[ v21 p1015 ]
21:1015(120)CA
The decision of the Authority follows:
21 FLRA No. 120
WARNER ROBINS AIR LOGISTICS CENTER
(AFLC), ROBINS AIR FORCE BASE, GEORGIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 987
Charging Party
Case No. 4-CA-40120
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the General
Counsel and by the Respondent. The General Counsel also filed a brief
in opposition to the Respondent's exceptions. The case concerns
whether, as found by the Judge, the Respondent violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute) based on its failure to give the Union prior
notice and an opportunity to request bargaining with regard to
procedures and appropriate arrangements for unit employees adversely
affected by its decision to change the guidelines used for review of
employees' travel expense claims.
II. Background
The facts, more fully set forth in the Judge's Decision, indicate
that on or about October 21, 1983, Warner Robins Air Logistics Center
(Respondent), without any notice to the Union, established and
implemented a new method and guidelines to evaluate travel vouchers for
expenses incurred by employees while performing temporary duty in high
rate geographic areas (HRGA). Essentially this change involved the
application of stricter standards regarding whether or not such expenses
were necessary or prudent. The stricter standards for review had not
been exercised by the Respondent prior to October 21, 1983, and there
had been no disallowances of any travel claims submitted by unit
employees who had been in a travel status within a HRGA prior to that
date. The parties stipulated that the change to a stricter standard of
review or closer scrutiny of employee travel vouchers resulted in
disallowances of some portion of actual expenses claimed on 106 of 111
vouchers submitted by unit employees between October 21, 1983, and
February 5, 1984 /1/ amounting to $60,561.71. Additionally, at least
three employees received admonishments regarding these disallowances.
III. Judge's Decision
The Judge found that the Respondent had established and implemented
the new method and guidelines for evaluating travel vouchers without
giving the Union notice or an opportunity to bargain about procedures
and appropriate arrangements for employees adversely affected by the
change, thereby violating section 7116(a)(1) and (5) of the Statute.
The Judge determined that a status quo ante remedy would be appropriate
in that all employees who traveled during the period from October 21,
1983, to February 5, 1984, when a new standard was implemented, were
entitled to have their travel claims considered under the standards in
effect prior to October 21. However, the Judge declined to order that
all disallowed expenses automatically be paid or that all admonishments
automatically be expunged.
IV. Positions of the Parties
The General Counsel excepts to the wording of the Judge's Decision
regarding the "make whole" remedy for employees whose claimed expenses
were denied. The General Counsel asserts that, as currently written,
the language in the Judge's Decision may be misconstrued so as not to
include any travel expense claim disallowances for travel incurred prior
to October 21, 1983, and included in the travel claims submitted by
employees after October 20, 1983. The General Counsel argues that, to
be consistent with the Judge's findings, the remedy should include all
travel claims submitted to the Respondent after October 20, 1983,
concerning travel to an HRGA prior to February 5, 1984.
The Respondent excepts to the Judge's conclusions that the actions of
its Accounting and Finance Officer (AFO) in denying claims are
attributable to the Respondent; that the AFO's determinations
concerning travel expense claims constitute a condition of employment
within the meaning of section 7103(a)(14) of the Statute; that there
was a change in past practice regarding the scrutiny of claims; and
that Respondent violated section 7116(a)(1) and (5) of the Statute.
V. Analysis
All of the issues raised in the Respondent's exceptions were
considered fully by the Judge in his Decision. In agreement with the
Judge, and for the reasons he stated, the Authority finds that the
Respondent violated section 7116(a)(1) and (5) of the Statute by its
failure to give the Union prior notice and an opportunity to request
bargaining with regard to procedures and appropriate arrangements for
unit employees adversely affected by its decision to change the
guidelines used for review of employees' actual expense claims for
travel in high rate geographical areas (HRGA).
The Authority also agrees that a status quo ante remedy is warranted.
This conclusion is based upon a careful balancing and consideration of
the specific factors enumerated in Federal Correctional Institution, 8
FLRA 604 (1982). More specifically, the Respondent established and
implemented the new method and guidelines for evaluating certain travel
vouchers without any prior notice to the Union. In these circumstances,
the Union had no opportunity to request bargaining. The Respondent's
unilateral action, although without apparent willfulness, resulted in
the disallowance of some portion of actual expenses claimed on 106 of
111 vouchers submitted by bargaining unit employees, whereas no claimed
actual expenses for such travel were disallowed prior to the change. A
total of $60,561 was disallowed and at least three employees received
admonishments regarding disallowances. Moreover, there is no evidence
in the record, nor did the Respondent assert, that a status quo ante
remedy would disrupt or impair the efficiency and effectiveness of
Respondent's operations.
Under all of the foregoing circumstances, the Authority concludes
that a status qup ante remedy is warranted in order to best effectuate
the purposes and policies of the Statute. Such status quo ante remedy
would require the Respondent to reexamine vouchers submitted after
October 21, 1983, for travel to a HRGA prior to February 5, 1984,
pursuant to guidelines used prior to October 21, 1983, and remunerate
employees accordingly, consistent with applicable law and regulation;
to reestablish and apply the guidelines in effect prior to October 21,
1983, until modified in accordance with the requirements of the Statute;
and to expunge any record of admonishments for disallowed travel
expenses which would have been allowed under the preexisting guidelines.
