National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C.

[ v55 p839 ]

55 FLRA No. 146

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R3-10
(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C.
(Agency)

0-NG-2284
(53 FLRA 139 (1997))

_____

DECISION AND ORDER ON REMAND

September 24, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I.     Statement of the Case

      This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. See U.S. Department of Transportation, Federal Aviation Administration v. FLRA, 145 F.3d 1425 (D.C. Cir. 1998) (DOT). The court directed the Authority to address the merits of the parties' negotiability arguments regarding one proposal. The proposal would permit Air Traffic Assistants (ATAs), by virtue of the proposed Liaison and Familiarization Travel program (proposed FAM program), to participate in the Agency's National Standardized Familiarization Training program (National FAM Training program).

      For the reasons set forth below, we find that the proposal is outside the duty to bargain under section 7117(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) because it is inconsistent with the Standards of Ethical Conduct for Employees of the Executive Branch (Standards of Ethical Conduct), 5 C.F.R. § 2625.202.

II.     Proposal

      The proposal appears in the Appendix to this decision.

III.     Background

A.     Case History

      In National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C., 53 FLRA 139 (1997) (FAA I), the Authority's initial decision in this case, the Authority addressed the negotiability of the proposal now before us on remand. That proposal is different from the one originally submitted by the Union in its petition for review. In particular, the Union's proposal included in the petition for review provided that ATAs would be permitted to participate in the National FAM Training program. In response to the petition for review, the Agency claimed that the proposal mandated training assignments and thus violated management's right to assign work under section 7106(a)(2)(B) of the Statute. Statement of Position at 4.

      In its response to the Agency's statement of position, the Union submitted a revised proposal that deleted all references to training and modified the proposal to eliminate, with one exception, the use of the proposed FAM program on duty days. Id. at 139 n.1. See Union Response to Agency Statement of Position at 1-4. Specifically, the Union deleted the following portions of the proposal:

Section 2 . . . Both parties recognize the desirability of familiarization flying as a training program and that it is intended solely to acquaint bargaining unit personnel with the cockpit environment and to enable them to observe the operation of the air traffic system first hand.
Section 12 Familiarization flights are on-the-job training.

Id. at 1-4.

      In addition, the Union modified section 6 of the proposal to permit travel on duty days only where the employee is assigned duties at the outbound destination. [n1]  Section 6 originally provided the following:

Section 6 The Employer shall approve a familiarization trip for approved leave days, regular days off and for duty days in any combination. Preceding the familiarization trip, any employee may [ v55 p840 ] request to substitute duty time for his/her approved annual leave for the purpose of this Article. The Employer shall make every effort to allow familiarization flights to be conducted on duty time.

Id. at 2.

      As modified, section 6 provides the following:

Section 6 The Employer shall approve a familiarization trip for approved leave days, regular days off and for duty days (if the Employer assigns duties at the outbound destination) in any combination.

Id. at 4.

      The revised proposal is the proposal currently before the Authority. See FAA I, 53 FLRA at 139 n.1.

      In the initial proceeding before the Authority, the Union maintained that the proposal would provide ATAs with "equitable conditions of employment[,]" including "familiarization with the operation of the aircraft equipment and communications from the flight crew perspective[,]" as well as "enhance the ATA[s]' job performance and promotional opportunities." Id. at 5. The Union also stated that the proposal provides ATAs the "benefit of free air travel" that other employees of the Agency receive. Id. The Agency asserted that the proposal is inconsistent with the Standards of Ethical Conduct, 5 C.F.R. § 2635.01 et seq.. The Authority concluded that the revised proposal was within the duty to bargain because the Agency did not cite a specific section of the regulation at issue and did not offer any arguments in support of its contention that the proposal was nonnegotiable. FAA I, 53 FLRA at 141-42.

      In DOT, 145 F.3d 1425, the court found that the Agency had raised with sufficient clarity the issue of whether the proposal violated the Standards of Ethical Conduct's prohibition against employees accepting or soliciting gifts. The court remanded the case to the Authority "for consideration of the merits of the parties' negotiability arguments[]" that the court identified as having been sufficiently raised below. Id. at 1426. The court noted that the Authority "should . . . have requested additional briefing" from the parties if it was unable to resolve the negotiability of the proposal on the record presented. See id. at 1429.

