[ v13 p446 ]
13:0446(80)NG
The decision of the Authority follows:
13 FLRA No. 80
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3483
Union
and
FEDERAL HOME LOAN BANK BOARD,
NEW YORK DISTRICT OFFICE
Agency
Case No. O-NG-377
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and raises the question
of the negotiability of the following Union proposals.
Union Proposal 1
The residence of the Examiner will be considered his/her
official duty station for purposes of computing expenses.
Question Before the Authority
The question is whether, as alleged by the Agency, the proposal is
outside the duty to bargain under section 7116(a)(1) of the Statute
because it is inconsistent with Government-wide rules or regulations.
Opinion
Conclusion and Order: The Union's proposal is inconsistent with
provisions of the Federal Travel Regulations, which are Government-wide
regulations within the meaning of section 7116(a)(1) of the Statute and
thus is outside the duty to bargain. Accordingly, pursuant to section
2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the
petition for review as to Union Proposal 1 be, and it hereby is,
dismissed. Reasons: The proposal would require the Agency to designate
each employee's place of residence as the official duty station for the
purpose of computing his or her travel expenses under the Federal Travel
Regulations (FTRs). The record is clear that this designation is not
intended to be dependent upon where an employee in fact performs his or
her duties or any like considerations. The Agency contends the proposal
conflicts with provisions of the FTRs, which are Government-wide
regulations and, thus, is outside the duty to bargain under section
7117(a)(1) of the Statute. /1/
In National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 747 (1980), the Authority, based
upon the legislative history of section 7117(a)(1), determined that the
term "Government-wide rule or regulation" referred to those provisions
which are generally applicable to the Federal civilian work force. The
Authority found that the Federal Property Management Regulations (FPMRs)
at issue in that case were "Government-wide" within the meaning of
section 7117(a) because they generally apply to Federal civilian
employees in the executive, legislative, and judicial branches of the
Government.
The regulations at issue in the present case, the FTRs, are
incorporated by reference in Part 101-7 of the FPMRs (41 CFR 101-7)
promulgated by the Administrator of General Services. These
regulations, as relevant herein, were issued under the authority of 5
U.S.C. 5701-5709. They are applicable to official travel of civilian
employees of Government agencies, including civilian employees of the
Department of Defense, as authorized under 5 U.S.C. 5701-5709, but
excluding employees of the judicial branch of the Government. By their
terms, these regulations generally apply to and are binding on the
Federal civilian work force as a whole, though not, of course, to every
Federal employee. As such, these regulations are generally applicable
throughout the Federal government and are "Government-wide regulations"
within the meaning of section 7117(a).
The remaining issue is whether this proposal is inconsistent with
provisions of the FTRs. The term "official station" is defined as an
employee's designated post of duty, the limits of which will be " . . .
the corporate limits of the city or town in which the officer or
employee is stationed . . . ." FTR Para. 1-1.3c(1). The Office of the
Comptroller General has considered questions involving the location of
an employee's official duty station for purposes of computing travel and
transportation allowances under the FTRs and the Standardized Government
Travel Regulations which preceded the FTRs. An employee's official duty
station consistently has been held to be the place at which the employee
performs the major part of his or her duties and is expected to spend
the greater part of his or her time. See 32 Comp.Gen. 87 (1952).
Furthermore, although the location of an employee's official station is
essentially a factual matter for determination primarily by the
administrative agency involved, that agency may not designate an
employee's official duty station at some place other than the place at
which that person is expected to perform the preponderance of his or her
duties. 31 Comp.Gen. 289 (1952). Therefore, the reassignment or
transfer "on paper" of an employee to a new duty station is not in
itself a sufficient basis for granting that employee travel expenses
where the facts show that the employee's actual duty station is really
another place at which the employee would not be entitled to the claimed
travel expenses. Matter of Arthur S. Spencer-Mileage, B-193807, May 21,
1979. Thus, under the FTRs, as interpreted and applied in decisions of
the Comptroller General, an agency's determination of an employee's
official duty station for the purpose of computing travel expenses must
have a factual basis, as set forth above.
The proposal at issue herein by requiring the Agency to designate
each employee's residence as his or her official duty station without
regard for any such factual basis and to compute travel expenses from
such place of residence would conflict with the FTRs. Thus, this
proposal is outside the duty to bargain under section 7117(a)(1) of the
Statute. /2/
Union Proposal 2
When on a commuting assignment, a maximum of one hour each way
will be on the employee's time. Additional required time will be
accomplished on official time.
Question Before the Authority
The question is whether the proposal is outside the duty to bargain
under section 7106(a)(2)(B) of the Statute because it is inconsistent
with management's right to assign work.
