[ v25 p91 ]
25:0091(6)CA
The decision of the Authority follows:
25 FLRA No. 6
DEPARTMENT OF THE INTERIOR
WASHINGTON, D.C.
and
BUREAU OF RECLAMATION
WASHINGTON, D.C.
and
BUREAU OF RECLAMATION
MID-PACIFIC REGIION
Respondents
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 951
Charging Party
Case No. 9-CA-50283
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority, in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations, based on a stipulation of facts by the parties, who have
agreed that no material issue of fact exists. Briefs for the
Authority's consideration were filed by the Respondents and by the
General Counse.
The complaint alleges that Respondent Bureau of Reclamation,
Mid-Pacific Region (Respondent Region) violated section 7116(a)(1) and
(5) of the Federal Service Labor-Management Relations Statute (the
Statute) by failing and refusing to bargain in good faith with the
National Federation of Federal Employees, Local 951 (the Union) when it
unilaterally implemented changes in working conditions by rescinding its
policy of advancing 80 percent of estimated authorized travel expenses
and establishing a new policy limiting employee travel advances to
$25.00 per day. The complaint also alleges that Respondent Department
of the Interior (Respondent Interior) and Respondent Bureau of
Reclamation (Respondent Bureau) violated section 7116(a)(1) and (5) of
the Statute by interfering with Respondent Region's obligation to
bargain with the Union. Finally, the complaint alleges that Respondent
Region violated section 7116(a)(1) and (5) of the Statute by failing to
designate a duly authorized representative empowered to negotiate with
the Union over the change in the amount of travel advances.
II. Facts
The Union is the certified exclusive representative of a unit of
employees of the Mid-Pacific Region, a subcomponent of the Department of
the Interior and the Bureau of Reclamation. On or about January 3,
1985, the Mid-Pacific Region notified all employees that a policy of
limiting travel advances to $25.00 per day for frequent travelers, those
who take two or more trips a year, would begin on March 1, 1985. This
change in the amount of travel advance was in response to a
Government-wide cash management effort using charge cards to reduce the
need for a full cash advance. This program was implemented based on
instructions from Respondent Interior and Respondent Bureau concerning
travel advances and the government travel charge card program.
Employeees were advised that the Mid-Pacific Region intended to rescind
its previous policy and practice of advancing unit employees 80 percent
of estimated authorized travel expenses and establish a new policy
limiting employees' travel advances to $25.00 per day. By letter of
January 16, 1985, the Region advised the Union of its intention to
implement these changes.
By letter dated January 31, 1985, the Union requested the Region to
bargain on the change in travel advances. Attached to this letter was a
memorandum submitting eight proposals, one of which read:
5. The maximum daily cash advance will remain as it is at present
for those employees who do not volunteer for the Charge Card
Program and for those who do not qualify for the Program.
On February 7, 1985, representatives of the Union met with a Labor
Relations Specialist for the Region to discuss the Union's proposals.
During these discussions the Labor Relations Specialist stated that he
had no authority to bargain over Union Proposal No. 5. Since that time,
the Region has not bargained with the Union over the change in travel
advances. On or about March 1, 1985, the Region rescinded its old
policy of advancing employees 80 percent of estimated authorized travel
expenses and instituted the new policy limiting employee travel advances
to $25.00 per day. The parties stipulated that the Region unilaterally
implemented the change in travel advance policy before completion of
collective bargaining negotiations with the Union on the change.
On or about March 5, 1985, the Union proposed to the Region a "Joint
Statement on Government Charge Card Program" which included the
following revised proposal:
The maximum daily cash advance will remain at 80% of estimated
total costs for those employees who do not participate in the
program.
On March 14, 1985, the Region responded to the Union's March 5 letter
by stating that the proposal was not previously considered and that
"(t)he Union's revised proposal, if agreed to, would negate the purpose
and intent of the Government-wide program." On April 12, 1985, the
Region advised the Union that Bureau and Departmental instructions
precluded negotiations on the proposal set forth in the Union's proposed
Joint Statement.
III. Positions of the Parties
A. Respondents' Brief to the Authority
The Respondents contend that travel advances are not a condition of
employment, under section 7103(a)(14)(C) of the Statute, because they
are specifically provided for by Federal statute and implementing
Government-wide regulations (GSA travel regulations). Respondents
further argue that even if travel advances are conditions of employment,
Respondents are not required to, and may elect not to, bargain on the
substance of the change because the change constitutes a method and
means of performing work under section 7106(b(1) of the Statute. In
this regard, they contend that the agency's travel advance policy: (1)
constitutes a method and means of carrying out Respondents' "official
business" and the performance of its work and mission; and (2) is a
method and means of carrying out the Government's and the agency's cash
management policy, a support operation which is directly and integrally
related to the efficient and economical performance of the agency's
overall operations and mission. Additionally, the respondents contend
that there was a complelling need for the change in travel advance
policy to comply with a mandate under law when GSA issued temporary
regulations implementing the new travel and transportation expenses
payment system providing for charge cards, and Government travel system
accounts and travelers checks, applicable to agencies that voluntarily
agreed to participate in the new system. Finally, Respondents contend
that there was a compelling need based on policies and directives issued
by the Office of Management and Budget in Bulletin No. 83-6 (Oct. 22,
1982), as well as certain Treasury regulations.
