20:0803(98)NG - AFGE Local 1799 and Army, Aberdeen Proving Ground, MD -- 1985 FLRAdec NG

 20 FLRA No. 98
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL 1799
 Union
 
 and
 
 U.S. DEPARTMENT OF THE ARMY, 
 ABERDEEN PROVING GROUND, 
 MARYLAND
 Agency
 
                                            Case No. 0-NG-980
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises issues
 concerning the negotiability of one Union proposal.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                              Union Proposal
 
       ARTICLE 10, Section 9 If an employee is required to work
       unscheduled overtime after his normal 8-hour tour of duty and was
       not notified the previous day, transportation to his home will be
       provided by the Employer, if necessary.
 
    The Agency contends that the proposal is nonnegotiable because it is
 inconsistent with 31 U.S.C. 1344 /2/ (formerly 31 U.S.C. 638a(c)(2)
 /3/).  31 U.S.C. 1344 provides that an appropriation may be expended to
 maintain, operate and repair passenger motor vehicles or aircraft of the
 United States Government that are used only for an official purpose and
 that an official purpose with certain very limited exceptions does not
 include transporting officers or employees of the Government between
 their domiciles and places of employment.  The Authority in agreement
 with the Agency finds that the specific language of section 1344
 precludes the Agency by statute from providing transportation between an
 employee's place of employment and his domicile.  Moreover, as to the
 Union's contention that section 1344 itself provides for an exception to
 the prohibition of providing employees transportation from work to home
 when the transportation is approved by the head of the Agency, the
 Authority notes that the cited exception in section 1344(a)(2) pertains
 only to "officers or employees performing field work" and not to
 employees required to work unscheduled overtime.  /4/
 
    Finally, the Authority has previously determined that transportation
 of employees from a point between their homes and their workplaces would
 not be inconsistent with 31 U.S.C. 638a(c)(2) if (1) such transportation
 of employees were incident to use of the Government vehicle for official
 purposes as determined by the agency within its administrative
 discretion;  and (2) such transportation of employees were itself within
 the Government's interest as determined by the agency within its
 administrative discretion, subject to collective bargaining.  See
 American Federation of Government Employees, AFL-CIO, Local 3525 and
 United States Department of Justice, Board of Immigration Appeals, 10
 FLRA 61 (1982) (Proposal 1) cited in U.S. Department of Transportation,
 Federal Aviation Administration, Airways Facilities Sector, Chicago
 O'Hare Airport, Chicago, Illinois and Professional Airways Systems
 Specialists, Local 301, 16 FLRA No. 133 (1984).  In Board of Immigration
 Appeals, the Authority found a proposal involving shuttle bus
 transportation of employees from a point between their homes and
 workplace to be negotiable because in the circumstances presented such
 transportation of employees was incident to use of a Government vehicle
 for official purposes, and such transportation of employees was itself
 within the Government's interest as determined by the agency within its
 administrative discretion.  However, in the instant case, the record
 does not indicate that the proposed transportation of employees from
 work to their domicile is incident to an authorized use, but rather it
 appears to be the primary use.
 
    Based upon the foregoing, the Union's proposal is not within the duty
 to bargain under the Statute because it is contrary to law, i.e., 31
 U.S.C. 1344.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  /5/
 
    Issued, Washington, D.C., December 4, 1985.
 
                                       (s)---
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       (s)---
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ The Agency withdrew its allegation of nonnegotiability on one
 other proposal and the Union withdrew its appeal as to three other
 proposals.  These proposals therefore will not be considered further
 herein.
 
 
    /2/ 31 U.S.C. 1344 provides:
 
       1344.  Passenger motor vehicle and aircraft use
 
          (a) Except as specifically provided by law, an appropriation
       may be expended to maintain, operate, and repair passenger motor
       vehicles or aircraft of the United States Government that are used
       only for an official purpose.  An official purpose does not
       include transporting officers or employees of the Government
       between their domiciles and places of employment except--
 
          (1) medical officers on out-patient medical service;  and
 
          (2) officers or employees performing field work requiring
       transportation between their domiciles and places of employment
       when the transportation is approved by the head of the agency.
 
          (b) This section does not apply to a motor vehicle or aircraft
       for the official use of-- (1) the President;
 
          (2) the heads of executive departments listed in section 101 of
       title 5;  or
 
          (3) principal diplomatic and consular officials
 
 
    /3/ According to the legislative history of the present statutory
 provision, the change from 31 U.S.C. 638a(c)(2) to 31 U.S.C. 1344 was
 made solely for the purpose of clarity and the elimination of
 unnecessary words.  H.R. Rep. No. 97-651, 97th Cong., 2d Sess. 68-69
 (1982), reprinted in 1982 U.S. Code Cong. & Ad.  News 1962-1963.
 
 
    /4/ See Comptroller General Decision B-210555.10 (August 19, 1985) in
 which the Comptroller General stated:
 
       In our decision in 62 Comp.Gen. 438 (1983), we concluded that some
       of our previous decisions interpreting 31 U.S.C. 1344 included
       "overly broad language which implied exceptions to the statutory
       prohibition which we did not intend." We then set out to restate
       the law as unequivocally as possible.  We held that unless certain
       narrow exceptions apply, "agencies may not properly exercise
       administrative discretion to provide home-to-work transportation
       to their officers and employees, unless otherwise provided by
       statute." 62 Comp.Gen. at 447.  Section 1344(a) of title 31
       provides exemptions from the home-to-work prohibition for medical
       officers performing outpatient services and certain employees
       performing field work ... Further, Section 1344(b) exempts a small
       group of officials from the home-to-work prohibition.  That group
       includes the President, the heads of cabinet departments
       specifically listed in section 101 of title 5, and "principal
       diplomatic and consular officials." 31 U.S.C. 1344(b) (1982) ...
 
 
    /5/ In view of the decision herein, it is unnecessary to address the
 Agency's additional contention regarding the Union's proposal.