/2/
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings and conclusions, with the additional rationale for the
status quo ante remedy as noted, and revises his recommended Order to
clarify the language and avoid any ambiguity noted by the General
Counsel in his exceptions. Therefore the Authority finds that the
Respondent violated section 7116(a)(1) and (5) of the Statute as alleged
in the complaint and shall order that it take appropriate action to
remedy the violation.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Warner Robins Air Logistice Center
(AFLC), Robins Air Force Base, Georgia shall:
1. Cease and desist from:
(a) Changing the guidelines for review of employee actual travel
expense claims without first affording the American Federation of
Government Employees, AFL-CIO, Local 987, the designated agent of the
exclusive representative of the affected employees, notice and an
opportunity to bargain, consonant with the obligations imposed by the
Statute, concerning the procedures for implementing such changes and
appropriate arrangements for employees adversely affected by such
changes.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Reinstate the guidelines for examination of vouchers for travel
to high rate geographical areas in effect prior to October 21, 1983.
(b) Notify the American Federation of Government Employees, AFL-CIO,
Local 987, of any proposed change in the guidelines used for review of
employee actual travel expense claims and, upon request, negotiate with
the exclusive representative, to the extent consonant with the
obligations imposed by the Statute, concerning appropriate arrangements
for employees adversely affected by such changes.
(c) Examine under the guidelines in effect prior to October 21, 1983,
each appropriate voucher involving travel to a high rate geographical
area submitted to the Warner Robins Air Logistics Center Accounting and
Finance Office after October 21, 1983, concerning travel prior to
February 5, 1984, on which date the unilaterally imposed guidelines and
method for evaluating such vouchers were discontinued, by any employee
represented by the American Federation of Government Employees, AFL-CIO,
Local 987, and make whole said employees accordingly, consistent with
applicable law and regulation.
(d) Expunge any recorded admonishment for disallowed expenses which
would have been allowed under the standards and guidelines in effect
prior to October 21, 1983, and notify the employee accordingly.
(e) Post at Warner Robins Air Logistics Center (AFLC), Robins Air
Force Base, Georgia, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by an appropriate official and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
ensure that such notices are not altered, defaced, or covered by any
other material.
(f) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IV, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., May 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT change the guidelines for review of employee actual
travel expense claims without first affording the American Federation of
Government Employees, AFL-CIO, Local 987, the designated agent of the
exclusive representative of the affected employees, notice and an
opportunity to bargain, consonant with the obligations imposed by the
Statute, concerning the procedures for implementing such changes and
appropriate arrangements for employees adversely affected by such
changes.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL reinstate the guidelines for examination of vouchers for
travel to high rate geographical areas in effect prior to October 21,
1983.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, Local 987, of any proposed change in the guidelines used for
review of employee actual travel expense claims and, upon request,
negotiate with the exclusive representative, to the extent consonant
with the obligations imposed by the Statute, concerning appropriate
arrangements for employees adversely affected by such changes.
WE WILL examine under guidelines in effect prior to October 21, 1983,
each appropriate voucher involving travel to a high rate geographical
area submitted to the Warner Robins Air Logistics Center Accounting and
Finance Office after October 20, 1983, concerning travel prior to
February 5, 1984, on which date the unilaterally imposed guidelines and
method for evaluating such vouchers were discontinued, by any employee
represented by the American Federation of Government Employees, AFL-CIO,
Local 987, and make whole said employees accordingly, consistent with
applicable law and regulation.
WE WILL expunge any recorded admonishment for disallowed expenses
which would have been allowed under the standards and guidelines in
effect prior to October 21, 1983, and notify the employee accordingly.
(Agency or Activity)
Dated:
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region IV, Federal Labor Relations Authority, whose address
is: 1371 Peachtree Street, NE, Suite 736, Atlanta, Georgia 30367, and
whose telephone number is: (404) 347-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 4-CA-40120
WARNER ROBINS AIR LOGISTICS CENTER (AFLC), ROBINS AIR FORCE BASE,
GEORGIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
987
Charging Party
Major Ralph J. Lee, Esquire
C. R. Swint, Jr., Esquire
For the Respondent
Ms. Nedra Bradley
For the Charging Party
James R. Puhger, Esquire
Edward P. Nichols, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region IV, Federal Labor Relations Authority,
Atlanta, Georgia, against the Warner Robins Air Logistics Center (AFLC),
Robins Air Force Base, Georgia (Respondent or WR-ALC) based on a charge
filed by the American Federation of Government Employees, AFL-CIO, Local
987 (Charging Party, Union, or AFGE). The complaint alleged, in
substance, that Respondent violated section 7116(a)(1) and (5) of the
Federal Service Labor-Management Relations Statute, 5 U.S.C. Section
7101 et seq. (the Statute), in that on or about October 21, 1983, the
Respondent discontinued reimbursement to employees the maximum amounts
allowable pursuant to the Joint Travel Regulations (JTR) for travel
expenses incurred by employees performing temporary duty (TDY) in high
rate geographical area (HRGA) locations and instead the Respondent
provided reimbursement at rates less than the maximum amounts allowable
pursuant to the JTR without first notifying AFGE and providing it an
opportunity to bargain collectively concerning the procedures to be
utilized in implementing such change and the impact of such change on
adversely affected employees.