      To assist in resolving the petition on remand, the Authority directed the parties to supplement the record by addressing specific factual and legal issues. See Authority Order, December 11, 1998 (unpublished) (Authority Order). Both parties responded to the Authority's direction and replied to the other party's response.

B.     The Purpose and Operation of the National FAM Training Program

      The National FAM Training program has existed for over 50 years as a training program for Air Traffic Controllers (ATCs). The program is administered in accordance with a series of Agency directives, and is currently governed by FAA Order 3120.209. See Agency Response to Authority Order (Agency Response), Attachment 1, Department of Transportation, Federal Aviation Administration, Familiarization Training, February 26, 1997 (FAA Order).

      In general, the National FAM Training program is a "voluntary, supplemental on-the-job training" program. FAA Order at 9. The National FAM Training program allows authorized participants access to the flight deck of an air carrier and permits the participant to travel in the "jump seat" of the aircraft. Id. The FAA Order provides that "[t]he desirability of familiarization training is recognized with the sole intent of the training to acquaint participants with the flight deck environment and enable them to observe the operation of the [Air Traffic Control] system firsthand." Id. at 5.

      The National FAM Training program allows participants to travel on "private, business, commercial, or Government aircraft" on regular duty days and, when requested by an employee, on regular days off. Id. When traveling on a National FAM Training flight, employees are considered to be "in an `official training' status and are covered by the provisions of the Federal Employees' Compensation Act in the case of injury or death, even when traveling on off-duty days." Id. at 6.

      Employees requesting travel through the National FAM Training program must complete a formal training request form and submit that form to the Agency. Id. at 13. The FAA Order specifically prohibits FAA employees from soliciting air transportation from the air carriers outside the FAM Training program on the grounds that such a solicitation "is in violation of 5 C.F.R. 2635, Standards of Ethical Conduct for Employees of the Executive Branch." Id. at 5. Within 1 calendar week of returning from travel completed through the National FAM Training program, an employee must submit a report to his or her supervisor detailing the training that he or she received during the flight. Id. at 15. [ v55 p841 ]

IV.     Positions of the Parties

A.     Agency

      The Agency asserts that the proposal is nonnegotiable under 5 U.S.C. § 7114(a)(1) because it is inconsistent with 5 C.F.R. § 2635.202. [n2]  Specifically, the Agency claims that the air travel accomplished through the use of the proposed FAM program constitutes a "gift" from a "prohibited source" within the meaning of the Standards of Ethical Conduct, 5 C.F.R. part 2635. See Agency Response to Authority Order at 7-9 (Agency Response). The Agency states that because it has "plenary authority over all civil aviation in the United States," the air carriers providing the travel for the proposed FAM program are "prohibited sources." Id. at 9. The Agency argues that the travel is a gift, and that none of the exclusions from the definition of "gift" set forth in 5 C.F.R. § 2365.203(b), or exceptions to the prohibition against accepting gifts from prohibited sources set forth in 5 C.F.R. § 2635.204, are applicable. See id. at 11-12.

      The Agency argues that the National FAM Training program is significantly different from the proposed FAM program. According to the Agency, it accepts the travel accomplished through the National FAM Training program pursuant to its agency gift acceptance statute, 49 U.S.C. § 326(a) (section 326(a)). [n3]  As a result, the Agency argues that the travel is not, pursuant to 5 C.F.R. § 2635.203(b)(8) [n4] , a "gift" within the meaning of the Standards of Ethical Conduct. The Agency asserts that the travel the Agency accepts on behalf of the employee under the National FAM Training program is a "gift of training" to the Agency from the air carrier. Agency Response at 10.

      The Agency argues that the proposed FAM program would require it to accept the gift of travel for a purpose that is inconsistent with its statutory authority to accept gifts set forth in section 326. According to the Agency, its authority under section 326(a) to accept a gift is limited to those matters that are in furtherance of the Agency "carrying out its aviation duties and powers." 49 U.S.C. § 326(a). The Agency asserts that the proposed FAM program is intended to provide free travel to ATAs, and is not intended to be an official training program. The Agency claims that ATAs "do not require any training in air traffic control procedures." Agency Response at 5. The Agency argues that, as such, accepting the gift of travel under the terms of the proposal would not be in furtherance of it carrying out its "aviation duties and powers." 49 U.S.C. § 326(a). The Agency also argues that "[i]nasmuch as the requested free travel would take place strictly on non-duty time, the Agency would therefore be prevented from assigning, regulating or evaluating any duties or work completed by the ATA during this off-duty period and such activities would be unrelated to `aviation duties.'" Agency Response at 13.