Opinion
Conclusion and Order: This proposal is inconsistent with management's
right to assign work under section 7106(a)(2)(B) of the Statute /3/ and
thus is outside the duty to bargain. Accordingly, pursuant to section
2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the
petition for review as to Union Proposal 2 be, and it hereby is,
dismissed. Reasons: Based on the record, the bank examiners whose
travel is the subject of this proposal generally receive their
examination assignments by mail and travel from their residences
directly to and from their examination sites without reporting to the
District Office.
In the absence of any Union statement controverting the Agency's
contentions with respect to the proposal's intended effect, the
Authority concludes, in agreement with the Agency, that the proposal
would in essence preclude the assignment of bank examination duties
during hours at the beginning and end of the workday to those employees
whose commute between residence and workplace exceeds one hour each way.
In this respect, the proposal is substantively to the same effect as
Proposal 7 in National Treasury Employees Union and NTEU Chapter 80 and
Department of the Treasury, Internal Revenue Service, Central Region, 8
FLRA No. 38 (1982), which would have required management to assign
specified types of work at specific times to bargaining unit employees
and would have precluded the assignment of other work at those times
and, thus, was held to violate management's right "to assign work" under
section 7106(a)(2)(B) of the Statute. Therefore, for the reasons stated
in Internal Revenue Service, the Authority finds the proposal in dispute
herein violates management's right to assign work under section
7106(a)(2)(B) and is outside the duty to bargain. /4/ See also Proposal
I in International Association of Fire Fighters, Local F-48, AFL-CIO and
Naval Support Activity, Mare Island Station, California, 3 FLRA 489
(1980).
Union Proposal 3
Section 3 - Critical Elements - Critical elements shall be
based on the duties contained in the official written description
of the employee's position. To the extent practicable, Critical
Elements should be related to the grade controlling duties of a
position. Critical Elements shall be communicated in writing to
each employee at the beginning of the rating period.
Section 9 - Notice to the Union - Management shall inform the
union on any and all studies it conducts bearing on performance
appraisals. Management shall inform the union of any Department
wide changes in performance standards.
(Only the underlined portions of the proposal are in dispute.)
Questions Before the Authority
The questions are whether, as alleged by the Agency, the disputed
portion of Section 3 of the proposal is inconsistent with section
7106(a)(2)(A) and (B) of the Statute and whether the disputed portion of
Section 9 is inconsistent with section 7114(b)(4)(C) and thus outside
the duty to bargain.
Opinion
Conclusion and Order: The underlined portion of Section 3 of the
proposal is inconsistent with section 7106(a)(2)(A) and (B) of the
Statute. Accordingly, pursuant to section 2424.10 of the Authority's
Rules and Regulations, IT IS ORDERED that the petition for review of
Section 3 of the proposal be, and it hereby is, dismissed. The
underlined portion of Section 9 of the proposal concerns procedures
management will observe in developing a performance appraisal system and
is within the duty to bargain under section 7106(b)(2) of the Statute.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning the disputed
portion of Section 9 of the proposal. /5/ Reasons: In American
Federation of Government Employees, AFL-CIO, Local 1968 and Department
of Transportation, Saint Lawrence Seaway Development Corporation,
Massena, New York, 5 FLRA No. 14 (1981), affirmed sub nom. American
Federation of Government Employees, Local 1968 v. Federal Labor
Relations Authority, 691 F.2d 565 (D.C. Cir. 1982), cert. denied . . .
U.S. . . . , 103 S.Ct. 2085 (1983), the Authority found that Union
Proposal 1, which precluded management from identifying and establishing
as a critical element of a position any duty which was not based upon a
grade controlling factor, constituted an improper limitation on
management's discretion to direct employees and assign work through the
designation of critical job elements. Therefore, the Authority held the
proposal nonnegotiable under section 7106(a)(2)(A) and (B) of the
Statute. /6/ Further, with respect to Union Proposal 4 in that case, it
would have subjected management's identification of critical elements to
arbitral review and for that reason also was held to be inconsistent
with the same sections of the Statute. Insofar as Section 3 of the
disputed proposal herein provides that " . . . Critical Elements should
be related to the grade controlling duties of a position," it would
specify a substantive criterion by which management must identify only
grade controlling duties as the critical work of a given position. In
this regard, it is materially to the same effect as Proposal 1 in the
Saint Lawrence Seaway decision.