Respondent's answer denied that the acts and conduct complained of
regarding such reimbursements constituted an unfair labor practice under
the Statute. Among other things, Respondent asserted that the
determination of rates approved or paid were not made on behalf of
Respondent, but rather were approved or paid by an agent of the U.S.
Treasury Department.
A hearing was held at Warner Robins, Georgia. The Respondent,
Charging Party, and the General Counsel were represented by counsel and
afforded full opportunity to be heard, adduce relevant evidence, examine
and cross-examine witnesses, and file post-hearing briefs. Based on the
entire record, /3/ including the stipulations offered and my observation
of the witnesses and their demeanor, I make the following findings of
fact, conclusions of law, and recommendations.
Findings of Fact
The WR-ACL is one of five air logistics centers of the Air Force
Logistics Command, located at Wright-Patterson Air Force Base, Dayton,
Ohio. (Tr. 16). The WR-ALC Accounting and Finance Office is a part of
the WR-ALC base complex and is serviced by other WR-ALC service
organizations. (Tr. 18-19). There are approximately 225 to 250
civilian employees in the Accounting and Finance Office. (Tr. 21 and
57). The Accounting and Finance Office consists of a number of branches
including the Pay and Travel Branch whose mission, in pertinent part, is
to process travel voucher expense claims (travel claims), submitted by,
inter alios, Union bargaining unit employees. (Tr. 20) /4/ Lieutenant
Colonel Michael Wilder is the WR-ALC Accounting and Finance Officer
(AFO), in command of the Accounting and Finance Office. (Tr. 16 and
55). Lieutenant Colonel Wilder's second in command is Edward C.
Hilliard who is the Deputy AFO. (Tr. 15 and 21).
The AFO and Deputy AFO are subject to the direction and control of
the Respondent in connection with managing the accounting and finance
programs and operations. With respect to these matters as well as the
disbursement of funds, their work is guided by a large variety of laws,
regulations, policy directives and procedural manuals issued by higher
headquarters and precedent decisions by specialized agencies.
Pursuant to 31 U.S.C. Section 3321(c) the head of each of the
military Departments of the Department of Defense designates personnel
of the agency as disbursing officials to disburse public money available
for expenditure by the agency. Air Force Regulation 177-101(c2),
Chapter 6 provides for the appointment of an AFO by a deputy commander
for resource management or base commander and for actions that must be
taken before the AFO takes up disbursing duties. These include the
submission of official signatures to the Treasurer of the United States
and the assignment by the Treasury Department, at the request of the Air
Force Accounting and Finance Center, of a disbursing station symbol
number. (Joint Exh. 1, Att. 2). The AFOs in this matter assumed the
status of disbursing officials in this manner. (Joint Exh. 1, Att.
8-11; Jt. Exhs. 4-6).
Air Force Regulation 177-101, para. 6-13(b) provides that the AFO "is
an agent of the U.S. Treasury Department in the receipt, safeguarding,
and disbursing of cash and issuance of checks; and of the Federal
Reserve System in the receipt, safeguarding, and issuance of U.S.
savings bonds." This regulation states that "AFOs legally remain
pecuniarily liable to the U.S. for all public funds entrusted to their
accounts and for any erroneous or illegal payments they make." (Joint
Exh. 1, Att. 2). Relief from liability for illegal, improper, or
incorrect payments is available to a disbursing official of an agency
only on the initiative of the Comptroller General or written
recommendation of the head of the agency, and only when the Comptroller
General decides that the payment was not the result of bad faith or lack
of reasonable care by the official. 31 U.S.C. Section 3527(c). Losses
or deficiencies within the Air Force are investigated and
recommendations for relief are initially considered within the Air Force
command structure. (Joint Exh. 1, Att. 2, Chapter 11). AFO's receive
broad, general guidelines from the Air Logistics Command, the Air Force
Accounting and Finance Center, and the Inspector General. /5/ However,
in determining the propriety of any specific payment, no one in the
chain of command can direct them to make a payment of over $25.00 which
they do not feel is proper. AFOs may request a decision from the
Comptroller General on a question involving a voucher presented for
payment. 31 U.S.C. Section 3529. The request is submitted through Air
Force channels. Reviewing authority may disagree with the propriety of
submitting the request, but if the reasons given are not acceptable to
the AFO, the AFO cannot be deprived of the right to submit the question
to the Comptroller General for decision. (Joint Exh. 1, Att. 2 and 3,
Chapter 12 and 16; Tr. 29; see B-192246, January 8, 1979).
The Joint Travel Regulation (JTR) and various Air Force Regulations
(AFR's), pertain to the processing of travel claims. (Joint Exh. 1, p.
1, Att. 1, 2 and 3). Among these regulations is JTR, par. C1058-1 which
provides, in pertinent part, as follows:
A traveler on official business (permanent duty travel or
temporary duty travel) will exercise the same care in incurring
expenses and accomplishing a mission that a person would exercise
if traveling on personal business. Excess costs, circuitous
routes, delays or luxurious accommodations unnecessary or
unjustified in the performance of a mission are not considered
acceptable as exercising prudence. (Joint Exh. 1, p. 2).