      The Agency claims that because it cannot accept the travel under section 326(a), the travel permitted through the proposed FAM program would not fall within 5 C.F.R. § 2635.203(b)(8) -- the regulatory exclusion from the definition of a gift. As such, according to the Agency, the proposal would permit ATAs to accept a gift from a prohibited source under the Standards of Ethical Conduct and, as a result, is outside the duty to bargain under section 7117(a)(1) of the Statute. [n5]  [ v55 p842 ]

B.     Union

      The Union asserts that the proposal incorporates the National FAM Training program and that it is "ludicrous for the Agency to assert that participation in the [National] FAM [Training] program [by ATAs] is a gift in violation of the Standards of Ethical Conduct . . . while [ATCs] have participated and continue to participate in the [National] FAM [Training] program." Union Response to Authority Order at 3 (Union Response). The Union asserts that the ATAs' "job performance and promotional opportunities would be enhanced by participation in the [National] FAM [Training] program," in the same manner that ATCs job performance is enhanced. Id. According to the Union, ATAs are entitled to receive the same benefit as ATCs.

      With respect to the Standards of Ethical Conduct, the Union asserts that the travel is excepted from the definition of a "gift" under 5 C.F.R. § 2635.203(b)(8), because the Agency, not the ATAs, would be accepting it pursuant to section 326(a). See id. at 4. The Union also claims that the air carriers providing the travel for FAM training flights are not a "prohibited source." The Union argues that the air carriers are only "providers" from whom the Agency is accepting travel pursuant to its authority granted in section 326(a). Id. at 5.

      The Union asserts that that section 326(a) "clearly and unambiguously" permits the Agency to accept a gift of services, such as the travel permitted through the proposed FAM program. Id. at 8. According to the Union, a "duty of the FAA is to provide air traffic control services by trained personnel[,]" and by accepting the travel permitted by the proposed FAM program for ATAs, the Agency is carrying out its duty. Id. at 6. The Union also claims that the Agency has already exercised its authority to accept a gift of travel by establishing the National FAM Training program, and that no additional acceptance or solicitation is required to permit ATAs to participate in that program.

V.     Meaning of the Proposal

      Section 1 of the proposal provides that "certified" ATAs will be permitted, by virtue of the proposed FAM program, to participate in the Agency's National FAM Training program. The National FAM Training program currently exists as an Agency sponsored training program for ATCs. Sections 2, 3, and 4 address standards and procedures for administration of the program. Sections 5 and 6 require the Agency to approve trips for ATAs on approved leave days, regular days off, and on duty time when the Agency has assigned an ATA duties at the outbound destination.

      Under sections 7 and 9 of the proposal, the program would encompass up to eight domestic trips and one international trip each year. Section 7 provides that an international trip is to be accomplished and charged as a non-duty trip. Section 8 provides that ATAs may use different air carriers for different segments of a trip. Section 10 states that if there is any commuting involved on a duty trip for the purpose of reaching a departure airport, it is at no expense to the government. Section 11 requires that ATAs submit a request to the Agency for familiarization travel at least 3 days prior to the day they intend to travel to allow for internal processing of the request. Section 12 provides that an ATA traveling on an assigned duty day will be paid the same amount as if he or she had worked a regular shift, and that an ATA traveling on off-duty days will not receive pay, overtime, or compensatory time.

      The Union asserts that the proposal is intended to provide the "benefit of free travel" as well as "enhancement of performance and promotional opportunities." Union's Response at 5, 6. In this connection, the Union argues that ATAs' job performance and promotional opportunities would be enhanced by participation in the proposed FAM program in the "same" manner that ATCs' participation in the National FAM Training program enhances ATCs' "performance and promotional opportunities." Id. at 7. In support of its argument the Union cites to sections of the National FAM Training program, which explicitly state that the purpose of that program is to train ATCs'. See id. at 3-4, 6-7. [n6]  The Union also relies on the policy statement of the National FAM Training program, which states that program participants will "benefit through their discussions and observation of air traffic control services, communica- [ v55 p843 ] tions, and in-flight problems." FAA Order at 5 (section 2-26a.); see Union Response at 6-8.

