting funds from them. The Agency contends that such effect was not intended by Congress when it passed Pub. L. No. 103-172 and that this law does not change the fact that this proposal interferes with the Agency's right to determine its budget under section 7106(a)(1) of the Statute.

In its petition, the Union asserted that, under law, the Agency has discretion to choose to participate in the transportation subsidy program and that its discretion is negotiable. As stated previously, the Union did not file a reply to the Agency's statement of position. In response to the Authority's Order, the Union states that it "agrees with the [A]gency that the change in the law governing transportation subsidies has no effect on the arguments made by the parties in their original submissions." Union response to Order.

B. Analysis and Conclusions

1. The Proposal Is Not Inconsistent with Pub. L. No. 103-172

Under Pub. L. No. 103-172 agencies are authorized to establish a program to encourage their employees to use means other than single-occupancy motor vehicles to commute to or from work.⁽⁵⁾ It is well established that where a law or regulation provides an agency with discretion over a matter affecting conditions of employment, the agency is obligated under the Statute to exercise that discretion through bargaining unless the governing law or regulation specifically requires that only the agency may exercise that discretion. For example, National Federation of Federal Employees, Local 29 and U.S. Department of the Army, Engineer District, Kansas City, Missouri, 45 FLRA 603, 606 (1992). Thus, it is only where law or applicable regulation vests an agency with exclusive authority or unfettered discretion over a matter that the exercise of the agency's discretion is not subject to negotiation. For example, id. at 606-7.

Nothing in the plain wording of Pub. L. No. 103-172 indicates that an agency's authority to establish a program to encourage employees to use means other than single-occupancy motor vehicles to commute to work is to be exercised without regard to other laws in general or the Statute in particular. Compare, for example, Illinois National Guard v. FLRA, 854 F.2d 1396, 1402 (D.C. Cir. 1988) (where the governing statute provided that agency head was required to grant compensatory time for overtime work instead of paying overtime pay and prescribe duty hours for employees "notwithstanding any other provision of law," court found that agency head had "unfettered discretion"); Police Association of the District of Columbia and Department of the Interior, National Park Service, U.S. Park Police, 18 FLRA 348, 353 (1985) (agency head was found to have "'final and conclusive'" authority regarding minor fines and suspensions where the governing statute recognized the agency head had such authority "'notwithstanding . . . any other law'"). Nothing in the wording of Pub. L. No. 103-172 expressly supersedes, overrides, or otherwise modifies the application of any other statute.

Moreover, nothing in the legislative history underlying Pub. L. No. 103-172 indicates that Congress intended that an agency's discretion concerning the establishment of a commuter subsidy program be exclusive of other laws, including the Statute. The House report accompanying H.R. 3318, the bill which was subsequently passed by Congress and signed into law as Pub. L. No. 103-172, contains the following passage:

Section 629(a) of the Treasury, Postal Service and General Government Appropriations Act of 1991 (P.L. 101-509) authorized Federal agencies to elect to participate in transit benefit programs offered by state or local governments.

. . . .

H.R. 3318 reauthorizes Federal agencies to offer subsidies to those employees who commute by means other than single-occupancy vehicles. . . . Participation in a transit program is within each agency's discretion, and H.R. 3318 does not authorize additional funds for agencies to provide the subsidy. Subsidies must be funded from agencies' existing budgets.

H.R. Rep. No. 103-356(I), 103d Cong., 1st Sess. 2-3 (1993). We find that this passage does not support a conclusion that an agency's discretion regarding participation in a commuter subsidy program is exclusive or unfettered, and, consequently, not subject to collective bargaining. Rather, it only indicates that such participation is not mandatory under the law. Thus, we find no merit in the Agency's argument that Pub. L. No. 103-172 removes the Agency's decision of whether to participate in a commuter subsidy program from its obligation to bargain under the Statute.

