File 2: Member Pope's Decision
[ v58 p324 ]
Member Carol Waller Pope, concurring:
I agree with the majority that the provision at issue is contrary to law. I write separately because I reach this conclusion for reasons that differ somewhat from the majority's and because I disagree with certain aspects of the majority's reasoning.
To begin, it is clear, as the majority states, that an agency is obligated under the Statute to bargain over proposals over which it has discretion. Applying this principle, the Authority has required an agency to bargain over proposals requiring particular expenditures of funds where the agency had discretion to expend funds for those particular purposes. In NTEU, for example, the Authority held that bargaining over the payment of union travel expenses for collective bargaining was permissible because such payment was within the agency's discretion under the relevant statutory and regulatory provisions, which authorized expenditures for "official business" that "is necessary to accomplish the purposes of the Government." NTEU, 21 FLRA at 10, 15, 18 (citing 5 U.S.C. § 5702; Federal Travel Regulations § 1-1.4). Similarly, in the two cases primarily relied on by the Union, GSA and BATF, the Authority held that agencies had the discretion to pay for telephones used by unions under the applicable statutory and regulatory provisions, which authorized expenditures for telephone service for "official business" that is necessary "in the interest of the [Government]." GSA, 24 FLRA at 432-33 (citing 31 U.S.C. § 1348(b), 41 C.F.R. § 201-38.007). In so holding, the Authority relied on the Congressional finding in § 7101 of the Statute that labor organizations and collective bargaining are in the public interest in determining that payment of the unions' telephone expenses was authorized. Id. at 432.
In my view, these decisions establish that the Statute may be appropriately used to determine whether a standard for expenditure of funds established in a separate statute has been satisfied. In that way, the Statute arguably may be seen as indirectly authorizing expenditures. However, the Statute does not directly authorize expenditures and is relevant in this context only insofar as it assists determining whether the requirements in another authorizing statute have been satisfied. Thus, the answer to the first question posed by the Court of Appeals in its remand -- "whether the expenditures required by the disputed provision are authorized by the [Statute]" -- is a negative one. Puerto Rico Army Chapter, 269 F.3d at 1118. In this regard, I believe that the majority inappropriately discounts the significance of the Statute in determining whether expenditures are authorized by another statute. While the Statute does not, standing alone, authorize expenditures, it is not, as [ v58 p325 ] the majority appears to find, irrelevant in determining whether another statute constitutes such authorization.
Turning to the question of whether another statute authorizes the expenditures encompassed by the disputed provision in this case, the only statute allegedly authorizing the expenditures is the Agency's general, recurring appropriation. [n1] See Union Supplemental Statement at 1, 4. In particular, the Agency's appropriation for Fiscal Year 2000 -- the year in which the provision was disapproved --provides money for, as relevant here, "operation" of the Army National Guard. DOD Appropriations Act, 2000, Pub.L. No. 106-79, 113 Stat. 1212, 1217 (1999). Thus, in my view, it is necessary to determine whether the specific expenditures required by the provision at issue here are appropriately encompassed by the Agency's authorization to expend funds for the operation of the Army National Guard. As for the specific expenditures, the Agency would be required under the disputed provision to reimburse employees for unavoidable losses of funds expended in planning leave that was approved and then cancelled by the Agency for compelling need. The provision includes, as specific examples of the losses to be reimbursed, "hotel reservations, airline tickets, etc." According to the Union, the provision also would require reimbursement of such expenses as "tickets for local theater, sports events and banquets." Motion for Reconsideration at 2.
As the majority notes, "[a]ppropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law." Majority Decision at 12 (quoting 31 U.S.C. § 1301(a)). Thus, although the term "operations" in the Agency's appropriation appears to provide the Agency broad discretion to expend funds, the discretion is not unlimited. Unlike the majority, I do not believe that it is necessary to find "express language" in the appropriation indicating that agency operations encompass the expenditures at issue. [n2] Id. at 13. Instead, I would find it necessary only to determine whether, applying the plain words of the appropriation itself, the expenditures are for, or tied to, the Agency's operations.
In my view, the disputed provision encompasses some expenditures that would be tied to the Agency's operations. As an example, if the Agency directed an employee to return to work from another location on approved leave, I believe the Agency would have discretion to reimburse the employee for the travel expenses (or additional expenses) necessary to return to work. [n3]
But the provision is not limited to expenditures that are tied to the Agency's operations. In particular, I am unable to discern, and the Union does not establish, how expenditures for theater, sports, and banquet tickets are tied to the Agency's operations. In this regard, the losses associated with these items may well follow from the Agency's decision to cancel leave, and in that manner be "unavoidable." Nevertheless, such expenditures are not for, or tied to, the Agency's operations. Unlike travel expenses necessary to return to work from leave, such ticket expenses are purely personal to the employee. Put simply, I find nothing in the term "operations" itself that would encompass theater, sports, and banquet tickets.
