17:0890(116)NG - Maritime Metal Trades Council and Panama Canal Commission -- 1985 FLRAdec NG

 17 FLRA No. 116
 
 MARITIME METAL TRADES 
 COUNCIL 
 Union
 
 and 
 
 PANAMA CANAL COMMISSION 
 Agency
 
                                            Case No. 0-NG-946
 
                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 five Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 /1/ the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Professional employees are authorized to cash personal checks
       at the Commission's Treasury or its branches in amounts up to
       $1,000.00.  Two returned checks not the fault of the banking
       institution will be cause for revocation of personal check cashing
       privileges for a period up to six months.
 
                             Union Proposal 2
 
          The Commission will do everything it can to see that
       professional employees are authorized to cash personal checks at
       the Commission's Treasury or its branches in amounts up to
       $1,000.00.  Two returned checks not the fault of the banking
       institution will be cause for revocation of privileges for a
       period up to six months.  The Commission will report to the Union
       weekly on its progress in achieving this goal.
 
    Union Proposal 1 would authorize professional employees personal
 check cashing privileges at the Agency's Treasury and/or its branches of
 up to $1000.00.  Union Proposal 2 would require the Agency to do
 everything it can to ensure this result if the Agency ascertains that
 the proposal could not be implemented due to the regulations of an
 outside authority.  The record indicates that presently employees have
 limited check cashing privileges at the Agency.
 
    The sole contention of the Agency is that personal check cashing is
 not a condition of employment within the meaning of section 7103(a)(14)
 of the Statute, and therefore is outside the scope of bargaining.  The
 Union contends that personal check cashing is a condition of employment,
 and, alternatively, that the Agency's past practice of providing
 personal check cashing privileges makes such matter a condition of
 employment.
 
    The duty to bargain under the Statute extends only to "conditions of
 employment," i.e., personnel policies, practices and matters affecting
 working conditions.  In construing that statutory phrase, the Authority
 has found proposals which concern matters directly affecting "the work
 situation and employment relationship" of bargaining unit employees to
 be within the duty to bargain.  E.g., National Treasury Employees Union
 and Internal Revenue Service, 3 FLRA 693 (1980).  See also American
 Federation of Government Employees, AFL-CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 606 (1980),
 enforced as to other matters sub nom. Department of Defense v. Federal
 Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied
 sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982).
 
    By their terms and effect, the disputed proposals do not concern
 personnel policies, practices, or matters affecting working conditions
 of unit employees.  In this regard, the Authority concludes that
 personal check cashing is a matter which has no direct relationship to
 the work situation and the employment relationship of unit employees.
 Rather, such matter principally relates to activities of employees
 involved in non-work activities while in non-duty status.  Cf.
 International Association of Fire Fighters, AFL-CIO, CLC, Local F-116
 and Department of the Air Force, Vandenberg Air Force Base, California,
 7 FLRA 123 (1981) (wherein the Authority concluded that a proposal
 requiring the agency to grant off-duty personnel and their dependents
 hunting and fishing recreation on the facility did not concern matters
 which were a condition of employment because there was no relationship
 to the work situation or employment relationship) and National
 Federation of Federal Employees, Local 1363 and United States Army
 Garrison, Yongsan, Korea, 12 FLRA 635 (1983) (wherein the Authority
 concluded that a proposal regarding the dispensation of alcoholic
 beverages in NAFIs did not concern matters which were conditions of
 employment within the meaning of section 7103(a)(14) of the Statute,
 since such matters principally relate to activities of employees
 involved in non-work activities while in non-duty status).
 
    The Union asserts its proposals are to the same effect as the
 proposal in National Federation of Federal Employees, Local 1363 and
 Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA 139 (1980),
 enforced sub nom. Department of Defense, Department of the Army v. FLRA,
 685 F.2d 641 (D.C. Cir. 1982), wherein the Authority concluded that the
 matter of ration control was a "condition of employment" within the
 meaning of section 7103(a)(14) of the Statute.  Such matter was found to
 be directly related to the "reasonable standards of health and decency"
 for unit employees serving in certain locations required by an agency
 policy as a precondition to the employment relationship.  In the
 circumstances of the present case, to the contrary, the policies of the
 Agency regarding personal check cashing privileges have not been shown
 in the record to be a precondition to the employment relationship.
 
