47:0750(70)NG - - NAGE Local R1-100 and Navy, Naval Submarine Base New London, Groton, CT - - 1993 FLRAdec NG - - v47 p750
[ v47 p750 ]
The decision of the Authority follows:
47 FLRA No. 70
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
NAVAL SUBMARINE BASE NEW LONDON
DECISION AND ORDER ON NEGOTIABILITY ISSUES
May 27, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of five proposals pertaining to the licensing requirements for employees who must possess a commercial driver's license (CDL) as a condition of employment.
For the following reasons, we find that the proposals are nonnegotiable.
This dispute arose as a result of an Agency memorandum dated September 8, 1992, which reminded unit employees of revisions in the legal requirement for a Connecticut state CDL. The employees who are subject to the memorandum are crane and rigging operators and, according to the Agency, are required as a condition of employment to maintain, at a minimum, a valid Connecticut class B CDL. The Agency memorandum noted that, as a result of a change in Federal law, employees who drive commercial motor vehicles (CMVs) are required, under Connecticut law, to meet additional licensing requirements and to revalidate their current CDLs. The memorandum stated that "[e]ach [e]mployee is responsible to make application to the Connecticut Motor [V]ehicle Department." Petition, Attachment 4, Reference (b). Further, the memorandum stated that each employee was also responsible for "pay[ing] all required fees and submit[ting] to the appropriate testing procedures." Id. Finally, the memorandum stated that "[a]ll [e]mployees are required to have in their possession a valid CDL no later than 30 October 92." Id.
III. Preliminary Issue
The Agency contends that the Union's petition for review "is not ripe for consideration" under the Authority's Rules and Regulations. Statement at 6. The Agency asserts that the Union filed both an unfair labor practice charge and a negotiability appeal, but "ambiguously stated" on its unfair labor practice charge form "that it had not raised this matter in any other procedure, while elsewhere on the same form indicated that it was electing the negotiability procedure in lieu of the [u]nfair [l]abor [p]ractice procedure[.]" Id. at 2. The Agency claims that processing of the Union's petition should be "suspended pending an election of forum." Id. We disagree.
Section 2424.5 of the Authority's Rules and Regulations provides that where a labor organization files an unfair labor practice charge which involves a negotiability issue and also files a petition for review of the same negotiability issue, the Authority and the General Counsel "will not process the unfair labor practice charge and the petition for review simultaneously." In such circumstances, section 2424.5 states that "the labor organization must select under which procedure to proceed" and that "[u]pon selection of one procedure, further action under the other procedure will ordinarily be suspended." Section 2424.4(a)(4) of the Authority's Rules and Regulations provides that the petition for review shall contain notification by the petitioning labor organization whether the negotiability issue is also involved in an unfair labor practice charge that has been filed by the labor organization and is pending before the General Counsel.
On the unfair labor practice charge form, the Union answered "no" to the question of whether it had raised the matter which was the subject of the charge in any other procedure. On that same form, the Union also answered the question as to which procedure it selected, negotiability or unfair labor practice, by checking the blank indicating the selection of the negotiability procedure.(1)
In these circumstances, we find that the Union's notation on the charge form which signified that it had not raised the matter in another procedure was an inadvertent error. Noting that the Union also noted on the form that it elected to proceed with its negotiability appeal and that the Agency has filed a statement of position and has not been harmed by the Union's inadvertent error, we find that the petition for review is properly before us. See, for example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 44 FLRA 356, 359 (1992), rev'd as to other matters, No. 91-1583 (D.C. Cir. Mar. 4, 1993) (order).
IV. Proposals 1 and 5
Management pay[s] the initial costs for a C.D.L. license, because the [e]nclosure is outdated and inappropriate. The situation at Subase [the Agency] is different. The requirement to drive different types of vehicles different from what they have been driving is nonexistent, as cited per your [e]nclosure. Subase drivers have been driving the same vehicles regardless of the license. Management now has placed a new requirement on the drivers, to upgrade or change their present license to drive the same vehicles. The initial costs would include: general knowledge test [$]16.00; air brake test [$]5.00; learner[']s permit [$]8.00; upgrade 102 to a 103 [$]30.00.
Management [does] not pay any costs after the initial tests or requirements as listed above. Nor should they pay for any failures where the incumb[en]t has to take the same test over again.