With respect to the phrase "to the extent practicable" in the present
proposal which was not involved in Proposal 1 in Saint Lawrence Seaway,
this language would not require a different result. Rather, it would
have the effect of subjecting management's discretion to identify the
critical elements of a position, i.e., management's decision that it is
not practicable to limit its identification of critical elements to only
those tasks which are related to the grade controlling duties of a
particular position, and thus identify as critical elements duties which
are not grade controlling, to review in an arbitration proceeding.
Section 3 would, in effect, subject to arbitral review the Agency's
identification of critical elements and permit arbitrators to render
awards which would require the Agency to use different critical
elements. Thus, the language "to the extent practicable" does not
remove the limitation imposed on management's identification of critical
elements by Section 3 of the proposal. In this regard, contrary to the
Union's claim, by prescribing a substantive limitation on the exercise
of management's right to identify critical elements, Section 3 is
distinguished from Union Proposal 5 in American Federation of Government
Employees, AFL-CIO, Local 32 and Office of Personnel Management,
Washington, D.C., 3 FLRA 784, 789-94 (1981), which the Authority found
to be within the duty to bargain. The proposal in that case merely
established a criterion by which the application to a particular
employee of standards and elements established by management could be
reviewed in a grievance and, as such, could not result in overturning
those standards and elements. Thus, it constituted an appropriate
arrangement under section 7106(b)(3) of the Statute for employees who
had been adversely affected by the exercise of management's rights to
direct employees and assign work. Therefore, for the reasons set forth
in detail in Saint Lawrence Seaway, Section 3 of the proposal must be
held to be outside the duty to bargain.
The disputed portion of Section 9 of the proposal, by its language
and the Union's stated intent in the record, seeks to insure that the
Agency would notify the Union of studies it conducts concerning
performance appraisals, i.e., that there will be no secret studies on
performance appraisals. The Agency's sole contention with respect to
this portion of the proposal is that Section 9 is inconsistent with
section 7114(b)(4)(C) of the Statute /7/ which prohibits the Agency from
furnishing to the Union any data which constitutes guidance or advice to
management relating to collective bargaining. Under the circumstances
presented here, section 7114 is inapposite. As mentioned above, the
proposal only requires that there be no secret studies concerning
performance appraisals. The proposal does not in any manner literally
relate to information or data necessary to management for collective
bargaining purposes. Further, the Agency has not shown how the proposal
would involve furnishing information which management needs for
negotiations in violation of section 7114(b)(4)(C).
The proposal's requirement that the Union be informed of "studies"
related to performance appraisals is identical in effect to the first
sentence of the first paragraph of Proposal 4 in American Federation of
Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Chicago Region, Illinois, 7 FLRA No. 34 (1981), which the
Authority held to be negotiable pursuant to section 7106(b)(2) of the
Statute. /8/ The Authority found in that case that the proposal
concerned matters of a procedural nature, relating to the development of
a performance appraisal system, which would not prevent the agency from
identifying a particular critical element or establishing a particular
performance standard pursuant to its reserved rights. Therefore, for
the reasons set forth in Federal Deposit Insurance Corporation, the
disputed portion of Section 9 of this proposal, which concerns matters
of a procedural nature, is within the duty to bargain under section
7106(b)(2) of the Statute. Issued, Washington, D.C., December 2, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7117(a)(1) provides:
Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with
any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if
the rule or regulation is not a Government-wide rule or
regulation.
/2/ Since the Authority concludes that Union Proposal 1 is outside
the duty to bargain under section 7117(a)(1), it is unnecessary to
consider the Agency's additional contentions concerning the
nonnegotiability of the proposal.
/3/ Section 7106(a)(2)(B) provides:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
. . . .
(2) in accordance with applicable laws--
. . . .
(B) to assign work . . . (.)
/4/ Since the Authority concludes that Union Proposal 2 is outside
the duty to bargain under section 7106(a)(2)(B), it is unnecessary to
consider the Agency's other contentions concerning the nonnegotiability
of the proposal.
/5/ In deciding that the disputed portion of Section 9 of the
proposal is within the duty to bargain, the Authority makes no judgment
as to the merits thereof.
/6/ Section 7106(a)(2)(A) and (B) provides:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
. . . .
(2) in accordance with applicable laws--
(A) to . . . direct . . . employees in the agency . . . ;
(B) to assign work . . . (.)
/7/ Section 7114(b)(4)(C) provides:
Sec. 7114. Representation rights and duties
. . . .
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
. . . .
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data--
. . . .
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining(.)
/8/ Section 7106(b)(2) provides:
Sec. 7106. Management rights
. . . .
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
. . . .
(2) procedures which management officials of the agency will
observe in exercising any authority under this section(.)