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The decision of the Authority follows:
13 FLRA No. 13 NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 208 Union and NUCLEAR REGULATORY COMMISSION Agency Case No. O-NG-283 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 two Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 4. In the event that an employee is ordered to travel outside normal duty hours in order to be at a site when it opens, he/she shall be considered in a pay status for the travel period, for which he/she shall be entitled to enter overtime pay or compensatory time. The same situation would exist on return travel should the employee be ordered to travel outside of duty hours. (This is in accordance with NRC Appendix 4136 Part VII B.2.d in that the event (the opening and closing of the site) is scheduled or controlled by someone outside of the Executive Branch of Government.) Question Before the Authority The question is whether Union Proposal 1 is inconsistent with Federal law and, therefore, outside the duty to bargain under section 7117(a)(1) of the Statute, /1/ as alleged by the Agency. Opinion Conclusion and Order: Union proposal 1 is not inconsistent with Federal law and is within the duty to bargain under section 7117(a)(1) of the Statute. Accordingly, pursuant to section 2424.10 of the , Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 1. Reasons: The record indicates that, in exchange for the reopening of one nuclear waste disposal site in each of their states by the Governors of Washington and Nevada, the Agency agreed to furnish full time, instead of periodic, inspection services at the sites to insure adherence to Agency regulations. The Agency subsequently provided the agreed upon services by detailing an inspector to each site for a one week, Monday through Friday, tour of duty from a regional office located in a suburb of San Francisco. Union Proposal 1 would require that when the detailed inspectors must travel outside their normal duty hours in order to be present during the hours of operation of the disposal sites, the inspectors shall be in a pay status. Applicable Federal law, 5 U.S.C. 5542(b)(2)(B), /2/ specifies that one of the limited circumstances under which hours outside of normal working hours spent in a travel status away from an employee's official duty station are hours of employment is if the travel "results from an event which could not be scheduled or controlled administratively." The question of whether the instant proposal is inconsistent with law turns on whether the "event" from which the travel in question results is administratively uncontrollable. The Agency contends that the "event" requiring travel is the previously mentioned agreement between the Agency and the two Governors, and concludes that as a party to that agreement it "clearly has administrative control generally over the agreement and specifically over the hours of duty established to meet the terms of the agreement." This conclusion is not supported in the record. Rather, insofar as appears from the record, the terms of the agreement would require inspectors to be present during the hours of operation of the disposal sites. Therefore, it is the establishment of the hours of operation at each site which is the "event" from which travel outside employees' normal duty hours directly would result. The Agency effectively concedes in the record that the hours of operation at the sites are not matters within its administrative control but are set by a private commercial firm independent of the Agency. /3/ Thus, the circumstances herein are distinguishable from those in the Court of Claims case /4/ and Comptroller General decisions /5/ relied upon by the Agency, in that the cited cases involved circumstances wherein management retained partial or complete control over the event requiring travel. Accordingly, it is concluded that the exception set forth in 5 U.S.C. 5542(b)(2)(B)(iv) is applicable to the circumstances herein and, therefore, the proposal is not inconsistent with Federal law. The Agency notes that Union Proposal 1 would require overtime compensation for travel both to and from the disposal sites and asserts that the entitlement to such compensation for travel to the site is not controlling as to travel from the site. While the Agency's position is correct, under applicable regulations, where an employee completes his or her temporary assignment located away from the employee's duty station at close of business on Friday and departs immediately (or shortly) thereafter for his or her residence-- as is the case here-- such travel, outside the employee's regular work hours, is to be considered hours of employment. In this regard, pursuant to its responsibility under 5 U.S.C. 5548(a), the Office of Personnel Management (OPM) has issued regulations and guidance governing the administration of overtime. In Federal Personnel Manual Supplement 990-2, Book 500, Subchapter S1 (1983), "Premium Pay", OPM has provided examples of travel resulting from an event which cannot be scheduled or controlled administratively. Among the examples provided is the following (at 550-13): . . . when a training course is conducted by an institution outside the Government, it is an event which cannot be scheduled or controlled administratively and required travel outside the employee's regular work hours to attend the training course will be considered hours of employment. . . . . . . . if the employee (whose regular hours of work are 8 a.m. to 5 p.m., Monday through Friday) completes the course at 5 p.m. Friday, his travel on either Friday night or Saturday (depending on availability of transportation) will be payable, because, under a decision of the Comptroller General (B-160258, November 21, 1966), he is not entitled to per diem if he should remain until Monday, and thus, his travel time cannot be controlled realistically. This example is analogous to the circumstances of this case, where overtime compensation is sought for travel after completion of work assignments on Friday. Hence it is concluded that such compensation would not be inconsistent with governing regulations. For the reasons stated, Union Proposal 1 is not inconsistent with applicable Federal law or regulations and therefore is within the Agency's duty to bargain. Union Proposal 2 5. Employees shall be considered in a per diem status from the time they leave for the site until the time they return, unless they elect to go into a previously approved leave status during the tour of duty. Question Before the Authority The question is whether Union Proposal 2 is inconsistent with a Government-wide regulation and, therefore, not within the duty to bargain under section 7117(a)(1) of the Statute, as the Agency alleged. Opinion Conclusion and Order: Union Proposal 2 is not inconsistent with a Government-wide regulation and, hence, is within the duty to bargain under section 7117(a)(1) of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 2. Reasons: The Agency asserts that the proposal would conflict with the Federal Travel Regulations, issued pursuant to 5 U.S.C. 5707(a), under which a Federal employee would not be entitled in a number of situations to receive per diem payments for the full period of his or her travel. The Agency characterizes the proposal as requiring per diem payments in contravention of applicable regulations. But according to the Union, the proposal would merely require employees to be considered in a status for which they could be paid per diem so far as would be consistent with applicable regulations from the time they leave for the site until the time they return: as the Union concedes, however, "the question as to whether the employee would be compensable in that status remains an issue of application of the travel regulations and the proposal together." Thus, insofar as the proposal would not require disbursements which would be inconsistent with applicable regulations but, instead, merely would require that covered employees receive all allowable per diem payments, in the circumstances described, under applicable regulations, Union Proposal 2 is within the duty to bargain. /6/ Issued, Washington, D.C., September 22, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7117(a)(1) provides as follows: Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation. /2/ 5 U.S.C. 5542(b)(2)(B) provides as follows: Sec. 5542. Overtime rates; computation . . . . (b) For the purpose of this subchapter-- . . . . (2) time spent in a travel status away from the official duty station of an employee is not hours of employment unless-- . . . . (B) the travel (i) involves the performance of work while traveling, (ii) is incident to travel that involves the performance of work while traveling, (iii) is carried out under arduous conditions, or (iv) results from an event which could not be scheduled or controlled administratively. /3/ Agency clarification in response to request by the Authority, in which it stated: "Both the Washington and Nevada waste disposal sites are operated by a private commercial firm . . . which sets its own hours of operation independent of the (Agency). There are no (Agency) regulations or agreements which govern or control the hours of operation." /4/ Barth v. United States, 568 F.2d 1129 (Ct. Cl. 1978). /5/ Matter of Dept. of Labor, B-190494, May 8, 1979; Matter of Mark Burstein, B-172671, March 8, 1977; and 51 Comp.Gen. 727 (1972). /6/ In finding Union Proposal 1 and 2 within the duty to bargain, the Authority makes no judgment as to their merits.