      However, while this case was pending before the Authority, the Union modified the proposal and deleted those portions of the proposal explicitly setting forth a training justification for the proposal, altering and distinguishing its purpose from the explicit training purpose of the National FAM Training program. [n7]  In fact, the Union asserts that these modifications were designed to cure any interference that the proposed FAM program may have with management's right to assign work. See id. at 7. The Union's modifications to the proposal also deleted, with one exception, the use of the proposed FAM program on ATAs' duty days. [n8]  See Union's Reply to Supplemental Statement of Position at 1-4. As such, under the terms of the proposal, an ATA traveling through the proposed FAM program would most often be on non-duty time and the Agency would not be permitted to assign or evaluate actions or duties related to that travel accomplished on the ATA's personal time.

      As the Union has removed all references to the proposed FAM program as training and deleted those portions of the proposal explicitly setting forth a training justification for the proposal, we find that the proposed FAM program does not have training as one of its purposes. See National Treasury Employees Union and Department of Agriculture, Food and Nutrition Service, 35 FLRA 254, 258 (1990) (in determining the meaning of the proposal, the Authority noted that a prior withdrawal and modification to the proposal supported a particular construction of its meaning). As such, we reject the Union's claim that ATAs would benefit in the same way from participation in the proposed FAM program as ATCs' benefit from participation in the National FAM Training program. Accepting the Union's assertions in this respect would be to view the Union's modification to the proposal as one of form and not substance.

      In sum, the proposal would require the Agency to approve requests from ATAs for travel accomplished through the National FAM Training program at no cost to the ATA. The Agency, upon receipt of the request, would be required to issue a written authorization to the ATA, who would then present that authorization to the air carrier for travel. The effect of the proposal would be that ATAs would be able to accomplish travel -- at no cost and for their own purposes -- through the National FAM Training program. Although the Union's stated purpose for its proposal -- "performance enhancement and promotional opportunities" -- suggests training implications for ATAs, we do not construe the proposal as intended to be a training program. Union Response at 7.

VI.     The Proposal Is Outside the Duty to Bargain Because it Is Contrary to 5 C.F.R. § 2635.202

      The Agency asserts that the proposal is nonnegotiable because it is inconsistent with 5 C.F.R. § 2635.202. Section 2635.202 prohibits a Government employee from, "directly or indirectly, solicit[ing] or accept[ing] a gift . . . [f]rom a prohibited source[,]" unless the item is excluded from the definition of a "gift" or falls within one of the exceptions provided in the regulation. As set forth below, we find that, under section 2635.202, the air carriers providing the travel pursuant to the proposed FAM program are a "prohibited source;" the travel is a "gift"; and the travel does not fall within one of the exclusions from the definition of "gift" under 5 C.F.R. § 2635.203(b).

A.     The Air Carriers Providing the Travel Under the Proposed FAM Program are a "Prohibited Source"

      A "prohibited source" is defined, in relevant part, as any person who:

(1) Is seeking official action by the employee's agency; (2) Does business or seeks to do business with the employee's agency; (3) Conducts activities regulated by the employee's agency; [or] (4) Has interests that may be substantially affected by performance or nonperformance of the employee's official duties . . . .

5 C.F.R. § 2635.203(d).

      It is not disputed that the air carriers on which the proposal would permit the ATAs to travel are controlled by, and subject to, the rules and regulations established [ v55 p844 ] by the Agency. Accordingly, the air carriers are a prohibited source as defined in section 2635.203(d).

      The Union asserts that an air carrier providing the gift of travel is excluded from the definition of "prohibited source" in section 2635.203(d) by virtue of section 2635.203(b)(8). However, the Union's argument is not supported by the regulation. Section 2635.203(b)(8) is an exclusion from the definition of a "gift" -- not to the definition of a "prohibited source." Section 2635.203(d) does not include any exclusions from the definition of the term "prohibited source."

