36:0168(20)NG - - NAGE Local R12-40 and Federal Union of Scientists and Engineers, Local R12-198 and Navy, Naval Ship Weapon Systems Engineering Station, Port Hueneme, CA - - 1990 FLRAdec NG - - v36 p168
[ v36 p168 ]
The decision of the Authority follows:
36 FLRA No. 20
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
FEDERAL UNION OF SCIENTISTS AND ENGINEERS
U.S. DEPARTMENT OF THE NAVY
NAVAL SHIP WEAPON SYSTEMS ENGINEERING STATION
PORT HUENEME, CALIFORNIA
DECISION AND ORDER ON NEGOTIABILITY ISSUES
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of two proposals regarding travel advances.
Proposal 1 permits employees who do not wish to obtain a travel charge card to receive, upon request, up to an 80 percent travel advance. Proposal 2 allows employees who require an 80 percent travel advance to request the advance when completing the travel order request forms. Proposal 2 also requires the Agency normally to approve such requests. For the following reasons, we find that the proposals are nonnegotiable.
DON [Department of the Navy] Travel Charge Card Program employees not wishing to obtain the charge card would be allowed up to 80% travel advance if requested.
Employees who require a 80% advance for a temporary duty assignment may request same when completing the travel order request form. The employer will normally approve such requests.
A. Positions of the Parties
1. The Agency
The Agency contends that the proposals are nonnegotiable under section 7117(a)(1) and (2) of the Statute because they conflict with a Government-wide regulation and with Agency regulations for which a compelling need exists. Agency's Statement of Position (Agency's Statement) at 2.
The Agency contends that the proposals are nonnegotiable under section 7117(a)(1) of the Statute because they are inconsistent with Office of Management and Budget (OMB) Bulletin No. 88-17, Limiting Travel Advances to Manage Cash More Effectively. The bulletin requires that charge cards be issued to employees designated as "frequent travelers" and that the charge cards be used whenever possible to minimize the need for cash expenditures. The Agency argues that the proposals would excuse employees from the requirement to use the charge cards. The Agency also maintains that OMB Bulletin No. 88-17 is a Government-wide rule or regulation within the meaning of section 7117(a)(1). Id.
The Agency contends that negotiations on the proposals are also barred by section 7117(a)(2) of the Statute because the proposals conflict with Agency regulations for which a compelling need exists. The Agency argues that its regulations--Department of Defense Standard Travel Advance Policy of September 30, 1988; Department of the Navy Requirements for Military Temporary Additional Duty (TAD) and Civilian Temporary Duty (TDY) Orders Under the DON Standard Travel Advance Policy of December 30, 1988; Joint Travel Regulations Change 283 of May 1, 1989--implement the mandate of OMB Bulletin No. 88-17 in a nondiscretionary manner and, therefore, that those regulations satisfy the compelling need criterion set forth in section 2424.11(c) of the Authority's Rules. Agency's Statement at 3. The Agency's implementing regulations provide that travel advances will be limited to only estimated out-of-pocket expenses (such as meals, incidental expenses, and miscellaneous expenses for taxis, tolls, parking, etc.). Agency's Statement at 3-4.
2. The Union
The Union states that the intent of Proposal 1 is to make the travel card program voluntary. Proposal 2 is intended to continue the previous policy and practice of advancing unit employees the maximum allowable travel advance. Union's Petition for Review at 7. The Union asserts that the purpose of the proposals is to relieve unit employees of the burdens placed on them by the travel card program and to provide alternatives for those employees who do not wish to participate in that program. Union's Response to Agency's Statement of Position (Union's Response) at 3.
The Union concedes that OMB Bulletin No. 88-17 is a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. However, the Union contends that Proposals 1 and 2 are not inconsistent with the bulletin. The Union also contends that the Agency's implementing policy and regulations are not mandated by the bulletin. The Union notes that the Agency bears the burden of proving that a compelling need exists for its regulations (Union's Petition for Review at 8) and argues that the manner of the Agency's implementation of the credit card program is discretionary. Union's Response at 2.
B. Analysis and Conclusions
We conclude that Proposals 1 and 2 are inconsistent with Government-wide regulations and are, therefore, nonnegotiable under section 7117(a)(1) of the Statute.
1. OMB Bulletin No. 88-17
Under section 7117(a)(1) of the Statute, the duty to bargain does not extend to proposals which are inconsistent with a Government-wide regulation.
The Agency and the Union agree that OMB Bulletin No. 88-17 is a Government-wide regulation. The parties disagree as to whether the proposals conflict with the bulletin. However, we need not determine whether a conflict exists between the bulletin and the proposals. OMB Bulletin No. 88-17, paragraph 13 states as follows: "Sunset Date. This Bulletin will expire on July 31, 1989." (Emphasis in original.) Consequently, OMB Bulletin No. 88-17 has expired and is no longer applicable. Because OMB Bulletin No. 88-17 is no longer in effect, it cannot serve as a bar to negotiations on Proposals 1 and 2 under section 7117(a)(1) of the Statute. See International Brotherhood of Teamsters, Truck Drivers, Warehousemen & Helpers of Jacksonville, Local Union 512 and Department of the Navy, Consolidated Civilian Personnel, Jacksonville, Florida, 32 FLRA 1200, 1204 (1988) (a regulation relied on by the agency had been removed from the Code of Federal Regulations and was no longer applicable as a basis for the agency's position).
