26:0284(35)NG - FUSE, NAGE and Navy, Naval Underwater Systems Center, Newport, RI -- 1987 FLRAdec NG

 26 FLRA No. 35
 
 FEDERAL UNION OF SCIENTISTS AND 
 ENGINEERS, NATIONAL ASSOCIATION 
 OF GOVERNMENT EMPLOYEES
 Union
 
 and
 
 DEPARTMENT OF THE NAVY, NAVAL 
 UNDERWATER SYSTEMS CENTER 
 NEWPORT, RHODE ISLAND
 Agency
 
                                            Case No. 0-NG-1036
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed by the Union under section 7105(a)(2)(D) and (E) of the Federal
 Service Labor-Management Relations Statute (the Statute) and presents
 issues concerning the negotiability of the following proposal.  We find
 that the proposal is nonnegotiable.
 
                             II.  The Proposal
 
    The Union proposed that, effective immediately, the Agency use the
 "Runzheimer Meal-Lodging Cost Index," rather than the Agency's Joint
 Travel Regulations (JTRs), to determine the reasonableness of claims for
 meal expenditures by unit employees.  The record shows that the
 Runzheimer Index is an index, published quarterly by an independent
 resource service, that reflects the meal cost experiences of persons
 travelling to specified urban areas of the country.  The text of the
 proposal is included as an Appendix to this decision.
 
                      III.  Positions of the Parties
 
    The Agency, in its original statement of position, argued that the
 proposal is nonnegotiable because it conflicts with paragraph C4611.1 of
 the Agency's JTRs, for which a compelling need exists.  The Agency, in a
 subsequent submission, states that during the pendency of this case
 Congress amended the law under which the Federal Travel Regulations
 (FTRs) are issued and that revised FTRs have been issued.  The Agency
 claims that the proposal is nonnegotiable because it conflicts with the
 new FTRs and with the Agency's new JTRs, which were revised to conform
 with the new FTRs.  In this connection, the Agenct also argues that the
 dispute is moot because the proposal seeks to supersede paragraph
 C4611.1e, which has since been replaced by the new JTRs.
 
    The Union argues in its original submission that the proposal is
 negotiable because there is no compelling need for the JTRs.  In its
 subsequent submission, the Union does not address whether the proposal
 is consistent with the new FTRs or new JTRs.  It argues that the Agency
 should be ordered to negotiate as to the meal costs that should have
 been allowed under its proposal prior to the effective date of the new
 law.  /1/
 
                       IV.  Analysis and Conclusion
 
    As noted by the Agency, during the pendency of this case, Congress
 amended the Travel Expense Act.  Public Law 99-234, 99 Stat. 1756
 (1986), amending 5 U.S.C. Section 5701 et seq.  Pursuant to that
 amendment, the Administrator of the General Services Administration
 (GSA) issued new FTRs.  GSA Bulletin FPMR A-40, Supplement 40, reprinted
 in 51 Fed. Reg. 19,660 (1986).  The Federal Travel Regulations are
 Government-wide regulations within the meaning of section 7117(a)(1) of
 the Statute.  National Treasury Employees Union and Department of the
 Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for
 review filed sub nom. Department of the Treasury, U.S. Customs Service
 v. FLRA, No. 86-1198 (D.C. Cir. March 27, 1986);  National Federation of
 Federal Employees, Local 29 and U.S. Army Engineers District, Kansas
 City, Missouri, 13 FLRA 23 (1983).
 
    Paragraph 1-7.2(a) of the FTRs provides that per diem allowances
 shall not exceed the maximum established by the Administrator.  51 Fed.
 Reg. at 19,662.  Paragraph 1-7.5 provides that the per diem allowance is
 the actual amount for lodgings plus a prescribed allowance for meals,
 the total not to exceed the applicable maximum per diem rate.  Id. at
 19,663.  The FTRs also allow an agency to pay a greater amount due to
 special or unusual circumstances, but in no event may the total exceed a
 further stated maximum (paragraph 1-8.3a(1)).  Id. at 19,670.
 
    The Agency claims, without contradiction by the Union, that the meal
 allowances provided by the Runzheimer Index for travel to some cities
 would exceed the maximum rate established by the FTRs.  Agency
 Supplemental Submission of Position at 4.  Thus, since the basis of
 payment for meal allowances under the proposal is inconsistent with the
 Federal Travel Regulations, the proposal is outside the duty to bargain
 under section 7117(a)(1) of the Statute.  See National Association of
 Agricultural Employees and U.S. Department of Agriculture, Animal and
 Plant Health Inspection Service, 22 FLRA No. 45 (1986) (Proposal 2);
 American Federation of Government Employees, Local 12 and Department of
 Labor, 19 FLRA 161 (1985).
 
    We also reject the Union's request that the Agency be required to
 negotiate as to the meal costs that should have been allowed under its
 proposal prior to the effective date of the new law;  that is, prior to
 January 2, 1986.  While the Runzheimer Index current at the time of the
 proposal may not have conflicted with the FTRs then in effect, the
 proposal before us requires the continued use of the Index, as updated
 quarterly, without regard to whether the amounts the Agency would be
 required to pay would exceed the limitations placed on meal costs by the
 FTRs.  For these reasons, the proposal is nonnegotiable.  /2/
 
                                 V.  Order
 
    The petition for review is dismissed.  Issued, Washington, D.C.,
 March 18, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) We have accepted and considered all submissions of both parties
 in this case.  See 5 C.F.R. Section 2424.8.
 
    (2) In view of our conclusion, it is unnecessary to consider the
 Agency's other contentions as to the nonnegotiability of the proposal.
 
 
                                 APPENDIX
 
                             Union's Proposal
 
    Subj:  Meal Cost Policy
 
    Encl:  (1) Listings of Cities Where Most NUSC TDY is Performed
 Showing Average Meal Costs
 
    1.  This memorandum applies to all employees represented by NAGE
 R1-144.
 
    2.  The Runzheimer Meal-Lodging Cost Index contains authoritative
 data for the audit of reported expenses, establishment of accurate per
 diem allowances and development of policy guidelines for travel
 expenses.  The General Accounting Office approves its use.
 
    3.  Effective immediately, NUSC will use the average individual meal
 cost shown in the Runzheimer Meal-Lodging Cost Index to determine the
 reasonableness of claims for meal expenditures.  Actual expense travel
 claims that exceed the average individual meal cost contained in the
 index may be subject to review by the travel order approving official
 and subject to substantiation by the claimant.
 
    4.  Enclosure (1) shows average meal costs, including a 15% gratuity,
 for cities where most NUSC TDY is performed.  The listing is updated
 quarterly and should be verified at the disbursing or travel office
 periodically.  Employees traveling to areas not shown in enclosure (1)
 can request average meal costs from either disbursing or travel office
 personnel.  If the area to which the employee is traveling is not listed
 in the Runzheimer Meal-Lodging Cost Index the disbursing office will
 determine the average meal cost using an area with a commensurate actual
 expense rate.
 
    5.  This policy is effective for all travel claims submitted for
 travel orders issued on or after this date.
 
    6.  Enclosure (1) will be updated quarterly in accordance with
 Runzheimer listing and published by memorandum for the information of
 NAGE R1-144 employees.