File 2: Opinion of Chairman Cabaniss
[ v58 p614 ]
Concurring Opinion of Chairman Cabaniss
While I agree that the petition for review should be dismissed, I disagree with the majority that the proposal does not concern a condition of employment under the second prong of the Antilles test. Rather, I would find a direct link between the proposal (which seeks through reimbursement to minimize the impact on employees who had acquired and then trained with these firearms specifically because this policy existed) and the employment situation (which now prohibits employees from using authorized personal firearms.) Just because employees were not required to bring in their own firearms, but were allowed to volunteer to do so, does not mean that a change eliminating that option does not concern a condition of employment. See, e.g., United States Dep't of Health and Human Services, Public Health Service, Indian Health Service, Quentin N. Burdick Memorial Health Care Facility, Belcourt, N.D., 57 FLRA 903, 906 (2002) (even where employee use of government housing is strictly voluntary, dispute over government rental rates may concern conditions of employment under the second prong of Antilles); Response at 2.
Additionally, while I note that under the terms of the proposal employees would be able to retain these firearms and, as a consequence may ultimately use them in their civilian (off-duty) capacity as they are currently able to do, I do not believe that the fact that this proposal touches in part upon benefits which would flow to employees in an off-duty status necessarily means that the proposal does not concern conditions of employment. [n1] See, e.g., AFGE, Local 1786, 49 FLRA 534, 535, 538-41 (1994) (finding a direct connection between the use of exchange privileges while off-duty and employee work situation especially where a past practice existed). As such, I believe that the question presented by the proposal dealing with the issue of reimbursement for personal firearms brought to the job under a previous Agency policy can and should be resolved by analyzing the proposal under appropriations law, rather than finding that the proposal does not concern a condition of employment.
With this in mind, the Authority has generally found that an expenditure of appropriated funds for a particular purpose is permitted only if there is a statutory or regulatory authority for such expenditure. See, e.g., Downs v. Office of Personnel Management, 69 F.3d 1141, 1143 (Fed. Cir. 1995) ("The United States Constitution limits payments of monies from the Federal Treasury to those authorized by statute."); (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 416 (1990)); AFGE, Local 1978, 56 FLRA 894, 896 (2000). Here, our Statute alone does not expressly or impliedly allow the Agency to expend funds for this purpose. See Association of Civilian Technicians, Puerto Rico Army Chapter, 58 FLRA 318, 321 (2003). Accordingly, given that expenditures must generally be specifically authorized, there must be a showing of how in these circumstances, a proposal to have the Agency reimburse employees for personal firearms, holsters, ammunition and permits is authorized either through a specific statute or, as the parties discuss, under a narrow exception that allows an agency to reimburse employees for property that is considered personal in nature. SOP at 4, Union's Response at 4.
Upon review of the arguments, neither party specifically cites to any statutory provision that would authorize the expenditure of appropriated funds under these circumstances. Rather, the parties limit their focus to an exception under Comptroller General decisions that allow an agency in limited circumstances to reimburse employees for equipment that could be considered personal in nature. [n2] Under this test, the Comptroller General has consistently ruled that agency funds may be spent for such equipment only if: (1) the Government, rather than the employee, receives the primary benefit from the equipment; and (2) the equipment is not a personal item that should be furnished by the employee. See, e.g., AFGE, Local 1547, 55 FLRA 684, 685 (1999); (citing 63 Comp. Gen. 278 (1984)). Moreover, to determine whether an item primarily benefits the Government, the Authority has held that the item in question should be examined to see if it is essential to the transaction of official business from the agency's standpoint. Id. at 685. For a number of reasons explained below, the proposed reimbursement set forth in this proposal does not fall within this exception. [ v58 p615 ]
First, unlike the cited Comptroller General cases or NFFE, Local 1827, 26 FLRA at 790-92 (which also applies the Comptroller General's exception), it is clear that the Agency was supplying the very equipment for which the Union contends that employees should be reimbursed. Moreover, the Union has not shown why, under prong I of the above test, that employees should be reimbursed for equipment that: (1) employees were never required to purchase in order to perform their jobs because equivalent equipment was always provided by the Agency; [n3] and (2) would not benefit the Agency in any manner because personal firearms are banned from on-duty use. It is clear that the entire rationale for employees purchasing these firearms was based on a personal benefit to the employee, and not to the Government.
Second, even if the Union's proposal were to somehow comply with the above test, the proposal as written would remain nonnegotiable. In this regard, we note that under the cited cases when the Comptroller General did allow reimbursement for such a personal item, ownership of the property transferred to the Government as opposed to remaining with the employee. 56 Comp. Gen. 398, 401 (1977) (finding that an employee should be reimbursed for purchasing an electric wheelchair because the agency failed to install legally compliant carpeting in the work place, but requiring the wheelchair to remain onsite at all times). Here, however, under the Union's interpretation of its proposal not only would an employee be reimbursed, even for firearms not paid for, but the employee would then retain possession and legal ownership. As such, I would adopt the Comptroller General's approach or the proposal would create a financial windfall for the employee.
Accordingly, because the Union has neither shown how the Agency would have statutory authorization to reimburse employees under this proposal, nor has it shown how this proposal either falls within the exception discussed above or offered any other basis which would authorize the appropriations sought in this proposal, I would find that the proposal is inconsistent with law and is nonne