[ v25 p615 ]
25:0615(48)NG
The decision of the Authority follows:
25 FLRA No. 48
FEDERAL UNION OF SCIENTISTS AND
ENGINEERS, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES, LOCAL R1-144
Union
and
U.S. DEPARTMENT OF NAVY, NAVAL
UNDERWATER SYSTEMS CENTER
Agency
Case No. 0-NG-1138
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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 concerns the negotiability of three
Union proposals. /1/ We find Proposal 1 nonnegotiable and Proposals 2
and 3 negotiable.
II. Proposal 1
The Naval Underwater Systems Center shall be responsible for
personal losses of unit employees due to non-deposit of paychecks
by Electronic Fund Transfer System.
A. Positions of the Parties
As explained by the Union, the intent of its proposal is to require
the Agency to reimburse employees for penalties they incur for
insufficient funds in their accounts as a result of the Agency's failure
to deposit their paychecks. The Union did not file a Reply Brief in
this case.
The Agency contends that in the absence of express statutory
authority, it is prevented from making the expenditures required by the
proposal and, thus, that the proposal is outside the duty to bargain
under section 7117(a)(1) of the Statute.
B. Analysis
The current authorization for the direct deposit of employee
paychecks to financial organizations is contained in 31 U.S.C. Section
3332. There is nothing in the express language of this section, which
was enacted to replace 31 U.S.C. Section 492, or in its legislative
history, indicating that the Government was to be authorized to
reimburse employees for service charges on checks drawn on insufficient
funds where the Government has undertaken but failed to deposit an
employee's paycheck directly with the employee's bank. In this regard,
the Comptroller General, interpreting 31 U.S.C. Section 492, which
preceded Section 3332, held that specific statutory authority is
required to reimburse employees for penalties incurred as a consequence
of an agency's failure to deposit employees' paychecks. In Matter of
Robert G. Raske, Comp. Gen. Decision No. B-22273 (May 7, 1981), an
employee's change of address was processed one pay period earlier than
requested, and as a result the employee incurred $129 in overdraft
charges. Finding no authorization for reimbursement in the statute (31
U.S.C. Section 492) entitling employees to designate a financial
institution to receive their paychecks, the Comptroller General held
that the agency could not reimburse the employee for the penalties.
As noted, there is nothing in the express provisions of the currently
applicable statute, 31 U.S.C. Section 3332, or in its legislative
history, which indicates that Congress sought to provide the specific
authorization lacking in 31 U.S.C. Section 492 for an agency to
reimburse employees for such expenses. Consequently, in the absence of
any demonstration in the record of any statutory authorization for an
agency to reimburse employees for charges incurred as the result of an
agency's failure to deposit employees' paychecks, the Authority finds
that these expenses are the personal responsibility of the employee.
C. Conclusion
For the reason cited in the foregoing analysis, Union Proposal 1 is
outside the duty to bargain under section 7117(a)(1) of the Statute.
III. Proposal 2
Paychecks shall be mailed by Federal mail or guard mail
(internal mail system) to an employee's designated address before
Wednesday noon, payday week.
Proposal 3
Leave and Earnings Statements shall be mailed by Federal mail
or guard mail (internal mail system) to an employee's designated
address.
A. Positions of the Parties
The Union states that the intent of the proposals is to require the
Agency to mail an employee's paycheck and leave and earnings statement
to the address designated by the employee by regular mail or the
Agency's internal mail system, including the employee's work-place
address, if the employee so designates.
The Agency contends that the proposals are nonnegotiable because:
1. The proposals concern the methods and means by which the
Agency performs its work, under section 7106(b)(1) of the Statute.
2. The proposals are inconsistent with an Agency-wide
regulation for which a compelling need exists.
3. The proposals do not involve conditions of employment as
they do not substantially affect bargaining unit employees.
b. Analysis and Conclusion
In the Authority's recently issued Decision and Order on Remand in
Federal Employees Metal Trades Council, AFL-CIO and Department of the
Navy, MareIsland Naval Shipyard, Vallejo, California, 25 FLRA No. 31
(1987), /2/ we reconsidered and reversed the Authority's prior holding
that two proposals permitting newly hired bargaining unit employees to
receive their paychecks at their work addressed involved the methods and
means of performing work and, thus, were negotiable only at the election
of the agency, under section 7106(b)(1) of the Statute. In our decision
on remand we determined that: (1) The manner of paycheck delivery does
not involve the method and means of performing work under section
7106(b)(1) of the Statute; (2) paycheck delivery related principally to
conditions of employment under section 7103(a)(14); (3) a compelling
need does not exist for the Agency's regulation asserted as a bar to
negotiation of the Unions' paycheck delivery proposals; and (4) the
Agency failed to establish that paycheck delivery proposals directly
interfered with management's rights under section 7106(a)(1) to
determine budget and organization or under section 7106(a)(2)(A) and (B)
to assign employees, to assign work or to determine personnel. Thus, we
concluded that the proposals were within the duty to bargain.
The proposals in this case are to the same effect as the proposals in
Mare Island Naval Shipyard. In addition, the Agency raises the same
claims as to their negotiability including the claim that a compelling
need exists for the same Agency regulation. Consequently, for the
reasons stated more fully in Mare Island Naval Shipyard, we conclude
that Proposals 2 and 3 in this case are within the duty to bargain.
IV. Order
The Agency must upon request (or as otherwise agreed to by the
parties) bargain on Proposals 2 and 3. /3/ The Union's petition for
review as to proposal 1 is dismissed.
Issued, Washington, D.C., February 10, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Agency, in its Statement of Position, withdrew its allegation
of nonnegotiability with respect to a fourth proposal. Therefore, the
issue as to this proposal has been rendered moot and will not be
considered further.
(2) This decision was issued after the decision of the U.S. Court of
Appeals for the Ninth Circuit in Federal Employees Metal Trades Council
v. FLRA, 778 F. 2d 1429 (9th Cir. 1985), reversing and remanding Federal
Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare
Island Naval Shipyard, Vallejo, California, 16 FLRA 619 (1984) and
American Federation of Government Employees, Local 1533 and Department
of the Navy, Navy Commissary Store Region, Oakland and Navy Commissary
Store, Alameda, California, 16 FLRA 623 (1984).
(3) In finding Proposals 2 and 3 within the duty to bargain we make
no judgment as to their merits.