We also find no basis for concluding that the particular subsidy proposed is inconsistent with Pub. L. No. 103-172. Based on the plain wording of that law and its underlying legislative history, we find that the subsidies authorized are not limited to those specifically mentioned in that law. As worded, the law lists options that are illustrative in nature and not comprehensive. In this regard, the House report states:

The program options that may be established under this legislation (7905(b)(2)) are not intended to be an inclusive list of programs that agencies may establish. . . . H.R. 3318 expands the scope of the previous authorization to include, but not be limited to, privately operated vanpools.

Id. at 3. Based on the wording of the law and its underlying legislative history, we find that agencies are afforded considerable latitude with respect to determining the content of the programs they are authorized to establish. We find that the proposed subsidy is not irreconcilable with the extent of the authority that Pub. L. No. 103-172 provides agencies with respect to establishing programs to encourage employees to commute by means other than single-occupancy motor vehicle. Compare U.S. Department of Defense, Office of Dependents Schools and Overseas Education Association, 40 FLRA 425, 431 (1991) (proposed circumstance under which a provision in a Government-wide regulation would be waived was irreconcilable with the standard for a waiver that was set forth in the regulation and, consequently, the proposal was inconsistent with the regulation).

We find that the fact that the law requires that guidelines will be issued for the programs authorized does not present a basis for finding that this particular proposal is inconsistent with the law itself.⁽⁶⁾ Upon issuance, those guidelines may provide a basis for a claim that a pending proposal that is inconsistent with them is nonnegotiable if the guidelines constitute Government-wide regulations within the meaning of section 7117 of the Statute. Of course, such regulations generally are not enforceable if they conflict with a provision of an existing collective bargaining agreement. See 5 U.S.C. § 7116(a)(7). However, the anticipated guidelines provide no basis for finding that this proposal is nonnegotiable.

Based on the foregoing, we reject the Agency's contention that Proposal 4 is inconsistent with Pub. L. No. 103-172.

2. The Proposal Does Not Interfere with Management's Right to Determine Its Budget

In Wright-Patterson, the Authority set forth a two-part test for determining whether a proposal directly interferes with management's right to determine its budget under section 7106(a)(1) of the Statute. In that decision, the Authority applied the common or dictionary definition to the term "budget"; that is, "a statement of the financial position of a body for a definite period of time based on detailed estimates of planned or expected expenditures during the period and proposals for financing them." 2 FLRA at 608. The Authority concluded that under section 7106(a)(1) of the Statute, an agency's authority to determine its budget extends to the determination of the programs and operations that will be included in the estimate of proposed expenditures and the determination of the amounts required to fund them. Under the first part of the test, a proposal that prescribes the particular programs or operations that an agency would include in its budget or prescribes the amount to be allocated in the budget would infringe on the agency's right to determine its budget.

The second part of the test addresses proposals that do not by their terms prescribe particular programs, operations, or amounts to be included in an agency's budget, but that are alleged to interfere with an agency's right to determine its budget because of increased costs.⁽⁷⁾ The Authority rejected an approach that would base a determination of negotiability on increased cost alone, and adopted instead an approach that would weigh that factor against "such factors as the potential for improved employee performance, increased productivity, reduced turnover, fewer grievances, and the like." Id. Under the second part of the test that was set forth in Wright-Patterson, only where an agency makes a substantial demonstration that an increase in costs is significant and unavoidable and is not offset by compensating benefits will the Authority find that an otherwise negotiable proposal interferes with an agency's right to determine its budget.⁽⁸⁾

Recently, we clarified our treatment of the first part of this test in National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Depot, Texarkana, Texas, 48 FLRA 1198 (1993) (Red River Depot). In that case we stated:

We find that the first part of the budget test encompasses the specific process that is dedicated to formulating: (1) the budget estimate for an agency that is incorporated in the budget of the United States Government; (2) estimates for funding the operations and programs of an agency that are produced within the agency to provide the groundwork for the budget estimate that is incorporated in the budget of the United States Government; and (3) an agency's plan for allocating funds among its operations and programs once presidential and congressional action on the budget of the United States Government has occurred. Thus, the first part of the budget test removes from bargaining any mandated inclusion of programs, operations, and amounts in the estimates and plans that comprise an agency's budget process.