A. Positions of the Parties
The Agency contends that Proposal 1 is inconsistent with applicable Government-wide regulations. Specifically, the Agency contends that because the proposal requires management to "pay costs associated with revised licensing requirements[,]" it is contrary to 5 C.F.R. § 930.105 and Federal Personnel Manual (FPM) chapter 930, subchapter 1. Statement at 2-3. The Agency asserts that the possession of a valid state license is a condition of employment of the unit employees involved in this case. The Agency notes that "[a] change in Federal law required states to revise their standards for licensing and required the revalidation of existing licenses." Id. at 3. Concerning the requirement for the revalidation of existing licenses, the Agency argues that "[w]hether this process results in additional cost to the individual is immaterial; it is the employee's responsibility to satisfy this requirement as a precondition to gaining employment, or, as is the case here, to retention of the position held." Id.
The Agency notes that the cited regulations "do not specify that such licensing must be at employee expense." Id. However, the Agency contends that the "long-standing position of the Comptroller General [establishes] that any licensing requirements are a personal expense of the employee, not reimbursable by the Government." Id. (emphasis in original) (citing Comp. Gen. No. B-248955 (Jul. 24, 1992) (unpublished)). The Agency states that the Comptroller General has held "repeatedly" that
"[w]here a Federal employee must secure permits or licenses to perform the duties of his or her position, . . . compliance is a matter of personal qualification and that payment by the Government of any fees incident to obtaining these permits or licenses is not authorized. These costs are personal expenses which must be borne by the employee and this rule applies notwithstanding that the license requirement becomes effective after the employee has been hired."
Id. at 4 (quoting Comp. Gen. No. B-218964 (Nov. 26, 1985) (unpublished); citing 61 Comp. Gen. 357 (1982); 51 Comp. Gen. 701 (1972); 46 Comp. Gen. 695 (1967)).
The Agency did not address Proposal 5 in its statement of position. However, in an October 23, 1992, memorandum to the Union concerning the proposals, the Agency contends that Proposal 5 is nonnegotiable because "payment of any fees incident to obtaining a permit or license is not authorized." Petition, Attachment 3--Agency Memorandum dated October 23, 1992.
The Union did not file a response to the Agency's statement of position. However, in its petition for review the Union notes that the additional licensing requirements referred to in Proposal 1 were "mandated" by new Federal guidelines and regulations. Petition at 1. Further, the Union claims that the CDL that employees are required to possess is not an upgrade license from a motor vehicle to a CMV. Rather, the Union claims that the license involved is the same type of license unit employees "have been using for years to drive the same type of vehicle[,]" with additional requirements to keep that license. Id. The Union did not address Proposal 5.
B. Analysis and Conclusions
For the following reasons, we find that Proposals 1 and 5 are nonnegotiable.
Proposal 1 requires the Agency to pay the unit employees' fees for: (1) written and driving examinations that are necessary for employees to revalidate their CDLs; (2) CDL learner's permits and personal CDLs. Proposal 5 specifies that the Agency will not pay any expenses associated with the revalidation of employees' CDLs after the initial expenses required by Proposal 1 have been paid. In sum, the proposals require the Agency to pay the initial examination and licensing fees required for employees to revalidate their CDLs.
1. Payment of Examination Fees
With respect to the payment of examination fees, we note that the Government Employees Training Act, 5 U.S.C. §§ 4101-4118 (Training Act), is the legal basis for the use of appropriated funds to train Government employees. See, for example, National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1196 (1991) (Moncrief Army Community Hospital). "Training," as defined in the Training Act, does not include: (1) an examination which is not an integral part of a course of instruction; or (2) an examination process which is not designed to impart knowledge and skills to examinees. Id. Thus, if an examination is not "training" within the meaning of the Training Act, an agency is not authorized under the Training Act to reimburse employees for costs related to the examination. Id. Further, to the extent that the licensing exams are necessary for the employees to qualify for the performance of their official duties, the Comptroller General, in interpreting the Training Act, has determined that the employees must bear these costs, even if the condition is established after the employees are hired. Id. Finally, we are not aware of any statutory basis for an agency to pay employees' examination fees other than the Training Act. See American Federation of Government Employees, AFL-CIO, Local 3529 and Defense Contract Audit Agency, Chicago, Illinois, 15 FLRA 403, 404-05 (1984) (Defense Contract Audit Agency) (citing 55 Comp. Gen. 759, 760-61 (1976)) ("[T]he fact that [an] examination in question is not covered by the Training Act means that there is no authorization for reimbursement consistent with law."); National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508, 509-10 (1981).
