[ v14 p423 ]
14:0423(66)NG
The decision of the Authority follows:
14 FLRA No. 66
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, NATIONAL COUNCIL
OF HUD LOCALS
Union
and
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
Agency
Case No. O-NG-436
DECISION AND ORDER ON NEGOTIABILITY ISSUE /1/
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 concerns the
negotiability of the following Union proposal. /2/
Union Proposal
(1) If an IPA assignment is terminated by management direction,
any repayment obligation shall be waived.
(2) An IPA assignee's official file shall be documented to
indicate a management-directed termination of an IPA assignment.
(Only the underlined language is in dispute.)
Question Before the Authority
The question is whether, as alleged by the Agency, Part 1 of the
proposal is outside the duty to bargain because it is inconsistent with
Federal law (5 U.S.C. 3372).
Opinion
Conclusion and Order: The disputed portion of the proposal is not
inconsistent with 5 U.S.C. 3372 as the Agency alleged and, thus, is not
outside 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 on this proposal. /3/
Reasons: An "IPA assignment," as is the subject of the disputed
proposal, is an assignment pursuant to subchapter VI, chapter 33, of
title 5, United States Code, which governs the temporary assignment of
personnel between the Federal government and State or local governments
or institutions of higher education. Such assignments, so far as is
here relevant, permit Federal civilian employees of executive agencies
to serve with State or local governments or institutions of higher
education for periods of up to four years without loss of employee
rights and benefits. 5 U.S.C. 3372.
The executive agency and the State or local government concerned may
agree to establish the IPA assignment on a wholly or partially
reimbursable or nonreimbursable basis. 5 U.S.C. 3373. Certain travel
expenses of a Federal employee on assignment to a State or local
government, or educational institution may be paid or reimbursed by the
executive agency. However, payment or reimbursement of these travel
expenses may be allowed only if the employee agrees as part of the
written assignment agreement to serve the entire period of the IPA
assignment or one year, whichever is shorter, unless the assignment is
terminated for reasons beyond the employee's control that are acceptable
to the executive agency. If the IPA assignment is not carried out, the
travel expenses are recoverable from the employee as a debt due the
United States. 5 U.S.C. 3375.
The Union states that its proposal is intended to deal with the
obligation of the Federal Employees it represents to repay money spent
by the Agency for those employees' travel expenses in connection with
IPA assignments which are covered by and payable under the provisions of
5 U.S.C. 3375. /4/ In this connection, an employee's repayment
obligation arises when the employee violates his or her agreement to
complete the entire period of the IPA assignment or one year, whichever
is shorter. Under that section, an agency may waive an employee's
repayment obligation under certain conditions. That is, if the employee
is separated or reassigned for reasons beyond the employee's control
that are acceptable to the agency, travel expenses may be allowed even
though the employee does not complete the assignment. The Union,
consistent with the language of the proposal, interprets it as providing
for such waiver of repayment obligations only when the waiver would be
in accordance with the provisions of 5 U.S.C. 3375(b). /5/ The
Authority adopts such interpretation of the proposal. Therefore, 5
U.S.C. 3375 would not bar negotiations on the proposal.
The Agency claims that the proposal is inconsistent with 5 U.S.C.
3372(c). /6/ This provision does not render the proposal nonnegotiable.
Under 5 U.S.C. 3372(c)(1) and (2), an employee is required to repay all
expenses (excluding salary) connected with an IPA assignment should the
employee fail to carry out his or her agreement to serve in the civil
service upon completion of the IPA assignment for a period of time equal
to the length of the assignment. The employee must make such an
agreement as a condition of accepting an IPA assignment. (See note 4,
supra.) However, the proposed language and the Union's stated intent as
to its meaning do not in any manner concern the employee's agreement to
serve in the civil service upon completion of the IPA assignment.
Rather, the proposal concerns only the IPA assignment itself and the
Agency's waiver of an employee's repayment obligation if the IPA
assignment is terminated by management. Therefore, the Agency's
contentions that the provisions of 5 U.S.C. 3372(c) bar negotiations on
the proposal are inapposite.
Accordingly, since the proposal has not been found to be inconsistent
with either 5 U.S.C. 3372 or Sec. 3375, the proposal is within the duty
to bargain. Issued, Washington, D.C., May 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Agency's request to dismiss the appeal as untimely is hereby
denied. In this regard, based upon the record, the Union filed its
appeal within the prescribed 15-day period after the Agency alleged in
writing, in the response to the Union's written request, that the
proposals in question are nonnegotiable. See American Federation of
Government Employees, AFL-CIO, Local 3385 and Federal Home Loan Bank
Board, District 7, Chicago, Illinois, 7 FLRA No. 58 (1981).
/2/ The appeal, as filed, involved six proposals. Subsequently, the
Union requested permission to withdraw five of those proposals. The
Union's request is hereby granted.
/3/ In deciding that the proposal is within the duty to bargain, the
Authority makes no judgment as to its merits.
/4/ 5 U.S.C. 3375 provides in relevant part:
Sec. 3375. Travel expenses
(a) Appropriations of a Federal agency are available to pay, or
reimburse, a Federal or State or local government employee . . . .
. . . .
(b) Expenses specified in subsection (a) of this section, other
than those in paragraph (1)(C), may not be allowed in connection
with the assignment of a Federal or State or local government
employee under this subchapter, unless and until the employee
agrees in writing to complete the entire period of his assignment
or 1 year, whichever is shorter, unless separated or reassigned
for reasons beyond his control that are acceptable to the Federal
agency concerned. If the employee violates the agreement, the
money spent by the United States for these expenses is recoverable
from the employee as a debt due the United States. The head of
the Federal agency concerned may waive in whole or in part a right
of recovery under this subsection with respect to a State or local
government employee on assignment with the agency.
/5/ Union Reply Brief at 5.
/6/ 5 U.S.C. 3372(c)(1) and (2) provides:
Sec. 3372. General provisions
. . . .
(c)(1) An employee of a Federal agency may be assigned under
this subchapter only if the employee agency, as a condition of
accepting an assignment under this subchapter, to serve in the
civil service upon the completion of the assignment for a period
equal to the length of the assignment.
(2) Each agreement required under paragraph (1) of this
subsection shall provide that in the event the employee fails to
carry out the agreement (except for good and sufficient reason, as
determined by the head of the Federal agency from which assigned)
the employee shall be liable to the United States for payment of
all expenses (excluding salary) of the assignment. The amount
shall be treated as a debt due the United States.