This "prudent and necessary standard" is the source of authority upon
which the AFO and/or Deputy AFO review the reasonableness of travel
claims submitted by bargaining unit employees involving HRGA which do
not otherwise exceed the limits for particular cities established in the
JTR at Appendix E. The AFO and Deputy AFO are personally responsible
for the approval, disapproval, or other determinations concerning the
payment of travel claims. However, in processing travel claims, the
application of the prudent and necessary standard has been ministerially
delegated to subordinate staff personnel in the WR-ALC Accounting and
Finance Office. The discretion used in applying the standard is
exercised only by the AFO and the Deputy AFO. With regard to travel
voucher expense claims resulting in a disallowance of actual expenses by
the AFO and/or the Deputy AFO, WR-ALC employees, including Union
bargaining unit employees, have the right to appeal any disallowance
determination to higher command levels for recommendation and ultimately
to the Comptroller General for a decision; said appeal procedure is
commonly referred to as the "doubtful claims" procedure. (Joint Exh. 1,
p. 2-3).
The Air Logistics Center (ALC) and the Air Force Accounting and
Finance Center (AFAFC), Lowry Air Force Base, Colorado, periodically
issue messages to Air Force AFO's including the WR-ALC AFO concerning
the application of the prudent and necessary standard. (Joint Exh. 2,
p. 3, 4 and 5, Att. 3, 4 and 5). In fact, the prudent and necessary
standard was the focus of attention within the Air Force as a part of
the Air Force campaign against fraud, waste and abuse. (Joint Exh. 2,
p. 2, 3, 4 and 7, Att. 2, 3, 4 and 7; and 3; Tr. 48-49).
Specifically, Air Force AFO's within the ALC including the WR-ALC AFO
and Deputy AFO, were encouraged by both the ALC and the AFAFC to more
closely monitor the application of the prudent and necessary standard as
a means to comply with the campaign. For example, as early as January
7, 1983, the ALC Chief of Staff, Major General William J. Kelly sent a
memorandum to the WR-ALC stating, inter alia, that "Administration of
travel allowances is a Command responsibility" and further encouraging
the closer scrutiny of travel claims. The memorandum ordered all travel
orders issuing/approving officials to review and sign travel vouchers
prior to submission to the AFO for final payment. A travel claim review
guide was attached to facilitate the review process. The four page
guide offered broad guidelines on all expense items. It stated, "The
reviewer should be concerned with the reasonableness of amounts claimed.
Accounting and Finance personnel will make determinations concerning
propriety of payment." (Joint Exh. 3; Tr. 24). Also, the WR-ALC
Accounting and Finance Office received a message from the AFAFC dated
September 8, 1983, encourageing the recognition of abuses in expending
Government funds and offering general guidelines for use in establishing
the reasonableness of travel claims. General guidelines were offered
for examining meal, lodging, transportation, and miscellaneous expense
claims. (Joint Exh. 2, p. 3, Att. 3).
On or about October 11, 1983, the WR-ALC AFO received another message
from AFAFC. The message stated that specific guidelines for determining
the reasonableness of expenses would not be issued; that AFOs were
expected to operate under the present broad guidelines; and that the
facts of each case should be analyzed and additional clarification or
advice should be sought from the traveler, supervisor, staff judge
advocate, or higher command as needed. (Joint Exh. 2, Att. 4).
As a result of this Air Force campaign to combat fraud, waste and
abuse, including the correspondence received by the WR-ALC Accounting
and Finance Office through Air Force channels, and as a result of talks
with WR-ALC subordinates, the AFO and/or Deputy AFO determined, in or
about early October 1983, that it had to have some guidelines, some kind
of procedures to follow in determining what is reasonable and prudent.
The AFO secured what it thought was a good guide, the Runzheimer
Meal-Lodging Cost Index and decided to begin a process of stricter
scrutiny of travel claims to HRGA for all employees, including Union
bargaining unit employees. (Joint Exh. 1, par. 4; Tr. 48-50). Thus,
on or about October 7, 1983, Colonel Gary Bowman, WR-ALC Comptroller,
issued a memorandum to all WR-ALC "Directors, Staff officers, and Tenant
Commanders" announcing this action. (Joint Exh. 2, p. 2, Att. 2; Tr.
62). There is no record evidence that this memorandum was sent to the
Union.
On or about October 21, 1983, the AFO and/or the Deputy AFO at
WR-ALC, with regard to the application of the "prudent and necessary"
standard, implemented the decision and began a process of stricter
scrutiny of HRGA travel voucher actual expense claims submitted by
WR-ALC employees, including Union bargaining unit employees. Respondent
did not notify any representative of either AFGE Local 987, AFGE Council
214 of the National Office AFGE prior to these actions. (Joint Exh. 1).
Prior to the actions of the AFO and/or the Deputy AFO at WR-ALC on or
about October 21, 1983, there are no travel voucher actual expense
claims involving a Union bargaining unit employee on travel to a HRGA
wherein a claimed actual expense was disallowed, as the process of the
application of stricter scrutiny pursuant to the prudent and necessary
standard described above, was not exercised by the AFO and/or Deputy AFO
prior to on or about October 21, 1983 (Joint Exh. 1). Travelers prior
to, and on and after October 21, 1983, were required to certify that
their claimed expenses were actual and necessary. (Joint Exh. 7, DD
Form 1351-3). The voucher was subject to organizational review by
travel approving officials. The voucher was then examined by the AFO
and/or Deputy AFO to determine that the claim was properly supported by
documentation and was legal and valid in accordance with the JTR and
other regulations. More or less what the travelers were claiming was
what was being paid. /6/ (Tr. 47-48).