Based on the record in this case, we find that the written and driving examinations mentioned in Proposal 1 do not constitute examinations that are an integral part of a course of instruction or an examination process which is designed to impart knowledge and skills to the examinees. Rather, the examinations are necessary for employees to obtain licenses that are required by their jobs. Consequently, we find that those examinations do not constitute "training" within the meaning of the Training Act. See, for example, 55 Comp. Gen. 759, 760-61 (1976). Accordingly, by requiring that employees be reimbursed for the costs of examinations which do not constitute training within the meaning of the Training Act, Proposal 1 is inconsistent with the limitations of the Training Act. See Moncrief Army Community Hospital.
2. Fees for Permits and Licenses
With respect to the payment of fees for permits and licenses, we note that employees must bear the costs of qualifying for the performance of their official duties and, if a personal license is necessary, employees must procure that license even if the licensing requirement is established after they are hired. See Moncrief Army Community Hospital, 40 FLRA at 1196 and Comptroller General cases cited therein. See also 47 Comp. Gen. 116, 117 (1967) (in view of the enactment of laws, such as the Training Act, "relaxing the former general rule of self-qualification for Government employment," the Comptroller General reviewed the determination that employees must bear the costs of qualifying for the performance of their official duties and ruled that, in the absence of specific statutory authority to charge appropriated funds for the expense, the determination was still correct); Comp. Gen. No. B-186512 (1977) (citing 51 Comp. Gen. 701 (1972) ("fees incident to obtaining permits or licenses necessary to qualify a Federal employee to perform the duties of a position are personal expenses, to be paid by the employee")); Comp Gen. No. B-218964 (citing 6 Comp. Gen 432 (1926) (the Comptroller General has "specifically held that this rule applies to the requirement to obtain a driver's permit")). Accordingly, in the absence of specific statutory authority, Federal agencies are precluded from using appropriated funds to pay for licenses that unit employees need in the performance of their official duties. See 47 Comp. Gen. at 117-18; 22 Comp. Gen. 460 (1942).
The Agency has determined that valid state CDLs are required for the performance of certain unit employees' jobs. We are not aware of, and the Union does not cite to, any statutory provision that would authorize the Agency's payment of the permit and licensing fees covered by Proposal 1. Therefore, we conclude that reimbursement of these costs are inconsistent with law. See, for example, Defense Contract Audit Agency, 15 FLRA at 404. See also 6 Comp. Gen. 432.
For the foregoing reasons, we conclude that Proposal 1 is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with Federal law. See, for example, Moncrief Army Community Hospital, 40 FLRA at 1196; Defense Contract Audit Agency, 15 FLRA at 404-05. Having concluded that Proposal 1 is inconsistent with Federal law, it is unnecessary to address the Agency's contention that the proposal is inconsistent with a Government-wide regulation. Moreover, because Proposal 5 incorporates the nonnegotiable requirements of Proposal 1, we find, for the reasons stated in connection with our disposition of Proposal 1, that to the extent that Proposal 5 incorporates the nonnegotiable requirements of Proposal 1, that Proposal 5 is nonnegotiable. See, for example, Department of Commerce, U.S. Patent and Trademark Office, 45 FLRA 1379, 1384 (1992) and the case cited therein. We note that, to the extent that Proposal 5 does not require the Agency to pay employees' written and driving examination fees, or fees for permits and licenses, after the payment of the initial fees, it is consistent with Federal law.
V. Proposals 2 and 3
Management [will] refrain from implementing [the] proposed change until a final decision is made either by Federal Mediation and Conciliation Service, Federal Service Impasses Panel or through the [n]egotiability [a]ppeal [p]rocess; and until such parties negotiate a final agreement to the extent provided by law.
Management [will] maintain the status quo.