Id. at 1206.

We further stated:

There is a relationship between establishing conditions of employment that result in a cost to an agency and the determination of its budget in that, as we have noted, budgets by their nature are an exercise in determining how costs will be handled. However, for purposes of the first part of the budget test, negotiating a proposal relating to conditions of employment that could result in a cost to an agency does not equate to the inclusion of a program, operation, or amount in the budget if the proposal, standing alone, does not prescribe that action. Rather, it is only when a proposal, by its terms, directly prescribes the substantive composition of the estimates and plans that constitute the budget process that the proposal comes within the ambit of the first part of the budget test.

Id. at 1207-8. Thus, the first part of the budget test is limited in scope to the formal process of setting forth programs, operations, and amounts in a financial plan and does not apply to proposals that simply require expenditures by an agency and, consequently, have an impact on the budget process.

While Proposal 4 would necessitate an expenditure of funds by the Agency, it does not, by its terms, directly prescribe how any resultant funding requirements will be addressed in the Agency's budget. Also, we reject the Agency's argument that the fact that it currently does not have a "program" for commuter subsidies brings this proposal within the ambit of the first part of the budget test. The proposal does not, by its terms, prescribe the establishment of a program within the budget itself. Even assuming that this proposal requires the Agency to establish a subsidy "program," as we stated in Red River Depot, the establishment of an administrative or operational program does not equate to the establishment of a program within the budget itself. Id. at 1209. Indeed, a recent study by the General Accounting Office found that, in practice, agencies that had provided transit benefits to their employees obtained funding from different object classification categories in their existing budgets.⁽⁹⁾ Specific object classification categories cited as sources of funding for transit benefits were: "civilian personnel benefits," "personnel compensation," "travel," and "other services." United States General Accounting Office, Mass Transit: Federal Participation in Transit Benefit Programs 43-44 (September 1993) (Mass Transit). As long as a proposal leaves the agency with the discretion to determine how any necessary funding relating to an administrative or operational program will be addressed in its budget, that proposal is not inconsistent with the first part of the budget test. Red River Depot, 48 FLRA at 1209. This proposal leaves the Agency discretion in that regard intact.

While this proposal would have an effect on the budget process, it does not prescribe the particular programs or operations that the Agency will include in its budget or prescribe the amount to be allocated in the budget for them. Thus, we conclude that, under the first part of the budget test, this proposal does not interfere with management's right to determine its budget.

Turning to the second part of the budget test, we find that the Agency has failed to make a substantial demonstration that the proposal would entail an increase in costs that is significant. In making its cost projections, the Agency has provided two sets of figures. One set is based on application of the proposal to the bargaining unit that the Union represents and the second set is based on application of similar provisions to all bargaining units throughout the Agency. The question before us is whether Proposal 4, which is limited to employees who are represented by the particular union that is party to this case, conflicts with the Agency's right to determine its budget. The likelihood that identical provisions would be adopted in all bargaining units throughout the Agency is speculative and would be dependent on factors not present in this case. Such speculation does not provide a valid basis for determining whether this proposal interferes with the Agency's right to determine its budget. Therefore, we find that the projection of the cost that would result from application of identical provisions to all employees in bargaining units throughout the Agency does not provide a basis for concluding that this proposal directly interferes with management's right to determine its budget. See American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Air Logistics Center, Sacramento, California, 36 FLRA 894, 906 (1990).