    Nor can the Union's additional argument that personal check cashing
 has become a condition of employment because of the Agency's past
 practice of providing this service be sustained.  The mere fact that an
 agency may unilaterally provide such a service does not, per se, make
 such a matter a condition of employment subject to the duty to bargain
 under the Statute, i.e., a personnel policy or practice or matter
 affecting working conditions of employees in the bargaining unit.  Cf.
 National Association of Air Traffic Specialists and Department of
 Transportation, Federal Aviation Administration, 6 FLRA 588 (1981)
 (Union Proposal 4) (wherein the Authority concluded that the mere fact
 that an agency may, pursuant to statutory authority, permit payroll
 allotments for any legal purpose does not mean that all such allotments
 constitute conditions of employment over which it has a duty to
 bargain).
 
    Hence, the Authority finds that the disputed proposals regarding
 personal check cashing privileges do not concern matters which are
 conditions of employment within the meaning of section 7103(a)(14) of
 the Statute.  Therefore, the Agency is not obligated to bargain with
 respect to the proposals.
 
                             Union Proposal 3
 
          The Commission hereby adopts the travel regulations of the
       Department of State applicable to Federal Government employees
       working overseas.
 
                             Union Proposal 4
 
          The Commission will do everything it can to adopt the travel
       regulations of the Department of State applicable to Federal
       Government employees working overseas.  The Commission will make
       quarterly reports to the Union on its progress in achieving the
       goals set forth in this article.
 
    Union Proposal 3 would require the Agency to adopt the travel
 regulations of the Department of State applicable to that agency's
 employees working overseas.  Union Proposal 4 would require the Agency
 to do everything it can to ensure this outcome.  Presently, the Agency
 follows the Federal Travel Regulations (FTRs) which are applicable to
 official travel of civilian employees of Government agencies, including
 civilian employees of the Department of Defense, as authorized under 5
 U.S.C. 5701-5709.  The Union's stated purpose of these proposals is to
 have the Agency supplant its present policy of following the FTRs with a
 policy of following State Department regulations instead.
 
    The regulations at issue in the present case, the FTRs, are
 incorporated by reference in Part 101-7 of the FPMRs, 41 CFR 101-7,
 promulgated by the Administrator of General Services.  These
 regulations, as relevant herein, were issued under the authority of 5
 U.S.C. 5701-5709.  By their terms, these regulations generally apply to
 and are binding on the Federal Civilian work force as a whole, though
 not, of course, to every Federal employee.  As such, these regulations
 are generally applicable throughout the Federal government and are
 "Government-wide regulations" within the meaning of section 7117(a).
 See American Federation of Government Employees, AFL-CIO, Local 3483 and
 Federal Home Loan Bank Board, New York District Office, 13 FLRA 446
 (1983).
 
    The Union contends that, since the Agency here, before the passage of
 the Panama Canal Act of 1979, was a government controlled corporation
 and therefore was not covered under the FTRs issued under the authority
 of 5 U.S.C. 5701-5709, it is questionable whether Congress intended the
 Agency to come under the FTRs by the passage of the Panama Canal Act.
 However, the Union's contention is without merit.  The passage of Panama
 Canal Act of 1979 converted the Agency into an executive agency.  Panama
 Canal Act, Pub. L. No. 96-70, Sec. 1101, 93 Stat. 452, 456 (1970).
 Chapter 57 of title 5 grants, in relevant part, executive agencies the
 authority to provide travel expenses to their employees pursuant to the
 FTRs, the regulations implementing that statutory provision.  Therefore,
 the Agency here, as an executive agency, must follow the FTRs.  /2/
 Union Proposal 3, thus, is contrary to Government-wide regulations and,
 consequently, outside the duty to bargain.
 