      Thus, we find that the air carriers constitute a source from which an ATA would be prohibited under section 2635.202 from soliciting or accepting a gift or item of monetary value.

B.     The Proposed FAM Program Travel is Within the Definition of a "Gift" Under 5 C.F.R. § 2635.203(b)

      A "gift," within the meaning of the Standards of Ethical Conduct, is defined to include:

any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value. It includes services as well as gifts of training, transportation, local travel, lodgings and meals, whether provided in-kind, by purchase of a ticket, payment in advance, or reimbursement after the expense has been incurred.

5 C.F.R. § 2635.203(b). Section 2635.203(b)(8) specifically excludes from the definition of a "gift," "[a]ny gift accepted by the Government under specific statutory authority, including . . . gifts provided in-kind which have been accepted by an agency under its agency gift acceptance statute[.]" 5 C.F.R. § 2635.203(b)(8)(ii).

      There is no dispute that, absent an exclusion from the definition of "gift" under 5 C.F.R. § 2635.203(b) or an exception to the prohibition on accepting gifts under 5 C.F.R. § 2635.204, air travel would constitute a gift of "travel" under the regulation. The Union does not claim that the air travel is excepted from the prohibition on accepting gifts under 5 C.F.R. § 2635.204. As discussed below, the Union claims only that the air travel is excluded from the definition of "gift" under 5 C.F.R. § 2635.203(b)(8).

C.     The Travel Is Not Excluded From the Definition of a Gift by 5 C.F.R. § 2635.203(b)(8)

      The Union claims that the travel accomplished through the proposed FAM program would fall within the exclusion from the definition of "gift" under section 2635.203(b)(8) because the Agency would be accepting the travel under its gift acceptance statute, 49 U.S.C. § 326(a). The Agency disputes that it has such authority to accept the travel proposed by the Union. Accordingly, to determine whether the proposed FAM travel is excluded from the definition of a "gift" under the Standards of Ethical Conduct, we examine whether the Agency has the discretion to accept the travel under the authority set forth in section 326(a). See 5 C.F.R. §§ 2635.202(a), 2635.203(b)(8)(ii).

i.     Framework for Determining Whether the Agency May Accept the Travel Under 49 U.S.C. § 326(a)

      The Authority has consistently held that matters concerning conditions of employment are subject to collective bargaining when they are within the discretion of an agency and are not otherwise inconsistent with law, applicable rule, or regulation. See, e.g., International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 et. al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 681-82 (1995) (Bureau of Engraving and Printing), aff'd mem. sub nom. Bureau of Engraving and Printing v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996). Where an agency's discretion is limited by, for example, standards or procedures set forth in law or regulation, an agency may only bargain to the extent of that discretion. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 625, 648-50, 690 (1997); American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1330-31 (1996). A proposal concerning matters within the discretion of an agency is inconsistent with law or regulation and, thus, outside the duty to bargain, where it requires that an agency apply a standard that is contrary to a standard set forth in law or regulation. See U.S. Department of Defense, Office of Dependents Schools and Overseas Education Association, 40 FLRA 425, 441 (1991).

ii.     The Agency Does Not Have Discretion Under 49 U.S.C. § 326(a) to Bargain Over the Proposal

      The Agency and Union agree that under the National FAM Training program, the Agency accepts the gift of travel pursuant to its gift acceptance statute set forth in section 326(a). The Agency asserts, however, that it would be contrary to its authority under section 326(a) to agree to the Union's proposal. Specifically, the Agency asserts that the authority of the [ v55 p845 ] Secretary of Transportation (Secretary) to "accept a gift of services in carrying out aviation duties and powers" extends only to a limited category of gifts.

      The Agency concedes that it "can and does bargain over the implementation of its gift acceptance authority, as reflected in the [National] FAM [Training] program." Agency Response at 15. However, the Agency argues that this bargaining is permissible because the training of ATCs falls within the statutory standard. The Agency asserts that ATAs -- unlike ATCs -- "do not require any training in air traffic control procedures." Id. at 5. According to the Agency, its authority under section 326(a) does not extend to bargaining over securing free travel for its employees on non-duty time.