The Agency contends that this particular proposal would result in an annual cost of $3.628 million. However, the Agency has not provided reliable support for this cost projection, which is based on the assumption that all 14,400 employees in the Union's consolidated unit would receive the proposed subsidy. Specifically, we note that in presenting its arguments with respect to Proposal 2, above, the Agency states that the collective bargaining agreement that is the subject of this petition applies to only 2,500 of the employees in the consolidated unit. Based on that figure, the potential cost of the proposal would be considerably less than that specified by the Agency. Additionally, we note that the proposal limits the subsidy to drivers of car pools and van pools and employees who use public transportation. The Agency has presented no support for its assumption that all employees covered by this collective bargaining agreement would fall into one of these three categories.⁽¹⁰⁾ Moreover, the Agency has offered no information as to the current commuting practices of its employees and what changes in those practices realistically might be expected based, for example, on the experience of agencies and employers who have provided similar subsidies. See, for example, Mass Transit.

Even accepting, for the sake of argument, the Agency's cost projection at face value, we find that the projected increase in cost is not significant in relation to the Agency's budget. In this regard, the Agency states that $3.628 million represents 6.5 percent of its travel budget for Fiscal Year 1994. The Agency provides only budget figures for travel from nine accounts within its overall budget and has not provided figures for the total obligations or budget authority for those accounts. The Budget of the United States Government reveals that the cumulative total obligations and budget authority for those nine accounts as estimated for Fiscal Year 1994 are each approximately $18 billion.⁽¹¹⁾ Budget of the United States Government, Fiscal Year 1994, U.S. Government Printing Office 1993. We realize that these figures represent the amount included in the budget that the President submitted to Congress and that they have undergone modification as a consequence of the appropriation process; however, it does not appear that the numbers changed to a degree that alters the significance of the estimated cost of the subsidy. See Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1994, Pub. L. No. 103-124, 107 Stat. 1275 (1993). It is clear that when compared against the total amounts estimated for the nine accounts, the cost of the subsidy, even if accepted as proffered by the Agency, represents considerably less than 1 percent of the overall amounts for total obligations and budget authority estimated for those accounts as a group.⁽¹²⁾

Comparison of the cost of the proposal against various object classification category totals for the nine accounts in the Agency's budget reveals that the cost equates to 6.5 percent of the total that is provided for travel and considerably less than 1 percent of each of the totals provided for personnel compensation and civilian personnel benefits.⁽¹³⁾ When compared to the sums of the amounts for budget authority and total obligations for the nine accounts, the cost represents a small faction of 1 percent of those sums. We find that a cost of such proportions does not constitute a significant increase in costs. See, for example, National Association of Government Employees, Local R4-26 and Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 118, 133-34 (1991) (the Authority found that an increase of either 2.34 percent or 5.75 percent in a $7.1 million budget was not significant); American Federation of Government Employees, AFL-CIO, Local 3106 and U.S. Department of Agriculture, 21 FLRA 711, 713 (1986) (the Authority found that a claimed increase of 1.7 percent of "the total budget for the T[ick] E[radication] P[rogram]" was not significant); National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 766 (1980) (the Authority found that a cost representing 1/6 to 1/7 of 1 percent of the total budget for the New Orleans Regional Office was not significant). Compare Nuclear Regulatory Commission (Chairman McKee dissenting in relevant part) (the Authority found that an increase in cost that represented approximately 25 percent of the agency's salary budget and approximately 12 percent of the agency's entire appropriated fund budget was significant).

Based on the foregoing, we find that the Agency has failed to make a substantial demonstration that Proposal 4 would result in an increase in costs that is significant. In view of the absence of such a demonstration, it is unnecessary to address the issue of whether the increase in costs would be unavoidable and not offset by compensating benefits.

We conclude that Proposal 4 neither is inconsistent with Pub. L. No. 103-172 nor directly interferes with management's right to determine its budget under section 7106(a)(1) of the Statute and that it is negotiable.