As part of the stricter scrutiny process, on or about October 21,
1983, the AFO and/or Deputy AFO, with regard to travel claims of, inter
alios, Union bargaining unit employees, began using a standard
reimbursement rate or limit to be applied to all travel claims involving
HRGA based on the Runzheimer Meal-Lodging Cost Index. Runzheimer's, in
general, sets forth average meal (breakfast, lunch and dinner) and
lodging costs for U.S. cities. This initial use of Runzheimer's, for
the first time, as an absolute standard reimbursement rate, resulted in
the disallowance of portions of claims submitted by Union bargaining
unit employees. (Tr. 24-25 and 45-46, 49; Joint Exh. 2, p. 12, Att.
12).
Shortly after the implementation of this change involving the
utilization of Runzheimer's, however, the WR-ALC Labor Relations Officer
and a representative from the WR-ALC Staff Judge Advocates Office,
visited the Deputy AFO and told him that it was their opinion he could
not use Runzheimer's in the manner he was using it, i.e. setting
standard reimbursement rates per city. Thereafter, the Deputy AFO
discussed the use of Runzheimer's with ALC and AFAFC personnel. They
then discontinued the use of Runzheimer's in the manner in which he had
been applying the index since on or about October 21, 1983. /7/ This
initial use of Runzheimer's, according to the uncontested testimony of
the Deputy AFO, lasted a very short time -- about a week. (Tr. 24-27).
After the AFO and Deputy AFO discontinued using Runzheimer's as an
absolute limit for reimbursements, they began using Runzheimer as only a
guide as part of the process of giving stricter scrutiny to travel
claims. Other scources also considered as guides in making these
determinations as to those expenses which would be deemed reasonable in
certain locations were area menus, discussions with travelers, and
discussions with commanders in the various locations. (Tr. 40-41,
46-47). They continued as before to also examine the voucher in light
of the documentation provided and the applicable policies and
regulations. (Tr. 47-48). Upon discontinuance of the use of
Runzheimer's in the ininital manner in which it had been used, the
travel claims of bargaining unit employees who had been reviewed
pursuant to Runzheimer's were recomputed by the AFO and/or Deputy AFO.
This resulted in some lesser disallowances than had been determined
under the previous manner in which the Runzheimer index had been used.
(Tr. 24-26).
Subsequent to October 21, 1983, there were 111 travel voucher actual
expense claims submitted by bargaining unit employees to which the
following occurred: The AFO and/or Deputy AFO applied the stricter
scrutiny review process described above. There were 5 travel vouchers
where no actual expense claims were disallowed. There were 106 travel
vouchers where actual expense claims were disallowed. Subsequent to the
disallowance of certain actual expense claims, 22 Union bargaining unit
employees filed a request with the AFO and/or the Deputy AFO to
reconsider the disallowed expense claim pursuant to the "doubtful claim"
procedures. As a result, 6 filings were subsequently withdrawn, 5
filings resulted in a reduction of the initial disallowance by the AFO
and/or the Deputy AFO, and 11 filings resulted in the AFO and/or Deputy
AFO upholding his initial disallowance determination. Of the 11 filings
which resulted in the initial disallowance of the AFO and/or Deputy AFO
being upheld by the AFO and/or Deputy AFO, all the 11 filings were sent
to the AFAFC recommended by the AFAFC with regard to the AFO's and/or
Deputy AFO's determination. None of the doubtful claims have been
appealed by the 11 employees to the Comptroller General for decision.
The total amount of actual expenses claimed involving the 111 travel
vouchers was $490,414.34. The total amount of disallowed actual
expenses claimed in the 106 travel vouchers which involved an initial
disallowance by the AFO and/or Deputy AFO was $60,804.61. The total
amount of disallowed actual expenses claimed in the 5 travel vouchers
which involved a reduction in the initial disallowance by the AFO and/or
Deputy AFO pursuant to the doubtful claims procedure was $242.90.
Therefore, the net total amount disallowed was $60,561.71.
With regard to the Union bargaining unit employees who were
disallowed actual expense claims, notification of these disallowance
determinations was sent by the office of the AFO and/or the Deputy AFO
to the WR-ALC duty organization management and/or supervisory officials
of some of the employees whose claims were disallowed. As a result of
these notifications, some of the management and/or supervisory officials
made independent inquiries into the circumstances of the disallowances
and as a result at least three bargaining unit employees received oral
admonishments which were annotated in the employees' AF Form 971 (a
supervisor's record of an employee).
For an approximate four month period subsequent to October 21, 1983,
there were about 10,752 vouchers submitted by bargaining unit employees
at WR-ALC involving travel to both HRGA and non-HRGA.