      Section 326(a) is a part of the statute creating the Department of Transportation and, among other organizational sub-administrations, the Agency. See 49 U.S.C. §§ 101, 106. On its face, the statute provides that the Agency has the authority to accept a gift of services "in carrying out aviation duties and powers." The statute does not provide any definition or explanation of the phrase "aviation duties and powers." The only legislative history relevant to interpreting that phrase states that "[t]he words `aviation duties and powers' [were] added [to section 326(a)] because the source provisions being restated only appl[y] to carrying out duties and powers related to the Federal Aviation Administration." 49 U.S.C.A. § 326 (Historical and Statutory Notes) (citing Detailed Explanation prepared by the Office of the Law Revision Counsel, 1982 U.S. Code Cong. and Adm. News, p. 4220).

      The Agency interprets the phrase "carrying out aviation powers and duties" as a limitation on the scope of gifts that it may properly accept. Specifically, with respect to training, the Agency interprets the phrase as limiting it to accepting as a gift only training that is directly related to "aviation duties." The Union does not contend that the Agency has the authority under section 326(a) to accept a gift of travel on non-duty time that does not have a training purpose and that is intended only to provide employees free travel. Rather, the Union argues that the proposed FAM program would provide ATAs the same benefits as ATCs enjoy under the National FAM Training program, and that section 326(a) encompasses gifts that would provide "performance enhancement and promotional opportunities" for Agency employees. Union Response at 7.

      We rejected above, in our construction of the meaning of the proposal, the Union's argument that ATAs' job performance and promotional opportunities would be enhanced by participation in the proposed FAM program in the "same" manner that ATCs' participation in the National FAM Training program enhances their job performance and promotional opportunities. Id. In particular, we are unable to reconcile the Union's assertions with its modifications of the proposal to: (1) remove all references to the proposed FAM program as training; (2) delete those portions of the proposal explicitly setting forth a training justification for the proposal; and (3) delete, with one exception, the use of the proposed FAM program on duty days.

      Although the Union has removed the training purpose (and, consistent therewith, travel on duty time) from the proposed FAM program -- which is the only intended purpose of the National FAM Training program -- it continues to rely on the National program to support its claims regarding the purpose of the proposed program. After deleting all references to training, and taking the position that the provision does not have a training purpose, the Union has no basis for claiming that the proposed FAM program accomplishes the same things as the National FAM Training program. Some aspects of the proposed FAM program and the National FAM Training program may be the same -- traveling on an aircraft in the cockpit at no cost to the participant and minor procedural features. However, given the Union's modifications, the similarities end there.

      The Agency points to the deletion of the training purpose from the proposal as the "fatal flaw" in the Union's position. Agency Reply to Union's Response at 6. In its Reply to the Agency's Response, the Union does not respond to this argument. The Union also does not respond to the Agency's argument that to the extent that the proposed travel would take place on non-duty time, it is not related to the agency's "aviation duties." [n9]  The Union simply reiterates that the proposed FAM program is intended to provide the same performance enhancement and promotional opportunities received by ATCs through their participation in the National FAM Training program. The Union states that the free travel an ATA would receive through its participation in the proposed FAM program is "incidental" to the "job benefits received by the ATA." Union Reply to Agency's Response at 2. However, as the Union expressly modi- [ v55 p846 ] fied its proposal to eliminate any connection between the travel and training, and as the Union does not assert any job performance enhancement or promotional opportunities separate from those derived by ATCs from the National FAM Training Program, there is no other purpose to which the free travel is incidental. [n10] 

      Because the Union has not established that the proposed FAM program has any purpose other than free travel on non-duty time, the Union's argument that the Agency can accept the proposed travel under section 326(a) fails. In these circumstances, we find that there is no basis for concluding that the Agency can accept under section 326(a) the travel set forth in the proposed FAM program.

D.     Conclusion

      The proposal would permit ATAs to travel on non-duty time at no cost to the ATA, without any training purpose. Nothing in the record establishes that providing such free travel to ATAs is a part of, or in furtherance of, the Agency fulfilling its aviation duties or powers under section 326(a). Because the proposal requires the Agency to accept a gift that, under the specific circumstances presented by this proposal, the Agency cannot accept pursuant to its gift acceptance statute, 49 U.S.C. § 326(a), the travel is not excluded from the definition of a gift under 5 C.F.R. § 2635.203(b)(8)(ii).