VI. Order

The petition for review is dismissed insofar as it concerns Proposals 1 and 3. The Agency shall, upon request or as otherwise agreed to by the parties, bargain on Proposals 2 and 4.⁽¹⁴⁾

APPENDIX A

Pub. L. No. 103-172 provides as follows:

SECTION 1. SHORT TITLE; PURPOSE

(a) SHORT TITLE.--This Act may be cited as the "Federal Employees Clean Air Incentives Act."

(b) PURPOSE.--The purpose of this Act is to improve air quality and to reduce traffic congestion by providing for the establishment of programs to encourage Federal employees to commute by means other than single-occupancy motor vehicles.

SEC. 2. AUTHORITY TO ESTABLISH PROGRAMS

(a) IN GENERAL.--Chapter 79 of title 5, United States Code, is amended by adding at the end the following:

"§ 7905. Programs to encourage commuting by means other than single-occupancy motor vehicles

"(a) For the purpose of this section--

"(1) the term 'employee' means an employee as defined by section 2105 and a member of a uniformed service;

"(2) the term 'agency' means--

"(A) an Executive agency;

"(B) an entity of the legislative branch; and

"(C) the judicial branch;

"(3) the term 'entity of the legislative branch' means the House of Representatives, the Senate, the Office of the Architect of the Capitol (including the Botanic Garden), the Capitol Police, the Congressional Budget Office, the Copyright Royalty Tribunal, the Government Printing Office, the Library of Congress, and the Office of Technology Assessment; and

"(4) the term 'transit pass' means a transit pass as defined by section 132(f)(5) of the Internal Revenue Code of 1986.

"(b)(1) The head of each agency may establish a program to encourage employees of such agency to use means other than single-occupancy motor vehicles to commute to or from work.

"(2) A program established under this section may involve such options as--

"(A) transit passes (including cash reimbursements there-for, but only if a voucher or similar item which may be exchanged only for a transit pass is not readily available for direct distribution by the agency);

"(B) furnishing space, facilities, or services to bicyclists; and

"(C) any non-monetary incentive which the agency head may otherwise offer under any other provision of law or other authority.

"(c) The functions of an agency head under this section shall--

"(1) with respect to the judicial branch, be carried out by the Director of the Administrative Office of the United States Courts;

"(2) with respect to the House of Representatives, be carried out by the Committee on House Administration of the House of Representatives; and

"(3) with respect to the Senate, be carried out by the Committee on Rules and Administration of the Senate.

"(d) The President shall designate 1 or more agencies which shall--

"(1) prescribe guidelines for programs under this section;

"(2) on request, furnish information or technical advice on the design or operation of any program under this section; and

"(3) submit to the President and the Congress, before January 1, 1995, and at least every 2 years thereafter, a written report on the operation of this section, including, with respect to the period covered by the report--

"(A) the number of agencies offering programs under this section;

"(B) a brief description of each of the various programs;

"(C) the extent of employee participation in, and the costs to the Government associated with, each of the various programs;

"(D) an assessment of any environmental or other benefits realized as a result of programs established under this section; and

"(E) any other matter which may be appropriate."

(b) CHAPTER ANALYSIS.--The analysis for chapter 79 of title 5, United States Code, is amended by adding at the end the following:

"7905. Programs to encourage commuting by means other than single-occupancy motor vehicles."

SEC. 3. EFFECTIVE DATE.

This Act and the amendments made by this Act shall take effect on January 1, 1994.

APPENDIX B

Account	Travel*	Entire	Budget**
Medical Care	33,240***	BA TO	15,132,515 15,132,515
Medical and Prosthetic Research	2,682	BA TO	241,000 241,000
Medical Administration and Miscellaneous Operating Expenses	1,293	BA TO	68,500 68,500
Medical Care Cost Recovery Fund	2,330	BA TO	99,399 99,399
General Operating Expenses	11,591	BA TO	1,043,372 1,043,372
National Cemetery System	585	BA TO	70,607 70,607
Office of Inspector General	2,138	BA TO	32,259 32,259
Supply Fund	1,696	BA TO	1,313,285 1,314,067
Canteen Service Revolving Fund	800	BA TO  ________	241,211 238,985 __________
Total	56,355	BA TO	18,242,148 18,240,704