B. Counsel for the General Counsel's Brief to the
Authority
The General Counsel contends that the Respondents' unilateral change
in the amount of travel advances violated section 7116(a)(1) and (5) of
the Statute by changing a condition of employment. The General Counsel
asserts that the subject of travel advances is not excluded by section
7103(a)(14)(C) of the Statute from the duty to bargain over conditions
of employment. Further, the General Counsel argues that the amount of
travel advances does not constitute a method and means of performing
work under section 7106(b)(1) of the Statute because no evidence was
presented by the Respondents that bargaining on the amount would
interfere with those rights.
As to Respondents' compelling need arguments, the General Counsel
argues that nothing in the regulations cited by Respondents imposes a
specific $25.00 limit on the amount of travel advances or demonstrates
that the regulations are essential as distinguished from helpful or
desirable, to the accomplishment of the mission or the execution of
functions of the agency. Additionally, the General Counsel takes the
position that the Department and the Bureau violated section 7116(a)(1)
and (5) of the Statute by issuing instructions to the Region to limit
travel advances to $25.00 per day, thereby precluding the Region from
fulfilling its statutory bargaining obligation with the Union. Finally,
the General Counsel argues that the Region violated section 7116(a)(1)
and (5) by failing to provide a representative at the bargaining table
empowered to negotiate and enter into agreements with the Union, as
required by section 7114(b)(2) of the Statute.
IV. Analysis
A. Condition of Employment
The proposal clearly involves a condition of employment not excepted
from the definition of section 7103(a)(14). Travel advances are covered
by 5 U.S.C. Section 5705, which is part of the Travel Expense Act.
While the Travel Expense Act governs the general subject of payment of
travel expenses for employees traveling on official business, it does
not specifically address the amount of the per diem to be advanced to
the employee. We therefore reject the Respondents' contention that the
proposal involves a matter specifically provided for by Federal statute
so as to be excepted from the definition of conditions of employment.
See National Treasury Employees Union and Department of the Treasury,
U.S. Customs Service, 21 FLRA No. 2 (1986), petition for review filed
sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No.
86-1198 (D.C. Cir. March 27, 1986). Furthermore, the reduction in the
amount of travel advances from an estimated 80 percent of costs per day
to $25.00 per day changes working conditions of unit employees since
such a reduction could require employees to pay some initial
out-of-pocket expenses.
B. Method and Means of Performing Work
The amount of travel advances does not constitute a method and means
of performing work under section 7106(b)(1) of the Statute. We have
held that in order to constitute matters which may be negotiated only at
the election of the agency pursuant to section 7106(b)(1), the matters
must be principally or directly related to the performance of the
agency's work. American Federation of Government Employees, AFL-CIO,
Local 3525 and U.S. Department of Justice, Board of Immigration Appeals,
10 FLRA 61 (1982) (Union Proposal 1). The Respondents have not shown
that bargaining on the amount of travel advances would involve matters
principally or directly related to the performance of the agency's work.
Therefore, there is no showing that bargaining on this matter would
interfere with Respondents' rights to determine the methods and means of
performing work of the agency.
C. Compelling Need
We reject the Respondents' contention that their change in the
regulation limiting travel advances to $25.00 per day implements a
nondiscretionary mandate under law or other outside authority so as to
support a finding of compelling need. While the regulations relied on
by the Respondents, OMB Bulletin 83-6, Federal Travel Regulations and
Treasury Regulations, were issued to help reduce travel and cash
balances wherever possible, they do not include a limit of $25.00 per
day on travel advances. Thus, the limit imposed by the Respondents is
not mandated by the regulations on which they rely. See, for example,
International Federation of Professional and Technical Engineers, Local
12 and Department of the Navy, Puget Sound Naval Shipyard, 24 FLRA No.
24 (1986). Furthermore, the Respondents have not demonstrated that the
change in the amount of travel advances is essential, as distinguished
from helpful or desirable, to accomplish their mission. While the
Respondents contend that the charge card program offers an opportunity
to derive substantial savings through cash management, they have not
demonstrated that the change in limiting travel advances to $25.00 per
day achieves that objective. We note that the Respondents are required
to pay employees for the expenses to which they are entitled under
appropriate regulations, irrespective of the amount of the travel
advance. Moreover, as we recently held, a demonstration of monetary
savings alone is not sufficient to establish that a regulation is
essential, as distinguished from helpful and desirable, to the
accomplishment of the mission or the execution of the functions of an
agency in a manner which is consistent with the requirements of an
efficient and effective Government. See Lexington -- Blue Cross Army
Depot, Lexington, Kentucky and American Federation of Government
Employees, AFL-CIO, Local 894, 24 FLRA No. 6 (1986). Therefore, we
conclude that the Respondents have not met their burden of showing that
their regulation meets the compelling need standards.