2. Federal Travel Regulations
In order to implement OMB Bulletin 88-17, the General Services Administration issued Federal Property Management Regulation (FPMR) Temporary Regulation A-34, Limiting Travel Advances to Manage Cash More Effectively. 54 Fed. Reg. 14652 (1989). That regulation has been permanently codified at 41 C.F.R. part 301-10. 55 Fed. Reg. 11018 (1990). Chapter 301 applies to official travel of civilian employees of Government agencies, including civilian employees of the Department of Defense. 41 C.F.R. § 301-1.2(a). Travel advances for Federal employees are governed by the Federal Travel Regulations, which are set forth in title 41 of the Code of Federal Regulations. See, for example, Travel and Transportation Expense Payment System Using Contractor-Issued Charge Cards, Centrally Billed Accounts, and Travelers Checks, 41 C.F.R. Subtitle F, 54 Fed. Reg. 20360, 48611 (1989); 41 C.F.R. § 301-10.3, 54 Fed. Reg. 20292 (1989).
The Authority has found that the Federal Travel Regulations are "Government-wide" regulations within the meaning of section 7117(a)(1) of the Statute. American Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446, 447 (1983). See also American Federation of Government Employees, AFL-CIO, Local 3232 and Department of Health and Human Services, Social Security Administration, Region II, 31 FLRA 355, 358-59 (1988). Therefore, to the extent that Proposals 1 and 2 are inconsistent with FPMR Temporary Regulation A-34, they are inconsistent with a Government-wide regulation and are nonnegotiable under section 7117(a)(1) of the Statute.
a. Proposal 1
Proposal 1 allows employees who do not wish to use a charge card to receive up to 80 percent funding for a travel advance, if requested.
FPMR Temporary Regulation A-34 includes limitations on travel advances, but authorizes exceptions to those limitations under certain conditions. However, FPMR Temporary Regulation A-34 also states:
Exception precluded. This exception authority may not be exercised in situations where the employee has elected not to use alternative funding resources made available by the Government, i.e., Government contractor-issued charge cards or traveler's checks. This exception authority may not be exercised for travelers whose Government charge cards have been suspended or revoked because of delinquent payments.
FPMR Temporary Regulation A-34, Paragraph 1-10.3.c.(4).
Paragraph 1-10.3.c.(4) precludes the issuance of travel advances to employees who choose not to use a contractor-issued charge card. Proposal 1 would allow employees who choose not to use charge cards to receive travel advances. Because Proposal 1 would allow travel advances in circumstances where such advances are precluded by FPMR Temporary Regulation A-34, we find that Proposal 1 is inconsistent with an applicable Government-wide regulation and nonnegotiable under section 7117(a)(1) of the Statute.
b. Proposal 2
Proposal 2 allows an employee who requires a travel advance of 80 percent of estimated expenses for a temporary duty assignment to request the advance when completing the travel order request form. The proposal also provides that such requests will normally be approved.
Paragraph 1-10.3.b of FPMR Temporary Regulation A-34 limits the advance of travel funds to those estimated expenses that a traveler is expected to incur in connection with authorized travel which would normally be paid using cash ("cash transaction expenses"). The regulation defines "cash transaction expenses" as those travel expenses that as a general rule cannot be charged and must, therefore, be paid using cash, personal checks, or traveler's checks, including meals and incidental expenses, miscellaneous transportation expenses (such as taxis), gasoline (for use of a privately owned vehicle for official business), and other authorized miscellaneous expenses which cannot be charged using a charge card. The regulation specifically notes that it is assumed that travelers will be able to charge major expenses such as common carrier transportation fares, lodging costs, and rental of automobiles.
The FPMR Temporary Regulation A-34 also contains specific exceptions under which the travel advance limitations would not apply. Those specific exceptions are: (1) situations where the use of a charge card is precluded; (2) situations where issuance of a charge card has been denied; and (3) travel involving an official change of station. FPMR Temporary Regulation A-34, Paragraph 1-10.3.c.(2).
Paragraph 1-10.3.b, with certain specified exceptions, precludes the payment of travel advances for expenses other than "cash transaction expenses." In declaring Proposal 2 nonnegotiable, the Agency maintained that the proposal would require cash advances, upon request, for "major expenses," such as "hotels and rental cars." Agency's letter of March 30, 1989, included in the record as Attachment B to Union's Petition for Review. The Union explained the intent of its proposals as providing travel advances as an alternative for employees who are required to use the contractor-issued card for "major travel expenses." Union Petition for Review at 7. Because the Union does not refute the Agency's construction of the proposal as requiring cash advances for "major travel expenses," such as hotels and rental cars, we interpret Proposal 2 as providing for a travel advance of 80 percent of total estimated expenses, including expenses not covered by the definition of "cash transaction expenses," such as lodging and rental car expenses. Because Proposal 2 would require the payment of travel advances for expenses that are precluded by Paragraph 1-10.3.b, and because Proposal 2 would apply in circumstances other than those set forth in the stated exceptions, we find that Proposal 2 is inconsistent with an applicable Government-wide regulation and nonnegotiable under section 7117(a)(1) of