21:0711(89)NG - AFGE, Local 3106 and Dept. of Agriculture -- 1986 FLRAdec NG



[ v21 p711 ]
21:0711(89)NG
The decision of the Authority follows:


 21 FLRA No. 89
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 AFL-CIO, LOCAL 3106
 Union
 
 and
 
 U.S. DEPARTMENT OF AGRICULTURE
 Agency
 
                                            Case. No. 0-NG-916
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and raises issues
 concerning the negotiability of a single Union proposal.  /1/
 
                            II.  Union Proposal
 
          Employees covered by the agreement and required by management,
       as a condition of employment, to furnish horse and necessary
       equipment to be used on the job will be entitled to an allowance
       of:  $115.00 per day period the first year of the agreement,
       $120.00 per pay period the second year of the agreement, $125.00
       per pay period the third year of the agreement, for its use.
 
          The effective date for payment of this allowance shall be the
       first full pay period following the beginning of FY 83.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposal violates its right to determine
 its budget under section 7016(a)(1) of the Statute.  The Union contends
 that the Agency has not met its burden under the test established by the
 Authority in American Federation of Government Employees, AFL-CIO and
 Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2
 FLRA 604 (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, 455 U.S. 995 (1982).
 
                       B.  Analysis and Conclusions
 
    The Department of Agriculture (the Agency) conducts the Tick
 Eradication Program (TEP), which is designed to prevent the
 reestablishment of cattle fever ticks in the United States.  The Agency
 determined that in order to implement the TEP employees would need to
 travel by horseback into remote areas.  Employees who work in this
 program are therefore required, as a condition of their employment, to
 maintain a horse, trailer, and other related equipment.  At the time
 this negotiability dispute arose, the Agency was reimbursing those
 employees for costs incurred in complying this requirement at a rate of
 $110.00 per day period.  /2/ This payment is designed solely to
 reimburse employees for expenses they would not have had but for the
 Agency's requirement.  For this reason, the "horse allowance" is not a
 part of an employer's wages.  That is, it is not a part of the
 compensation paid to employees in exchange for their labor.  For the
 same reason, it is not a fringe benefit.  Matters such as retirement,
 life and health insurance are not reimbursable employee expenses, but
 are part of a total compensation package paid to employees.
 
    The Union's proposal requires the Agency to increase the rate of
 reimbursement for the "horse allowance" to $125.00 over a period of
 three years.  As to the agency's contention that the proposal is
 nonnegotiable under section 7106(a)(1), the Authority held in
 Wright-Patterson, that in order to demonstrate that a union proposal
 directly interferes with management's right to determine its budget it
 is necessary for the agency either to show that the proposal prescribes
 the programs and operations to be included in the agency's budget or the
 amount to be allocated for them, or to make a substantial demonstration
 that the anticipated increase in costs is significant and unavoidable
 and is not offset by compensating benefits.  It is clear from the record
 that the proposal concerns a program which already exists, i.e., TEP,
 and is currently funded by the Agency's budget.  Moreover, the proposal
 does not prescribe the amount to be allocated to this program.  Rather
 it concerns the cost of only one item within that program, i.e., the
 "horse allowance." /3/ Under the first part of the Wright-Patterson
 test, therefore, the proposal does not directly interfere with the
 Agency's right to determine its budget.
 
    Under the second part of that test, the Agency has not demonstrated
 that implementation of the Union's proposal would result in a
 significant increase in costs.  In particular, while the Agency claims
 that the proposal would require an additional $50,000 for the "horse
 allowance" /4/ that figure represents only 1.7% of the total budget for
 the TEP /5/ and an even smaller percentage of the budget for the Animal
 and Plant Health Inspection Service, which administers the program.  /6/
 It is not necessary, therefore, to consider whether the alleged increase
 in costs is outweighed by compensating benefits.  Consequently, in this
 respect also the Union's proposal does not directly interfere with the
 right of the Agency to determine its budget under section 7016(a)(1) of
 the Statute.  National Treasury Employees Union, Chapter 6 and Internal
 Revenue Service, New Orleans District, 3 FLRA 747, 764-66 (1980) (an
 agency had not demonstrated significant and unavoidable increased costs
 based upon the percentage increase in costs to that agency for the
 fiscal year).  See American Federation of Government Employees, AFL-CIO,
 Local 3477 and Commodity Futures Trading Commission, 21 FLRA No. 18
 (1986) (Authority held that even if a proposal required the agency to
 budget larger amounts for its incentive awards program, the agency had
 not shown that such an increase would not be offset by compensating
 benefits).
 
    Since the Agency has not demonstrated that the Union's proposal would
 directly interfere with its right to determine its budget, the proposal
 is within the Agency's duty to bargain under the Statute.
 
                                III.  Order
 
    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 the proposal.
 /7/
 
    Issued, Washington, D.C., May 9, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       Federal Labor Relations Authority
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Agency has requested permission to file an additional
 submission in this case.  However, the Authority finds that no
 additional submissions are necessary and, pursuant to Section 2424.8 of
 its Rules and Regulations, denies the Agency's request.
 
    (2) Agency Statement of Position at 1-2;  Union Reply to Agency
 Statement of Position at 2.
 
    (3) See Attachment to Agency Statement of Position.
 
    (4) Agency Statement of Position at 2.
 
    (5) Attachment to Agency Statement of Position.  The "Grand Total" of
 all costs for the TEP is stated therein as $2,809.068.  The alleged
 increase in costs for the "horse allowance" of $50,000 is 1.7% of the
 total.  As the Union points out, it is unclear whether