D. Whether Respondent Interior and Respondent Bureau
violated section 7116(a)(1) and (5) of the Statute by
interfering with the bargaining obligation of Respondent
Mid-Pacific Region
It is uncontroverted in the record that Bureau and Departmental
instructions precluded local negotiations on the matter in dispute in
this case (Stipulation No. 17 and Joint Exhibit No. 7). These
instructions by higher agency levels removed from the Region any
discretion as to this matter. In these circumstances, we conclude that
Respondent Interior and Respondent Bureau interfered with the protected
rights of employees of the Region, the level of exclusive recognition,
by directing it to implement a limitation on travel advances that
precluded the Region from fulfilling its obligation to bargain with the
Union on a change in conditions of employment. See Department of Health
and Human Services, Social Security Administration, Region VI and
Department of Health and Human Services, Social Security Administration,
Galveston, Texas District, 10 FLRA 26 (1982). However, we do not find
that it would effectuate the purposes and policies of the Statute to
find an additional cumulative violation against the Region by refusing
to bargain in good faith, since it had no discretion to bargain on the
substance of the change. This result is consistent with our
determination in other cases concerning ministerial actions by
subordinate levels of management in implementing directives of higher
level management, where higher level management is found to have
violated the Statute. See, for example, United States Department of the
Treasury, Internal Revenue Service and Internal Revenue Service, Austin
District and Internal Revenue Service, Houston District, 23 FLRA No. 100
(1986), slip op. at 6; Headquarters, Defense Logistics Agency,
Washington, D.C., 22 FLRA No. 93 (1986), slip op. at 5-6.
E. Respondent Region's Duty to Designate an Authorized
Bargaining Representative
As we discussed above, Respondent Region had no discretion to bargain
on the substance of the change. Accordingly, we find that it would not
effectuate the purposes and policies of the Statute to find that the
Region's failure to designate an authorized bargaining representative
violated section 7116(a)(1) and (5) of the Statute. We shall therefore
dismiss this part of the complaint.
V. Conclusion
Based on the stipulated record, the parties' contentions, and the
analysis set forth above, we do not hold that Respondent Region violated
the Statute as alleged in the complaint and therefore we will dismiss
those allegations. We further conclude that Respondent Interior and
Respondent Bureau did interfere with the Region's duty to bargain on a
negotiable matter in violation of section 7116(a)(1) and (5) of the
Statute, and we shall issue an appropriate remedial order.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, it is hereby ordered that the
Department of the Interior and the Bureau of Reclamation shall:
1. Cease and desist from:
(a) Unilaterally changing the established conditions of employment of
employees in the mid-Pacific Regional Office concerning the maximum
amount of travel advances for employees in the Mid-Pacific Regional
Office identified as frequent travelers under the Government Charge Card
Program, and interfering in the Mid-Pacific Regional Office's obligation
to bargain with National Federation of Federal Employees, Local 951, the
exclusive representative of these employees, prior to the implementation
of such change.
(b) In any like or related manner interfering with, restraining, or
coercing any employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Withdraw and rescind the change which was implemented on or about
March 1, 1985 which policy changed the maximum amount of travel advances
for those employees identified as frequent travelers in the Mid-Pacific
Regional Office, and reinstate in the Mid-Pacific Regional Office the
procedures and policies relating to travel advances as practiced prior
to March 1, 1985.
(b) Post at the Department of Interior, Bureau of Reclamation,
Mid-Pacific Regional Office, Sacramento, California, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Under Secretary of the Department of Interior, and the Assistant
Commissioner, Bureau of Reclamation, and shall be posted and maintained
by the Mid-Pacific Regional Office for 60 consecutive days thereafter,
in conspicuous places, including all bulletin boards and other places at
each office where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with this Order.
Further, the potion of the complaint alleging that Respondent Bureau
of Reclamation, Mid-Pacific Region violated section 7116(a)(1) and (5)
of the Statute is dismissed.
Issued, Washington, D.C. January 9, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally change the stablished conditions of
employment or our employees in the Mid-Pacific Regional Office
concerning the maximum amount of travel advances for employees in the
Mid-Pacific Regional Office identified as frequent travelers under the
Government Charge Card Program, and interfere in the Mid-Pacific
Regional Office's obligation to bargain with National Federation of
Federal Employees, Local 951, the exclusive representative of these
employees, prior to the implementation of such change.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL withdraw and rescind the policy which was implemented on or
about March 1, 1985 which changed the maximum amount of travel advance
for those employees identified as frequent travelers in the Mid-Pacific
Regional Office, and reinstate in the Mid-Pacific Regional Office the
procedures and policies relating to travel advances as practiced prior
to March 1, 1985.
Department of the Interior
Dated: . . . . . . . . . . . . By: . . . . . . . . . .
Under Secretary
Bureau of Reclamation
Dated: . . . . . . . . . . . . . . By: . . . . . . . . . .
Assistant Commissioner
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region IX, Federal Labor Relations Authority, whose address
is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose
telephone number is: (415) 995-5000.