[ v30 p677 ]
The decision of the Authority follows:
30 FLRA NO. 84 30 FLRA 677 (1987) 31 DEC 1987 NATIONAL TREASURY EMPLOYEES UNION Union and FAMILY SUPPORT ADMINISTRATION, DEPARTMENT OF HEALTH AND HUMAN SERVICES Agency Case No. O-NG-1409 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 proposals. We find that the first proposal concerning reimbursement for parking expenses is nonnegotiable because it violates law and regulation. The second proposal regarding relocation expenses is nonnegotiable because it conflicts with the Federal Travel Regulations. The third proposal concerns provision of day care and payment of day care expenses and is negotiable. II. Proposal 1 All employees moved from Rockville to D.C. will be reimbursed for their parking expenses to the extent that they exceed parking costs in Rockville. A. Position of the Parties The Agency argues that this proposal is outside the duty to bargain because it is inconsistent with Federal law and Government-wide regulations. In support, the Agency relies on American Federation of Government Employees, AFL - CIO, council 236 and General Services Administration, 9 FLRA 825 (1982), where the Authority found nonnegotiable a proposal which guaranteed that employees would not suffer financial losses due to increased commuting costs, including higher parking fees. The Union argues that parking fees are a mandatory subject of bargaining. In support, the Union relies on United States Department of the Treasury, Internal Revenue Service, and United States Department of the Treasury, Internal Revenue Service, Houston District and National Treasury Employees Union, and National Treasury Employees Union, Chapter 222, 25 FLRA 843 (1987) and on American Federation of Government Employees, Local 644 AFL - CIO and U.S. Department of Labor, Occupational Safety and Health Administration, 21 FLRA 658 (1986) (Proposals 6 and 11). In addition, the Union claims, without any supportive argument, that this proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. B. Analysis and Conclusion The payment of employee travel expenses is governed by provisions of the Travel Expense Act, specifically 5 U.S.C. 5701-5702, 5704, and 5706-5707, and the Federal Travel Regulations (FTRs), 41 C.F.R. Part 101-7. See National Council of Field Labor Locals, Local 2513 AFGE and U.S., Department of Labor, Employment Standards Administration, Region 2, 29 FLRA 451 (1987). The Comptroller General administers and interprets the Travel Expense Act and its implementing regulations. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 106 (1983); National Treasury Employees Union and Department of the Treasury, U.S. customs Service, 21 FLRA 6, 10 (1986). The Comptroller General has held that absent express statutory or regulatory authorization, the established rule is that Federal employees must bear as personal commuting expenses all costs of transportation, including parking fees, between their residences and their official duty stations. For example, 60 Comp. Gen. 420 (1981). However, under 5 U.S.C. 5704(b) and the FTRs, an employee who is engaged in official business for the Federal Government may be reimbursed for various travel expenses including parking fees. Travel expenses, including parking fees, which are reimbursable are confined to those expenses which are actual and necessary, 5 U.S.C. 5706, and which are essential to the transacting of official business, FTR 1-1.3b. Further, the method of transportation selected for performance of official business must be advantageous to the Government. FTR 1-2.2b. Proposal 1 requires the Agency to reimburse employees for additional parking fees incurred solely due to an office relocation. There is nothing in the record which indicates that employees in this case are required to use their personal vehicles for official Government business. Thus, we find that Proposal 1 would require the Agency to reimburse employees for personal commuting expenses. Consequently, Proposal 1 is inconsistent with the Travel Expense Act and the FTRs and is nonnegotiable. See American Federation of Government Employees, AFL - CIO, Council 236 and General Services Administration, 9 FLRA 825 (1982)(Proposal 3). In reaching this conclusion, we find this case to be distinguishable from the cases cited by the Union. The Charging Party in Internal Revenue Service Houston District was not seeking reimbursement of commuting costs but only the continued availability of free or low cost parking spaces. Occupational Safety and Health Administration also concerned whether the Agency would provide parking spaces for employees. Therefore, neither of these cases concerned the reimbursement of personal parking expenses. Thus, as this proposal is inconsistent with law, it is outside the duty to bargain under section 7117(a)(1) of the Statute. Since section 7106(b)(3) applies only when management exercises one of the reserved rights set out elsewhere in section 7106, it is unnecessary for us to address the Union's claim that this proposal constitutes an appropriate arrangement. See National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, Corps of Engineers, 21 FLRA 228 (1986). III. Proposal 2 Employees who have to commute an additional half hour each way and whose total commuting time is one hour or more each way will be granted relocation expenses. A. Position of the Parties The Agency argues that the proposal is inconsistent with the FTRs and with an agency regulation for which compelling need exists. The Union argues that the FTR gives agencies the discretion to determine when to reimburse employees for relocation of their residences resulting from a change in their official duty stations. According to the Union, this proposal merely provides the criteria for the Agency to make that decision. The union also argues, in general, that this proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. B. Analysis and Conclusion Chapter 2 of the FTRs sets out the general rules whereby employees may be reimbursed for relocation expenses resulting from, among other circumstances, permanent changes in duty stations. Under