A. Positions of the Parties
The Agency states that Proposals 2 and 3 require "that management defer implementation of the revised licensing requirement until such time as the matter has been subject to third party review." Statement at 5. Noting that "normally management would be obligated to maintain the status quo pending a determination of the negotiability of a management initiated change in conditions of employment," the Agency contends that it is precluded from deferring implementation of the revised licensing requirement because "the change is not one initiated by management, but rather is a requirement mandated by Federal statute." Id. The Agency notes that the Statute excludes from the definition of "'conditions of employment'" any "'personnel policies, practices, and matters . . . to the extent such matters are specifically provided for by Federal statute[.]'" Id. (quoting 5 U.S.C. § 7103(a)(14)). Noting that the Act "establishes a mandatory licensing requirement[,]" the Agency asserts that Proposals 2 and 3 are nonnegotiable because "they do not pertain to a negotiable condition of employment." Id. at 6 (citing Overseas Education Association and U.S. Department of Defense, Office of Dependents Schools, 45 FLRA 1185, 1191-92 (1992) (DOD); National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 525-26 (1987) (Chairman Calhoun dissenting as to other matters)).
As noted above, the Union did not file a response to the Agency's statement of position. Further, in its petition for review, the Union did not address Proposals 2 and 3.
B. Analysis and Conclusions
Matters that are specifically provided for by Federal statute are excluded from the definition of conditions of employment within the meaning of section 7103(a)(14)(C) of the Statute and, therefore, are nonnegotiable under that section of the Statute. See National Federation of Federal Employees, Local 29 and U.S. Department of the Army, Engineer District, Kansas City, Missouri, 45 FLRA 603, 607 (1992) ("'where a statute specifically provides for or establishes a particular aspect of a matter, that aspect of the matter is not included within the conditions of employment about which an agency is obligated to bargain'") (quoting National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 488 (1990), decision on remand, 43 FLRA 47 (1991) (emphasis omitted)). For the following reasons, we find that Proposals 2 and 3 are nonnegotiable.
Section 2703 of the Commercial Motor Vehicle Safety Act of 1986, 49 U.S.C. app. §§ 2701-18 (1988 & Supp. III 1991) (the Act) provides that as of July 1, 1987, no employer shall knowingly allow an employee to drive a CMV without a valid CDL. 49 U.S.C. app. § 2703.(2) The Act defines "employer" as including the Federal Government. 49 U.S.C. app. § 2716(9). See 49 C.F.R. § 383.5; 52 Fed. Reg. 20574, 20579 (1987). The Act also provides that as of April 1, 1992, every CMV operator must have a State-issued CDL that meets the minimum Federal standards established by the Secretary of Transportation. 49 U.S.C. app. § 2704; 49 C.F.R. § 383.23(a). The minimum Federal standards are set forth in title 49, part 383 of the Code of Federal Regulations. See, for example, Conn. Gen. Stat. Ann. § 14-44a and e (West 1993).
Therefore, by its terms, the Act mandates that by April 1, 1992, no employer shall allow an employee to operate a CMV without a valid state CDL which meets the minimum Federal standards set forth in the Act's implementing regulations. Accordingly, because the Agency is an employer within the meaning of the Act, the Agency was precluded under the Act, as of April 1, 1992, from permitting its employees to operate its CMVs unless they possessed valid CDLs which meet the minimum Federal standards set forth in the Act's implementing regulations.
Proposal 2 requires the Agency to refrain from requiring employees to meet additional testing and licensing requirements under the Act until third-party review of the proposals has been concluded and the parties have negotiated a final agreement to the extent consistent with law. Proposal 3 requires the Agency to maintain the status quo, that is, to allow employees to continue to work with their existing licenses.
The Union has not shown, nor is it otherwise apparent based on the record before us, that the Agency had any discretion after April 1, 1992, to permit employees to operate the Agency's CMVs without possessing valid state CDLs which meet the minimum Federal standards required under the Act. Accordingly, because Proposals 2 and 3 concern when the prescribed licensing requirements will take effect, a matter mandated by the Act, we find that Proposals 2 and 3 concern a matter that is specifically provided for by Federal law. Moreover, the proposals could not constitute negotiable procedures under section 7106(b)(2) of the Statute because they would require the Agency to continue an unlawful practice. We conclude, therefore, that the proposals do not concern negotiable conditions of employment within the meaning of section 7103(a)(14)(C) of the Statute. See, for example, DOD, 45 FLRA at 1191.
We note that the Authority has long held that proposals requiring an agency to maintain the status quo during the bargaining process, consistent with its obligation to bargain, are negotiable procedures under section 7106(b)(2) of the Statute. See, for example, American Federation of Government Employees, Local 1812 and United States Information Agency, Washington, D.C., 45 FLRA 923 (1992); Moncrief Army Community Hospital, 40 FLRA at 1203. The Authority has, however, recognized certain exceptions to this general principle. See generally National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 396 (1990). In particular, an agency cannot be required to maintain the status quo during the bargaining process if to do so would require the agency to continue an illegal or unlawful practice. See, generally, National Association of Government Employees, Local R1-109 and Veterans Administration, Veterans Administration Medical Center, Newington, Connecticut, 37 FLRA 448, 456-57 (1990).