As of February 5, 1984, and until September 30, 1985, a "flat rate
per diem" test experiment is being conducted within the Department of
the Air Force, including WR-ALC. As a result of this experiment, with
regard to travel to HRGA incurred by WR-ALC employees, including Union
bargaining unit employees, after February 5, 1984, the prudent and
necessary standard, pursuant to an amendment to the JTR, is not
applicable to claims for actual travel expenses. Thus, with regard to
travel incurred by WR-ALC employees, including Union bargaining unit
employees, after February 5, 1984, set forth in travel voucher expense
claims processed by the office of the AFO and/or the Deputy AFO at
WR-ALC after February 5, 1984, the stricter scrutiny application of the
prudent and necessary standard has not been applied to actual expenses.
However, with regard to travel incurred by WR-ALC employees, including
Union bargaining unit employees, prior to February 5, 1984, set forth in
travel voucher expense claims processed by the office of the AFO and/or
the Deputy AFO at WR-ALC after February 5, 1984, the stricter scrutiny
application of the prudent and necessary standard is applied to Union
bargaining unit employees.
Discussion, Conclusions, and Recommendations
The General Counsel contends that the actions of the WR-ALC AFO
and/or Deputy AFO in changing the method of reviewing travel cliams
affecting bargaining unit employees without prior notice to the
exclusive representative violated sections 7116(a)(1) and (5) of the
Statute. The General Counsel asserts that the AFO and Deputy AFO are
agents of Respondent, and that the subject travel expense claims are not
excluded from those matters subject to collective bargaining pursuant to
section 7103(a)(14)(c) as being "specficially provided for by Federal
statute."
Respondent defends on the basis that the actions of the AFOs
resulting in the application of stricter scrutiny and the concomitant
disallowances of actual travel expense claims submitted to them by
employees are not attributable to Respondent. Respondent claims that
the AFOs in this capacity answer only to the Department of the Treasury
and to the Comptroller General and not to the Respondent agency.
Respondent also asserts that matters involving the approval,
disapproval, or other determinations regarding disbursements to
employees for actual travel expense claims are not a condition of
employment within the meaning of section 7103(a)(14) as such matters are
specifically provided for by Federal statute and, therefore, do not form
a basis for invoking the right to engage in collective bargaining.
Finally, Respondent contends that the actions of the AFOs was not a
change requiring bargaining as the agency has always been obligated to
make case-by-case determinations in each instance under the same
standard, and the only change was in the AFOs ability to make more
precise determinations.
The change established and implemented by the AFOs in October 1983,
was not merely more precise determinations of what actual expense claims
were "prudent and necessary" on a case-by-case as contended by
Respondent. Rather, the record reflects that the change was in the AFOs
establishment and implementation of overall guidelines by which "prudent
and necessary" would be determined in each case. First, the AFOs
adopted Runzheimer's Meal-Lodging Cost Index as an absolute limit for
reimbursements. Then, when Runzheimer's was abandoned as the absolute
limit for reimbursements after about a week, Runzheimer's was used along
with area menus, discussions with travelers, and discussions with area
commanders in various locations as guidelines for determining whether
such claims were "prudent and necessary." The change resulted in an
impact and a reasonably foreseeable impact on bargaining unit employees
inasmuch as out of 111 actual expense claims submitted thereafter, 106
had actual expense claims disallowed whereas no claimed actual expenses
for travel to HRGA were disallowed under the "prudent and necessary"
standard of review used prior to the change. There is no suggestion,
either prior to or after the change, that the actual expenses claimed
were not actually incurred by employees. As noted, the change was in
the guidelines used and evaluation thereunder, the method of review, of
whether such incurred expenses were "prudent and necessary." This strict
scrutiny of travel claims under the process outlined represented a
significant shift from past practice. Cf. New Mexico Air National
Guard, Department of Military Affairs, Office of the Adjutant General,
Sante Fe, New Mexico, 4 A/SLMR 176 (1974).
The actions of the AFOs in this case are attributable to Respondent
and not to the Department of the Treasury and the Comptroller General,
as contended by Respondent. The AFOs were appointed as disbursing
officers by the Respondent pursuant to 31 U.S.C. Section 3321 and Air
Force Regulation 177-101. The submission of official signatures to the
Treasury of the United States and the assignment by the Treasury
Department, at the request of higher command, of a disbursing station
symbol number were ministerial acts connected with the setting up of the
account with the Treasury. It permitted the AFOs to disburse public
money by cash or check available for expenditure by the agency and held
by the Treasury Department as the repository of funds. There is no
evidence that the Treasury Department as controls how the funds are
used, or at any time, attempted to control the use of Respondent's funds
in the travel area. There is no link between the Department of the
Treasury and the actions of the AFOs on or about October 21, 1983 in
changing the guidelines by which reimbursement of travel claims would be
determined.
The AFOs undertook the change at issue as a result of higher command
encouragement to combat fraud, waste, and abuse. In fact, as discussed
in more detail infra, paragraph 1 - 8.3b of the Federal Travel
Regulations requires that "(a)gencies shall ensure that travel on actual
subsistence basis is properly administered and shall take necessary
action to prevent abuse." The AFOs, in changing the guidelines by which
reimbursement of travel cliams would be determined, were acting as
management officials within the meaning of section 7103(a)(11) of the
Statute and as agents of Respondent. It is also noted that Respondent,
through the comptroller, sanctioned the change by issuing a memorandum,
drafted by the AFOs, to all directors, staff officers, and tenant
commanders on the base.