Account	Personnel Compensation**	Civilian Personnel Benefits**
Medical Care	7,972,678	1,737,386
Medical and Prosthetic Research	107,979	25,398
Medical Administration and Miscellaneous Operating Expenses	47,765	7,441
Medical Care Cost Recovery Fund	65,675	11,609
General Operating Expenses	477,390	98,548
National Cemetery System	38,982	9,752
Office of Inspector General	21,749	4,355
Supply Fund	26,356	5,794
Canteen Service Revolving Fund	50,540 __________	14,500 _________
Total	8,809,114	1,914,783

* The figures in this column are those submitted by the Agency in Attachment 3 to the Response to the Order.

** The figures in these columns are taken from the Budget of the United States Government, Fiscal Year 1994. "BA" means Budget Authority and "TO" means Total Obligations.

*** All amounts expressed in this appendix are in thousands of dollars.

Member Talkin, Dissenting as to Proposal 2

If the record in this case supported a conclusion that Proposal 2 would not require the Agency to negotiate over the formulation of the contents of Agency-wide regulations insofar as they apply to nonunit employees, I would agree that this proposal is negotiable.

The Agency claims that this proposal would obligate it to negotiate with the Union over proposed or draft agency-wide regulations prior to their adoption. By their nature, agency-wide regulations generally apply to others in addition to the members of one bargaining unit. Proposals that seek to regulate the conditions of employment of members of other bargaining units and supervisory personnel do not concern the conditions of employment of bargaining unit employees and are nonnegotiable. See, for example, American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1422-23 (1992); United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434, 1443 (D.C. Cir. 1992) (proposals that seek to regulate the conditions of employment of members of other bargaining units and supervisory personnel are impermissible under the Statute). Here, the Union states only that it is entitled to negotiate over the substance, as well as the impact and implementation, of agency regulations. However, the Union provides no enlightenment concerning whether this proposal, in practice, would require negotiations over the formulation of agency-wide regulations that apply to supervisory personnel and to employees who are in bargaining units represented by other unions. In my view, the language of the proposal is ambiguous in this regard and I cannot discern whether this proposal, as claimed by the Agency, would obligate it to negotiate over the formulation of the contents of such agency-wide regulations. Consequently, I find that the record before me does not provide a sufficient basis to make a determination regarding the negotiability of Proposal 2, and I would, therefore, dismiss the petition for review as to this proposal. Accordingly, I respectfully dissent.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Chairman McKee's separate opinion as to Proposal 4 appears at note 7. Member Talkin's separate opinion as to Proposal 2 appears at the end of this decision.

2. The Agency states that there are approximately 14,400 employees in the consolidated unit for which the Union holds exclusive recognition. According to the Agency, the parties have executed another collective bargaining agreement, which covers approximately 11,900 "GS professional and nonprofessional employees" who are in that bargaining unit. Statement of position at 1.

3. We also directed the Agency to clarify a specific portion of its statement of position.

4. In its response, the Agency makes the additional assertion that it has no obligation to bargain over the subject of the proposal, i.e., commuting costs, because it does not relate to working conditions and, therefore, is not a condition of employment. In its statement of position, the Agency had made no argument that this proposal did not relate to working conditions. The Order specifically stated that the Authority would not accept additional arguments or documents on the negotiability appeal. Therefore, we will not consider this additional argument.