Consistent with the approach in NTEU, GSA, and BATF, and with our instructions from the Court of Appeals, it is not sufficient to construe the words of the appropriation act in isolation. Instead, it is necessary to determine whether and how the Statute assists in determining whether the "operations" standard in the appropriation act is satisfied. [n4] In this regard, the Union claims that the disputed provision constitutes an appropriate arrangement under § 7106(b)(3) of the Statute and, in its second question to the Authority on remand, the Court of Appeals asks whether the disputed provision is "authorized as an `appropriate arrangement for [ v58 p326 ] employees adversely affected by the exercise of [agency management] authority' in canceling leave and `assign[ing] work.'" Puerto Rico Army Chapter, 269 F.3d at 1118. In my view, if the provision constituted an appropriate arrangement for employees adversely affected the Agency's exercise of its rights under the Statute, then that would be relevant to determining, and would support a conclusion that, the provision was for, or tied to, the Agency's operations. [n5]
In determining whether a provision is an appropriate arrangement, the Authority follows the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under this analysis, the Authority first determines whether the provision is intended to be an arrangement for employees adversely affected by the exercise of a management right. See id. at 31; see also United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). The claimed arrangement must also be sufficiently tailored to compensate employees suffering adverse effects attributable to the exercise of management's rights. See, e.g., Customs Serv., 55 FLRA at 1187. If the provision is determined to be an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). See KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. See id.
As applied here, even assuming that the provision constitutes an arrangement that is sufficiently tailored, I would find that it is not appropriate because it excessively interferes with the Agency's rights. In this regard, as stated above, the provision would require the Agency to reimburse employees not only for expenses necessary to return to work from cancelled leave, but also for unused theater, sports, and banquet tickets. In my view, the Agency's liability under the provision is so uncontrollable, so unforeseeable, and so unrelated to the Agency's exercise of its right to assign work as to be excessive. Therefore, the provision is not an appropriate arrangement.
Based on the foregoing, I am unable to determine that the Agency has discretion under the appropriation act, read in conjunction with the Statute, to agree to reimburse employees for the full range of expenditures encompassed by the provision. It is well established that a provision may be properly disapproved under § 7114(c) if it includes matters that are contrary to law, even if it also includes matters that are not contrary to law. Patent Office Professional Ass'n, 47 FLRA 10, 89-90 (1993). Therefore, the Agency properly disapproved the provision and the petition should be dismissed.
Finally, I have noted my disagreement with the majority's refusal to accord the Statute appropriate significance in determining whether the expenditures encompassed by the disputed provision are authorized and its failure to comply with the court's direction to determine whether the provision constitutes an appropriate arrangement. In addition to those matters, I disagree with the majority's reliance on 10 U.S.C. § 1053a. The individuals who are subject to § 1053a have no right to engage in collective bargaining. See 10 U.S.C. § 976. Thus, it is inappropriate, in my view, to infer from the fact that specific legislation was enacted to authorize reimbursement of travel and related expenses for them that such legislation also is required for the unit employees involved in this case, who are entitled to engage in collective bargaining. Finally, I would not reach the issue of whether the provision is contrary to 5 U.S.C. § 5536. It is far from clear to me that the reimbursements encompassed by the disputed provision constitute "pay or allowance for the disbursement of public money," within the meaning of that section. However, as the provision is otherwise contrary to law, it is not necessary to resolve that issue here.
File 1: Authority's Decision in 58 FLRA No. 75
File 2: Member Pope's Opinion
Footnote # 1 for 58 FLRA No. 75 - Member Pope's Opinion
The Union asserts that the Authority "should presume that an agency has appropriated funds for general agency operations . . . unless the agency expressly claims the opposite and makes an adequate demonstration overcoming the presumption." Union Supplemental Statement at 4 (citations omitted). As a general matter, I agree that, unless there is an argument to the contrary, it is unnecessary to determine whether expenditures encompassed by a disputed proposal or provision are specifically authorized. In this case, however, there is no dispute that the Agency has authority to expend funds for its operations and, instead, the issue is whether the expenditures encompassed by the provision are authorized by that appropriation.
Footnote # 2 for 58 FLRA No. 75 - Member Pope's Opinion
The majority's reference to this is confusing. In this regard, the majority states that although the wording of the appropriations statute is "the first possible consideration," it is "certainly not the only possible consideration." Majority Opinion at 12, 13. However, the majority does not disclose what the other "possible considerations" are and, more importantly, does not determine whether they are present in this case. Put differently, the majority hints that the provision may be lawful under different -- unspecified -- circumstances without determining whether those unspecified circumstances are present in this case.
Footnote # 3 for 58 FLRA No. 75 - Member Pope's Opinion
While it is not necessary, in my view, to rely on decisions of the Comptroller General, I note that the Comptroller General has permitted agency reimbursement of this type expense. See Delbert C Nahm, B-91,588 (1979). This is an exception to the Comptroller General's rule that employee losses caused by the cancellation of leave are not reimbursable. See Earl Barlow, 241,294 (1991).
Footnote # 4 for 58 FLRA No. 75 - Member Pope's Opinion
Of course, if the expenditures were prohibited by a specific statute or regulation, then the provision would be contrary to law on that ground. Similarly, if a specific statute or regulation authorized such expenditures, then the terms of that statute or regulation would apply. In this case, there is no claim that the provision encompasses expenditures that are either specifically prohibited or specifically authorized by any particular statute or regulation.
Footnote # 5 for 58 FLRA No. 75 - Member Pope's Opinion
In view of the specificity of the court's remand, I believe that it is necessary to determine whether the provision constitutes an appropriate arrangement and that the majority errs in failing to make that determination. Moreover, the majority's reasoning that it is not necessary to make the appropriate arrangement determination because the provision is contrary to law ignores that determining whether the provision is an appropriate arrangement is relevant in determining whether the provision is contrary to law in the first place.