VI. Proposal 4
If no response is received within ten calendar days of receipt of this letter, it will be assumed that all proposals proposed will be implemented.
A. Positions of the Parties
The Agency does not address this proposal in its statement of position. However, in an October 23, 1992, memorandum to the Union, the Agency contends that this proposal is nonnegotiable for the reasons stated in that memorandum with respect to Proposals 1-3. The Union did not address Proposal 4.
B. Analysis and Conclusions
Proposal 4 provides that if the Agency did not respond to the Union's request for a written allegation of nonnegotiability within 10 days of receipt of the request, the Union's proposals would be implemented. It is clear from the record that the Agency responded to the Union's request within the 10 calendar days set forth in the proposal. See Petition, Attachment 3--Agency Memorandum dated October 23, 1992 & Reference (a)--Union Memorandum dated October 16, 1992. Consequently, we conclude that Proposal 4 has been rendered moot and we will dismiss the petition for review as it relates to this proposal. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 38 FLRA 263 (1990) (Proposal 1). In light of our conclusion, it is unnecessary to address any arguments raised by the Agency as to this proposal.
The petition for review is dismissed.
The Commercial Motor Vehicle Safety Act of 1986, 49 U.S.C. app. §§ 2107-18 (1988 & Supp. III 1991), provides in relevant part:
§ 2703. Employer responsibilities
Effective July 1, 1987, no employer shall knowingly allow permit, or authorize an employee to operate a commercial motor vehicle [CMV] in the United States during any period--
(1) in which such employee has a driver's license suspended, revoked, or, cancelled by a State, has lost the right to operate a commercial motor vehicle in a State, or has been disqualified from operating a commercial motor vehicle[.]
. . . .
§ 2704. Testing of operators
(a) Establishment of minimum Federal standards
Not later than July 15, 1988, the Secretary [of Transportation] shall issue regulations to establish minimum Federal standards for testing and ensuring the fitness of persons who operate commercial motor vehicles. Such regulations--
(1) shall establish minimum Federal standards for written tests and driving tests of persons who operate such vehicles;
(2) shall require a driving test of each person who operates or will operate a commercial motor vehicle in a vehicle which is representative of the type of vehicle such person operates or will operate;
(3) shall establish minimum Federal testing standards for operation of commercial motor vehicles and, if the Secretary considers appropriate to carry out the objectives of this chapter, may establish different minimum testing standards for different classes of commercial motor vehicles;
(4) shall ensure that each person taking such tests has a working knowledge of (A) regulations pertaining to safe operation of a commercial motor vehicle issued by the Secretary and contained in title 49 of the Code of Federal Regulations[.]
. . . .
(b) Requirement for operation of CMV
(1) General rule
Except as provided under paragraph (2), no person may operate a commercial motor vehicle unless such person has taken and passed a written and driving test to operate such vehicle which meets the minimum Federal standards established by the Secretary under subsection (a) of this section.
The Secretary may issue regulations which provide that a person--
(A) who passes a driving test for operation of a commercial motor vehicle in accordance with the minimum standards established under subsection (a) of this decision and
(B) who has a driver's license which is not suspended, revoked, or cancelled, may operate such a vehicle for a period not to exceed 90 days.
(3) Effective date
Paragraph (1) shall take effect on such date as the Secretary shall establish by regulation. Such date shall be as soon as practicable after October 27, 1986, but not later than April 1, 1992.
§ 2716. Definitions
For purposes of this chapter--
. . . .
The term "employee" means an operator of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle) who is employed by an employer.
The term "employer" means any person (including the United States, a State, or a political subdivision of a State) who owns or leases a commercial motor vehicle or assigns employees to operate such a vehicle.
Title 49 of the Code of Federal Regulations provides in relevant part:
§ 383.3 Applicability.
The rules in this part applies to every person who operates a commercial motor vehicle in interstate, foreign, or interstate commerce, and to all employers of such persons.
§ 383.5 Definitions.
As used in this part:
. . . .
Employee means any operator of a commercial motor vehicle, including full time, regularly employed drivers; casual, intermittent or occasiona