09:0726(88)NG - NTEU and Treasury, IRS -- 1982 FLRAdec NG

 9 FLRA No. 88
 
 NATIONAL TREASURY
 EMPLOYEES UNION
 Union
 
 and
 
 DEPARTMENT OF TREASURY,
 INTERNAL REVENUE SERVICE
 Agency
 
                                            Case No. O-NG-459
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND RAISES THE
 QUESTION OF THE NEGOTIABILITY OF THE FOLLOWING UNION PROPOSAL.
 
                              UNION PROPOSAL
 
    EMPLOYEES ELECTING TO COMMUTE FROM THEIR PRESENT ADDRESS SHALL BE
 REIMBURSED FOR COMMUTING
 
    EXPENSES.
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 CONTENTIONS OF THE PARTIES, THE AUTHORITY MAKES THE FOLLOWING
 DETERMINATIONS.  THE DISPUTE AROSE WHEN THE AGENCY NOTIFIED THE UNION OF
 ITS INTENT TO MOVE ITS COMPUTER SOFTWARE SECTION FROM WASHINGTON, D.C.,
 TO THE NATIONAL COMPUTER CENTER IN MARTINSBURG, WEST VIRGINIA.  IN
 RESPONSE, THE UNION SUBMITTED THE INSTANT PROPOSAL, AMONG OTHERS,
 PROVIDING THAT EMPLOYEES ELECTING TO COMMUTE TO THE NEW LOCATION FROM
 THEIR PRESENT ADDRESSES WOULD BE REIMBURSED FOR COMMUTING EXPENSES.
 
    REIMBURSEMENT OF FEDERAL EMPLOYEES FOR MILEAGE EXPENSES IS GOVERNED
 BY 5 U.S.C. 5704 (1980).  THIS SECTION PROVIDES THAT FEDERAL EMPLOYEES
 ARE ENTITLED TO REIMBURSEMENT FOR MILAGE ONLY IF THEY ARE "ENGAGED ON
 OFFICIAL BUSINESS FOR THE GOVERNMENT." /1/ THIS SECTION PRECLUDES AN
 AGENCY FROM REIMBURSING-- I.E., DOES NOT AUTHORIZE AN AGENCY TO
 REIMBURSE-- AN EMPLOYEE FOR MILEAGE UNLESS THAT EMPLOYEE IS ENGAGED IN
 ACTIVITIES WHICH CONSTITUTE "OFFICIAL BUSINESS FOR THE GOVERNMENT." WITH
 CERTAIN EXCEPTIONS NOT PRESENT IN THIS CASE, /2/ IT IS WELL ESTABLISHED
 THAT TRAVEL BETWEEN AN EMPLOYEE'S RESIDENCE AND HIS OR HER DUTY STATION
 DOES NOT CONSTITUTE "OFFICIAL BUSINESS FOR THE GOVERNMENT" WITHIN THE
 MEANING OF 5 U.S.C. 5704.  /3/ THAT IS, EMPLOYEES MUST BEAR THE COST OF
 TRANSPORTATION BETWEEN THEIR PLACE OF RESIDENCE AND THEIR OFFICIAL DUTY
 STATION.  SUCH EXPENSES ARE PERSONAL TO EMPLOYEES AND MAY NOT BE
 CONSIDERED AS INCURRED IN OFFICIAL TRAVEL.  THUS, THE PROPOSED
 REQUIREMENT FOR REIMBURSEMENT OF EXPENSES INCURRED IN COMMUTING FROM
 HOME TO WORK IS INCONSISTENT WITH FEDERAL LAW AND IS OUTSIDE THE DUTY TO
 BARGAIN UNDER THE STATUTE.  SEE SECTION 7117(A)(1) OF THE STATUTE.
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE PETITION FOR
 REVIEW OF THE DISPUTED PROPOSAL BE, AND IT HEREBY IS, DISMISSED.  /4/
 ISSUED, WASHINGTON, D.C., AUGUST 3, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 5704 PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 5704.  MILEAGE AND RELATED ALLOWANCES
 
    (A) UNDER REGULATIONS PRESCRIBED UNDER SECTION 5707 OF THIS TITLE, AN
 EMPLOYEE WHO IS
 
    ENGAGED ON OFFICIAL BUSINESS FOR THE GOVERNMENT IS ENTITLED TO NOT IN
 EXCESS OF--
 
    (1) 11 CENTS A MILE FOR THE USE OF A PRIVATELY OWNED MOTORCYCLE;
 
    (2) 20 CENTS A MILE FOR THE USE OF A PRIVATELY OWNED AUTOMOBILE;  OR
 
    (3) 24 CENTS A MILE FOR THE USE OF A PRIVATELY OWNED AIRPLANE;
 INSTEAD OF ACTUAL EXPENSES
 
    OF TRANSPORTATION WHEN THAT MODE OF TRANSPORTATION IS AUTHORIZED OR
 APPROVED AS MORE
 
    ADVANTAGEOUS TO THE GOVERNMENT.  A DETERMINATION OF SUCH ADVANTAGE IS
 NOT REQUIRED WHEN
 
    PAYMENT ON A MILEAGE BASIS IS LIMITED TO THE COST OF TRAVEL BY COMMON
 CARRIER INCLUDING PER
 
    DIEM . . . .
 
    /2/ SEE, E.G., 36 COMP.GEN. 450, 453 (1956, 55 COMP.GEN. 1323, 1328
 (1976);  MATTER OF DEPARTMENT OF AGRICULTURE MEAT GRADERS, COMPTROLLER
 GENERAL DECISION B-131810 (JANUARY 3, 1978).
 
    /3/ SEE, E.G., 36 COMP.GEN. 450, 452-53 (1956);  55 COMP.GEN. 1323,
 1327 (1976);  MATTER OF CARL P. MAYER, COMPTROLLER GENERAL DECISION
 B-171969.42 (JANUARY 9, 1976);  MATTER OF JOHN B. CLYDE, COMPTROLLER
 GENERAL DECISION B-195421 (FEBRUARY 21, 1980).
 
    /4/ IN VIEW OF THIS DISPOSITION OF THE CASE, THE AUTHORITY FINDS IT
 UNNECESSARY TO REACH THE QUESTION OF WHETHER THE UNION'S PROPOSAL IS
 ALSO INCONSISTENT WITH ANY GOVERNMENT-WIDE RULE OR REGULATION, AS THE
 AGENCY CONTENDS.