5. Pub. L. No. 103-172 is set forth in Appendix A to this decision.

6.   Had Congress wished to ensure the delay, in whole or in part, of the implementation of agency transit subsidy programs until after the issuance of such guidelines, it could have drafted the provisions of Pub. L. No. 103-172 accordingly. There are many instances of legislation crafted to permit the issuance of regulations prior to the commencement of the operation of the program or measures called for by the legislation. An example of this is found in the Federal Employees Flexible and Compressed Work Schedules Act of 1978, Pub. L. No. 95-390, 92 Stat. 755 (1978), which authorized agencies to conduct experiments relating to flexible and compressed work schedules and provided for the adjustment of work schedules for religious observances. Under the terms of that Act, the operation of such measures within agencies were subject to regulations that would be issued by the Civil Service Commission (now the Office of Personnel Management). See Sections 4, 306, and 401 of that Act. See also Title V of the Department of Transportation and Related Agencies Appropriations Act, 1992, Pub. L. No. 102-143, 105 Stat. 917 (1991) (sections 3, 4, 5, and 6 prescribed the issuance of specific regulations within 12 months after the date of enactment). Additionally, we note that there are instances where there are different effective dates established for different provisions within the same law. See, for example, Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990).

7. Chairman McKee notes that, consistent with her dissenting opinion in National Treasury Employees Union and U.S. Nuclear Regulatory Commission, 47 FLRA 980, 1003 (1993), petition for review filed, No. 93-1422 (D.C. Cir. July 1, 1993) (Nuclear Regulatory Commission), she would discard the second budget test established in Wright-Patterson and would find a proposal inconsistent with an agency's right to determine its budget only if the proposal addressed the budget per se. Accordingly, although she agrees with the majority that Proposal 4 does not directly interfere with the Agency's right to determine its budget, she does not join in the decision insofar as it addresses the second budget test.

8. In applying the second part of this test, the Authority no longer considers nonmonetary "intangible" benefits such as positive effects on employee morale in determining whether a proposal has met the test. Nuclear Regulatory Commission.

9. "Object classification" is defined as:

A uniform classification identifying the obligations of the federal government by the types of goods and services purchased (such as personnel compensation, supplies and materials, and equipment) without regard to the agency involved or the purpose of the programs for which they are used.

United States General Accounting Office, Accounting and Financial Management Division, A Glossary of Terms Used in the Federal Budget Process, Exposure Draft, 61 (Revised Jan. 1993).

10. For example, we note that there is nothing in the record to support the assumption that no employees who are covered by this collective bargaining agreement would be riders, rather than drivers, in car pools and van pools. Additionally, there is nothing in the record to support the assumption that 100 percent of the employees who are covered by this agreement would fall into one of these three categories. In this regard, we note that the General Accounting Office study found that 31 percent of the employees eligible to participate in a transit benefit program that entailed subsidizing employee use of public transportation actually participated. Mass Transit at 27.

11. Appendix B to this decision sets forth the amounts provided by the Agency for employee travel, as well as the total obligations and budget authority for the corresponding accounts that appear in the Budget of the United States Government. For purposes of further comparison, we have also included the amounts that were provided for "personnel compensation," and "civilian personnel benefits," which are other object classification categories cited as sources of funding used by agencies to fund transit benefits in the General Accounting Office study. See Mass Transit at 43-44. The totals for those object classification categories for the nine accounts are $8.809 billion and $1.915 billion respectively.

12. When compared against the amounts in the nine accounts for personnel compensation and civilian personnel benefits, $3.628 million represents considerably less than 1 percent of the totals for those object classification categories also.

13. The nine accounts referred to in this decision do not represent the entirety of the Agency's budget. See Budget of the United States Government. The Agency does not explain its choice of these nine accounts. However, an examination of the Budget of the United States Government reveals that the particular accounts identified by the Agency represent the vast majority of the accounts that contain any funding in the object classification category covering travel and transportation of persons. We can only surmise that this fact has dictated the Agency's choice of these accounts. In any event, for purposes of this decision, it is unnecessary to address the extent to which the amounts provided for other accounts should be considered in determining whether the Agency has established that the proposal is nonnegotiable under the second part of the budget test. Here, based on the nine accounts relied on by the Agency, it is clear that the Agency has not.

14. In finding that Proposals 2 and 4 are negotiable, we make no judgment as to their merits.

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