The next issue is Respondent's contention that a determination
regarding disbursements to employees for actual travel expense claims is
not a condition of employment within the meaning of section 7103(a)(14)
of the Statute. /8/ as such matters are specifically provided by
Federal statute and, therefore, do not form a basis for collective
bargaining. It is noted that under Section 5 U.S.C. Section 5702(c) the
Administrator of General Services may prescribe conditions by
regulations under which an employee may be reimbursed for "actual and
necessary expenses" for travel to a high rate geographical areas in an
amount not to exceed the maximum rate prescribed. Within that maximum,
a Department of Defense employee's reimbursement is subject to the
"prudent and necessary" general limitations set out in the Joint Travel
Regulations, par. C1058-1. See also Federal Travel Regulations (FTR)
para. 1-1.3. The agency's responsibility for the authorization is
outlined in paragraph 1-8.3b of the FTR as follows:
b. Review and administrative controls. Heads of agencies
shall establish necessary administrative arrangements for an
appropriate review of the justification for travel on the actual
subsistence expense basis and of the expenses claimed by a
traveler to determine whether they are allowable subsistence
expenses and were necessarily incurred in connection with the
specific travel assignment. Agencies shall ensure that travel on
an actual subsistence expense basis is properly administered and
shall take necessary action to prevent abuses.
The Comptroller General has held that this regulation serves a dual
function. It requires an agency determination of reasonableness of
actual subsistence expenses. /9/ and it gives the agency authority to
issue written guidelines to serve as a basis for an appropriate review
of an employee's expenses. Matter of Davis, B-197576, September 8, 1980
and Matter of Kephard, B-186078, October 12, 1976. The Comptroller
General has observed that such guidelines can benefit both the traveler
and the approving official. The authority of an AFO to issue guidelines
pursuant to this regulation prior to issuance of an agency-wide policy
has also been sustained. Matter of R. Edward Palmer, B-203762, 62 Comp.
Gen. 88 (1982).
Accordingly, since the Respondent clearly has discretion to issue
guidelines for the benefit of both the traveler and the approving
official to serve as a basis for review of the reasonableness of an
employee's expenses, the matter at issue is not specifically provided by
federal statute. See Legislative History of the Federal Service
Labor-Management Relations Statute, Title VII of the Civil Service
Reform Act of 1978, 96th Cong., 1st Sess., Committee Print No. 96-7
(1979), p. 956-957.
Respondent was required to bargain to the extent of its discretion
prior to establishing and implementing a change in the guidelines used
for review of employee actual travel expense claims. Cf. National
Treasury Employees Union, Chapter 6 and Internal Revenue Service, New
Orleans, District, 3 FLRA 748 (1982); March Air Force Base, Riverside,
California, 13 FLRA No. 44, 13 FLRA 255 (1983) at 260; Boston District
Recruiting Command, Boston, Massachusetts, 15 FLRA No. 142, 15 FLRA 720
(1984) at 723-724. See also National Treasury Employees Union and NTEU,
Chapter 208, 13 FLRA No. 13, 13 FLRA 60 (1983) (proposal concerning
travel status which would not require disbursements which would be
inconsistent with applicable regulations would be within the duty to
bargain). The General Counsel alleged a failure to bargain on the
impact and implementation of such change. Respondent's failure to do so
in the circumstances of this case violated section 7116(a)(1) and (5) of
the Statute, as alleged. Internal Revenue Service, Washington, D.C., 4
FLRA 488 (1980); Department of Health and Human Services, Social
Security Administration, Region VI, 10 FLRA 26 (1982); U.S. Department
of the Treasury, Internal Revenue Service, Washington, D.C., Case No.
53-CA-2751, ALJDR 20 (1983).
The General Counsel requests as an appropriate remedy that employees
suffering disallowances be made whole, that any recorded admonishments
emanating from the disallowances be expunged, a return to the status quo
with regard to the processing of any travel claims for travel during the
period from October 21, 1983 to February 5, 1984, and the posting of an
appropriate notice.
It would not be appropriate to order that all disallowed expenses
automatically be paid or that all admonishments automatically be
expunged. Disbursements must be made consistent with applicable
regulations and in accordance with the advice/appeal rights of both
employees and the AFOs. However, balancing the nature and circumstances
of the violation against the degree of disruption in government
operations that would be caused by a status quo ante remedy, and taking
into consideration the various factors set forth in Federal Correctional
Institution, 8 FLRA No. 111 (1982), it is concluded that the status quo
ante remedy requested will best effectuate the purposes and policies of
the Statue. All bargaining unit employees who traveled during the
period from October 21, 1983 to February 5, 1984, are entitled to have
their travel claims considered under the standards existing prior to
October 21, 1983 and without regard to the additional guidelines
implemented at that time. There is no indication in the record that the
prior standards for review were illegal or resulted in disbursements
which violated applicable regulations. However, in the event there is
any question that expenses were not allowable under the standards then
in effect, both the AFOs and the employees will be able to exercise any
advice/appeal rights consistent with applicable law or regualtion.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
Order
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Warner Robins Air Logistics Center
(AFLC), Robins Air Force Base, Georgia shall:
1. Cease and desist from:
(a) Changing the guidelines for review of employee actual
travel expense claims without first affording the American
Federation of Government Employees, AFL-CIO, Local 987, notice and
an opportunity to bargain consonant with the obligations imposed
by the Statute.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Notify the American Federation of Government Employees,
AFL-CIO, Local 987, of any proposed change in the guidelines used
for review of employee actual travel expense claims and, upon
request, negotiate in good faith on the proposal to the extent
consonant with the obligations imposed by the Statute.