FTR 2-1.5b, travel and relocation expenses allowed in connection with the employee's relocation of his/her residence "shall be authorized only when the agency determines that the relocation of the employee's residence was incident to the change of official duty station." This section provides that in determining whether to authorize relocation expenses, an agency shall take into account such factors as the difference in the commuting time between the employee's residence and his/her old post of duty at the time of notification of transfer and the commuting time and distance between a proposed new residence and the new post of duty. Further, this section specifically states as follows: Ordinarily, a relocation of residence shall not be considered as incident to a change of official duty station unless the one-way commuting distance from the old residence to the new official station is at least 10 miles greater than from the old residence to the old official station. Even then, circumstances surrounding a particular case (e.g., relative commuting time) may suggest that the move of residence was not incident to the change of official station. Proposal 2, however, expressly requires the Agency to base a determination on whether to grant relocation expenses solely on additional commuting time. Consequently, Proposal 2] conflicts with the FTRs, which previously have been held to be Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. See National Federation of Federal Employees, Local 29 and U.S. Army Engineer District, Kansas City, Missouri, 13 FLRA 23 (1983). Therefore, this proposal is not within the duty to bargain. In view of this conclusion, it is unnecessary to address the Agency's additional claim that a compelling need exists for an Agency regulation. Further, inasmuch as this proposal is nonnegotiable because it is inconsistent with a Government-wide regulation, we do not need to address the Union's argument that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. See Kansas City District, Corps of Engineers, 21 FLRA 228. IV. Proposal 3 Daycare will either be provided or paid for the children of all relocated employees requesting such services. A. Position of the Parties The Agency's sole claim concerning this proposal is that it is nonnegotiable because it conflicts with law. According to the Agency, 20 U.S.C. 2564 requires the Department of Health and Human Services (HHS) to charge appropriate fees for day care services established for the children of its employees. Thus, the Agency argues that because this proposal requires free day care it is inconsistent with 20 U.S.C. 2564. The Union argues that the establishment of day care facilities is negotiable. In support, the Union relies on American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, Washington, D.C., 6 FLRA 423 (1981). The Union also argues that while 20 U.S.C. 2564 provides that the Department of Health and Human Services (HHS) has the right to establish fees to pay for the day care services, it does not state that HHS must charge fees. The Union argues that because donations can be accepted, the center could run by having different employees pay different amounts, thus allowing the possibility that the services be rendered free to some employees. In addition, it argues that because 20 U.S.C. §§ 2564 is silent as to reimbursement for outside day care, the Agency has discretion to bargain on that subject. The Union also claims that this proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. B. Analysis and Conclusion The statute relied upon by the Agency, 20 U.S.C. 2564, provides that the Secretary of HHS is authorized to establish day care facilities for the children of HHS employees. The Secretary is also "authorized to establish or provide for the establishment of appropriate fees and charges to be chargeable against the Department employees or others who are the beneficiaries of services provided by such facilities to pay for the cost of their operation(.)" Furthermore, "(n)o appropriated funds may be used for the equipping or operation of any centers provided under this authority." Thus, it is clear that the Agency may not use appropriated funds to provide free day care in HHS facilities or to reimburse employees for the cost of day care provided at non - HHS facilities. There is nothing in the language of the proposal or in the record which indicates that the Agency would be required to use appropriated funds for day care expenses. Further, the proposal does not specify how free day care for affected employees will be implemented. Although 20 U.S.C. 2564 precludes the Agency from using appropriated funds to operate day care centers, it does not mandate or specify the actual amount that particular employees using the day care services must pay. Rather, the statute leaves the Agency with discretion to determine the appropriate fees. The Agency has discretion to charge employees different amounts or to charge some employees and not others so long as appropriated funds are not used for the operation of the day care facility. To the extent that an agency has discretion over a matter that discretion may be exercised through negotiations. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). We recognize that the establishment of higher fees for some employees so that others may pay nothing may be deemed to be unfair. This argument relates to the merits of the proposal, however, not to its negotiability. Accordingly, this proposal is not inconsistent with 20 U.S.C. 2564. Since the Agency has raised no other claim that this proposal is nonnegotiable, we find that it is within the duty to bargain. In view of this conclusion, it is unnecessary to address the Union's additional arguments concerning this proposal. V. Order The petition for review as to Proposals 1 and 2 is dismissed. The Agency must, upon request, or as otherwise agreed to by the parties, bargain on Proposal 3. 1 Issued, Washington, D.C., December 31, 1987. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 In finding Proposal 3 to be negotiable in part, we make no judgment as to its merits.