    According to the Union's stated intent, Union Proposal 4 would
 require the Agency to do whatever it can, including suggesting to
 Congress that a legislative change permitting the Agency to adopt the
 travel regulations of the Department of State is advisable.  The
 Authority has held in American Federation of Government Employees,
 AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C.,
 8 FLRA 409 (1982), that matters specifically provided for by law or
 which would require modification of existing legal or regulatory
 provisions are not within the duty to bargain.  According to the
 reasoning in the Office of Personnel Management case, proposals
 concerning influencing the content of Government-wide regulations to
 affect conditions of employment are outside the duty to bargain because
 the relationship between such efforts, on one hand, and changes in
 personnel policies, practices, and matters affecting working conditions,
 on the other hand, is, at best remote and speculative.  Since, as stated
 earlier, the FTRs are Government-wide regulations within the meaning of
 section 7117(a), the Agency has no obligation to bargain over their
 modification for the reasons more fully set forth in Office of Personnel
 Management.
 
                             Union Proposal 5
 
          The Commission will do everything it can to see that a
       professional employee shall continue to receive official mail at
       his work station.  Official mail includes, but is not limited to,
       letters, journals, magazines and newspapers which relate to the
       employee's performance of his official duties.
 
    The purpose of the Union's proposal is to define what material
 constitutes official mail, i.e., mail which relates to the employee's
 performance of official duties.  In National Treasury Employees Union
 and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA
 255 (1979), the Authority held that in the context of section 7106(b)(1)
 /3/ the "means" of performing work refers to any instrumentality,
 including an agent, tool, device, measure, plan, or policy used by the
 agency for the accomplishing or the furthering of the performance of its
 work.  Cf. American Federation of Government Employees, AFL-CIO, Local
 1858 and Department of the Army, U.S. Army Missile Command, Redstone,
 Arsenal, Alabama, 10 FLRA 440 (1982) (Union Proposal 3) (a proposal
 requiring the acquisition and/or use of certain taped documents and
 teletype-writer equipment, clearly concerned the "technology, methods,
 and means of performing work" within the meaning of section 7106(b)(1)
 of the Statute).
 
    It is clear that under section 7106(b)(1) of the Statute the Agency
 has the right to determine the tools used in performance of the Agency's
 work.  In this respect, the Authority concludes, in agreement with the
 Agency, that Union Proposal 5 insofar as it would establish what outside
 information is necessary to perform official duties and, thus, the tools
 to be used in performing the Agency's work, violates the Agency's right
 to determine its means of performing work under section 7106(b)(1) of
 the Statute.  /4/
 
    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.  
 
 Issued, Washington, D.C., May 8, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union requests a hearing before the Authority apparently
 based on certain alleged factual discrepancies in the record, such as
 availability of banking facilities for bargaining unit employees.
 However, such information is not relevant to a determination of whether
 a matter is within the scope of bargaining under the Statute, i.e.,
 consistent with law or applicable rule or regulation.  Further, it is
 well established that the parties bear the burden of directing the
 Authority to the laws, regulations and other authorities relevant to the
 statutory obligation to bargain.  National Federation of Federal
 Employees, Local 1167 v. FLRA, 681 F.2d 886 at 891 (D.C. Cir. 1982),
 affirming National Federation of Federal Employees, Local 1167 and
 Department of the Air Force, Headquarters, 31st Combat Support Group
 (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981).
 
 
    /2/ In this respect, the Authority, contrary to the Union's argument,
 agrees with the Agency's contention that the educational travel benefits
 specifically provided for in the Panama Canal Act at section 1207
 indicate that when Congress intended to exempt the Agency from the FTRs,
 such intent was clearly expressed.
 
 
    /3/ Section 7106 provides in relevant part:
 
          Sec. 7106.  Management rights
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
          (1) at the election of the agency, . . . on the technology,
       methods, and means of performing work(.)
 
 
    /4/ In view of this decision, it is unnecessary to address the
 additional contentions of the Agency with respect to the negotiability
 of the proposals.