      As it is not alleged that any other regulatory exclusion or exception applies in this case, we find that the proposal would permit the employee to accept a gift from a prohibited source in violation of the Standards of Ethical Conduct, 5 C.F.R. § 2635.202. Accordingly, we conclude that the proposal is inconsistent with 5 C.F.R. § 2635.202 and thus, outside the duty to bargain under section 7117(a)(1) of the Statute.

VII.     Order

      The Union's petition for review is dismissed.


APPENDIX

The Union's proposal provides:

Section 1.      All enroute and terminal bargaining unit members who are certified in their respective positions are eligible to participate in the national standardized familiarization program. Once a bargaining unit member achieves eligibility, he/ she is not again required to meet this provision.
Section 2.      The national standardized program shall include standards and procedures pertaining to familiarization flying in air carriers, private aircraft, and military aircraft. (Air Carrier includes any commercial, commuter flight, or air taxi flights under Title 14, CFR, Parts 121, 135, or 298). No facility or regional office of the Employer shall add, delete, or in any way alter the standardized familiarization program.
Section 3.      The Parties recognize that familiarization travel in air carriers involves procedures and internal regulations of individual air carriers. Matters beyond the purview of the Employer include, but are not limited to, number of trips per air carrier per year, dress code in the cockpit, eligibility for participation, and procedures for application to participate. The Parties recognize that any air carrier may suspend or abridge their participation in the familiarization program at any time and that the Employer has no jurisdiction over the conduct of the program by the individual air carriers.
Section 4.      The Parties recognize that private and military operators determine their own internal regulations and procedures governing flight familiarization by employees and that such regulations and procedures are beyond the purview of the Employer to change, except in the case where the stated procedures are contrary to the Employer's requirements for employee participation.
Section 5.      The employee shall be placed in official travel status and paid per diem, if he/she is assigned duties at the outbound destination as part of the familiarization trip. Approved familiarization visits to other facilities or regional offices at [ v55 p847 ] the outbound destination to observe the use of new equipment, facility operations and procedures, etc., during duty days are not assigned duties but shall entitle the employee to be in duty status during his/her regularly scheduled shift. Both Parties recognize that the standard government travel regulations require that employees be placed on official travel status when assigned duties at the destination and, further, that budgetary limitations govern the approval of familiarization travel involving assignment of official duties.
Section 6.      The Employer shall approve a familiarization trip for approved leave days, regular days off and for duty days (if the Employer assigns duties at the outbound destination) in any combination.
Section 7.      Included in the national standardized program shall be provisions for one (1) foreign overseas trip per calendar year. Foreign seas travel under this Section shall be accomplished and charged as a non-duty trip. Employees eligible under this Article may also travel to overseas domestic locations, but such travel will not be considered as foreign overseas travel. For the purpose of this Agreement, trips to Mexico and Canada shall be considered overseas domestic.
Section 8.      Employees are authorized to use different air carriers or the same air carrier for different segments of the same familiarization trip.
Section 9.      Except where carriers have indicated they will allow more than one (1) trip per year, employees shall be limited to no more than one (1) familiarization trip per air carrier per year. Employees are entitled to a maximum of eight (8) domestic/overseas domestic trips per calendar year.
Section 10.      Commuting trips shall be at no expense to the government. If commuting is involved on any of the duty trips, the employee shall commence his/her familiarization travel within eight (8) hours of the time he/she departs his/her duty station. The employee shall be released from his/her facility and will be considered on duty time for up to two (2) hours so as to reasonably arrive at the departure airport one (1) hour prior to the proposed departure time.
Section 11.      Employees are required to submit all familiarization requests to the facility in sufficient time to allow three (3) administrative days for internal processing. This is in addition to the advance notice required by the air carrier and time for mailing.
Section 12.      An employee traveling on such a flight on his/her regularly assigned duty day receives the same premium pay he/she would have received had he/she worked his/her regular shift. For one (1) hour prior to the proposed departure time and until one (1) hour after the actual arrival time at the final destination the employee shall be considered on duty time. Premium pay, overtime, or compensatory time/credit hours will not be paid to an employee who is traveling on off-duty days.





Footnote # 1 for 55 FLRA No. 146

   The Union also modified section 9 of the proposal to eliminate any reference to duty time and section 10 to eliminate reference to trips that would have been approved under section 9. See Union Response to Agency Statement of Position at 4.