(b) Examine each appropriate voucher submitted by any employee
represented by the American Federation of Government Employees,
AFL-CIO, Local 987, for actual expenses incurred for travel to
high rate geographical areas during the period from October 21,
1983 to February 5, 1984, under the standards and guidelines in
effect prior to October 21, 1983, and remunerate said employee
accordingly consistent with applicable law and regulation. In the
event any employee was given a recorded admonishment for
disallowed expenses which should have been allowed under the
standards and guidelines in effect prior to October 21, 1983,
expunge any such admonishment and notify the employee accordingly.
(c) Post at its facilities copies of the attached Notice marked
"Appendix" on the forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the Commander and
shall be posted and maintained by him for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily
posted. The Commander shall take reasonable steps to insure that
such notices are not altered, or covered by any other material.
(d) Pursuant to 5 C.F.R. section 2423.30 notify the Regional
Director, Region IV, Federal Labor Relations Authority, Atlanta,
Georgia, in writing, within 30 days from the date of this order,
as to what steps have been taken to comply herewith.
/s/ GARVIN LEE OLIVER
Administrative Law Judge
Dated: December 18, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The record reveals that on February 5, 1984, a "flat rate per
diem" test was begun within the Department of the Air Force, including
the Warner Robins Air Logistics Center, and that as of that date the
unilaterally imposed guidelines and method of evaluation which gave rise
to the complaint in this case were discontinued. Thus, the Judge found
the new guidelines and method were not applied to claims for actual
travel expenses after that date.
(2) As stated by the Judge, there is no indication in the record that
the prior standards for review were illegal or resulted in disbursements
which violated applicable regulations.
(3) Counsel for the General Counsel's unopposed motion to correct the
transcript is granted; the transcript is hereby corrected as set forth
therein.
(4) At all times material herein, the American Federation of
Government Employees, hereinafter referred to as the AFGE, was the
exclusive representative of certain employees of Respondent in an ALC
wide consolidated bargaining unit described in a collective bargaining
agreement between AFGE, Council 214 and the ALC. (G.C. Exhs. 1(c) and
(d); Joint Exh. 2, paragraph 1, Attachment 1).
(5) Lt. Col. Wilder also testified that he received guidance from the
Treasury Department. (Tr. 58). However, unlike the case of the other
sources cited, there is no relevant documentary evidence or testimony to
corroborate Lt. Col. Wilder's self-serving declaration concerning the
alleged Department of Treasury guidance.
(6) For the approximate two year period prior to October 21, 1983,
there were about 66,424 vouchers submitted by bargaining unit employees
at WR-ALC involving travel to both HRGA and non-HRGA. There were about
12,062 such vouchers filed in the four month period prior to October 21,
1983.
(7) Subsequently, by message dated January 9, 1984 the AFAFC advised,
inter alia, the WR-ALC A&FO that the use by some AFOs of Runzheimer's
Index and possibly other publications as the basis for determining and
limiting meal and laundry reimbursement rates was in direct violation of
the JTRs and must be discontinued. AFAFC stated that Runzheimer's may
only be used as a guide in determining the reasonableness of claimed
expenses, and the AFOs may not arbitrarily set a standard reimbursement
rate to be applied against all vouchers. (J. Exh. 2, Att. 5).
(8) Section 7103(a)(14) privides as follows:
"(14) 'conditions of employment' means personnel policies,
practices, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions, except that such term
does not include policies, practices, and matters -- "
(9) The Comptroller General has held that he will overturn the
agency's initial determination of reasonableness only where the evidence
results in a finding that the agency's determination was clearly
erroneous, arbitrary, or capricious. Matter of Charles B. Boucher,
B-213021 (May 2, 1984).
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT change the guidelines for review of employee actual
travel expense claims without first affording the American Federation of
Government Employees, AFL-CIO, Local 987, notice and an opportunity to
bargain consonant with the obligations imposed by the Statute.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, Local 987, of any proposed change in the guidelines used for
review of employee actual travel expense claims and, upon request,
negotiate in good faith on the proposal to the extent consonant with the
obligations imposed by the Statute.
WE WILL examine each appropriate voucher submitted by any employee
represented by the American Federation of Government Employees, AFL-CIO,
Local 987, for actual expenses incurred for travel to high rate
geographical areas during the period from October 21, 1983 to February
5, 1984, under the standards and guidelines in effect prior to October
21, 1983, and remunerate said employee accordingly consistent with
applicable law and regulation. In the event any employee was given a
recorded admonishment for disallowed expenses which should have been
allowed under the standards and guidelines in effect prior to October
21, 1983, we will expunge any such admonishment and notify the employee
accordingly.
(Agency or Activity)
Dated:
By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region IV,
whose address is: 1776 Peachtree Street, N.W., Suite 501, North Wing,
Atlanta, Georgia 30309 and whose telephone number is: (404) 881-2324,
FTS: 8-257-2324.