Footnote # 2 for 55 FLRA No. 146

   5 C.F.R. § 2635.202 provides, in relevant part, that:

Except as provided in this subpart, an employee shall not, directly or indirectly, solicit or accept a gift . . . [f]rom a prohibited source[.]

Footnote # 3 for 55 FLRA No. 146

   Section 326(a) provides that:

The Secretary of Transportation may accept and use conditional or unconditional gifts of property for the Department of Transportation. The Secretary may accept gifts of services in carrying out aviation duties and powers. Property accepted under this section and proceeds from that property must be used, as nearly as possible, under the terms of the gift.

      We note that the Agency's brief cites section 326(a) text that was revised in 1983. Agency Response at 13 (Agency substitutes pre-revision wording -- "is authorized to accept, hold, administer, and utilize" gifts -- for post-revision wording -- "may accept and use conditional or unconditional gifts of property"). The analysis in this decision is based on the current version of section 326(a).


Footnote # 4 for 55 FLRA No. 146

   5 C.F.R. § 2635.203(b)(8) provides, in relevant part, that a gift does not include:

Any gift accepted by the Government under specific statutory authority, including . . . gifts provided in-kind which have been accepted by an agency under its agency gift acceptance statute[.]

Footnote # 5 for 55 FLRA No. 146

   In its Response to the Authority Order, the Agency set forth additional arguments in support of its claim that the proposal is nonnegotiable. See Agency Response at 2-4. Those arguments are not discussed herein because the Authority Order specifically stated that the parties were "limited to the negotiability issue identified by the court as being raised by the parties during the Authority's initial consideration of this case[.]" Authority Order at 2. In this connection, the only negotiability issue identified by the court was whether the proposal is inconsistent with the prohibition against the acceptance of gifts as set forth in the Standards of Ethical Conduct.


Footnote # 6 for 55 FLRA No. 146

   The specific sections of the National FAM Training program relied on by the Union provide in pertinent part the following:

Familiarization training is considered to be supplemental to the air traffic training program. The desirability of familiarization training is recognized with the sole intent of the training to acquaint participants with the flight deck environment and enable them to observe the operation of the [Air Traffic Control] system firsthand.

FAA Order at 5 (section 2-2b.).

The FAM Training Program is a voluntary, supplemental on-the-job training program conducted at no cost to the Government or the air carriers who provide the training. The Air Carrier FAM Training Program allows authorized participants access to the flight deck of air carrier aircraft to directly observe flight operations. Participants and flightcrews mutually benefit through their discussions and observation of air traffic control services, communications, and in-flight problems.

Id. at 9 (section 2-26a.).


Footnote # 7 for 55 FLRA No. 146

   The National FAM Training program provides that "familiarization training [accomplished through the program] is recognized with the sole intent of the training to acquaint participants with the flight deck environment and enable them to observe the operation of the [Air Traffic Control] system firsthand." FAA Order at 5.


Footnote # 8 for 55 FLRA No. 146

   As noted above, the proposal provides for travel accomplished through the proposed FAM program on "duty days" where the employee is "assigned duties at the outbound destination." Proposal, Sections 5 and 6. The Union has not requested severance in this case, has not mentioned Sections 5 and 6 in its submissions, and has not asserted that the portions of the proposal relating to duty time raise issues distinct from the other portions of the proposal or are distinguishable from the proposal as a whole. Additionally, neither party has addressed travel on duty days. Accordingly, we do not separately address this issue.


Footnote # 9 for 55 FLRA No. 146

   Unlike ATAs traveling on non-duty time through the proposed FAM program, ATCs participating in the National FAM Training program on non-duty days are traveling "in an `official training' status," with the "sole intent" and justification for the travel being training. FAA Order at 5-6. Regardless of whether ATCs are requesting training through the National FAM Training Program on duty or non-duty days, they must always complete a formal training request form to be approved by the Agency, and submit a report to their supervisors detailing the training received during the flight. See id. at 13, 15.


Footnote # 10 for 55 FLRA No. 146

   Since the Union modified the proposal to eliminate the connection between travel and training, we do not address whether the ATAs would have a need for training under the FAM program for the reasons expressed by th