Association of Civilian Technicians, Puerto Rico Army Chapter (Union) and U.S. Department of Defense, National Guard Bureau, Puerto Rico National Guard, San Juan, Puerto Rico (Agency)

[ v56 p493 ]

56 FLRA No. 77

ASSOCIATION OF CIVILIAN TECHNICIANS
PUERTO RICO ARMY CHAPTER
(Union)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
PUERTO RICO NATIONAL GUARD
SAN JUAN, PUERTO RICO
(Agency)

0-NG-2519

____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

July 21, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

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), and concerns the negotiability of 2 provisions disapproved by the Agency head under section 7114(c) of the Statute. The Agency filed a statement of position and the Union filed a response. The Agency filed a reply to the Union's response.

      For the reasons that follow, we find that Provision 1 is not contrary to law, and order the Agency to rescind its disapproval. We further find that Provision 2 is contrary to law, and dismiss the petition for review as to Provision 2.

II.     Provision 1  [n1] 

Article 6 - Official Time for Labor Organization Representatives
6-2. Appropriate Uses of Official Time:

. . .

Official time provisions include, but shall not be limited to:

. . .

     f. Reasonable time will be allowed union officials and employees to change clothes prior to and subsequent to the situations contained in the CIVILIAN ATTIRE section below.
6-4. Civilian Attire:

. . .

     g.     Employees in the Bargaining Unit will not be required to wear the military uniform while:
          1.     Processing a grievance at any step of the negotiated grievance procedure, or
          2.     Appearing as a grievan[t] or witness in any third-party proceeding.

A.     Post-Petition Conference Summary

      The Union stated that language essentially identical to that of Article 6, sections 6-2(f) and 6-4(g) is involved in the following cases with the Authority: 0-NG-2444 and 0-NG-2510. [n2] The Agency agreed with the Union's characterization. The Union also stated that the issues in 0-NG-2444 and 0-NG-2510 are slightly broader than the issues in the disputed provision here, and the Agency agreed with the Union's characterization.

      The parties agreed that the Petition for Review essentially sets forth the language and meaning of the disputed provision and accurately describes the intended operation and impact of the disputed provision. In addition, the parties provided the following clarifications concerning the meaning of Article 6, section 6-4(g)(1): the phrase "processing the grievance" means meeting with an Agency representative concerning the grievance, including travel to and from the meeting; the phrase "any step of the negotiated procedure" encompasses more grievance procedure steps than the language disputed in 0-NG-2510 but the difference is not legally significant. [ v56 p494 ]

B.     Positions of the Parties

1.     Agency

      The Agency contends that the language of section 6-2 that allows technicians "time to change from the appropriate military uniform to civilian attire" is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute because it "would abrogate management's right to assign the technician to any other duties during that time[.]" Statement of Position at 8. In support, the Agency cites Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682 (1987) (ACT).

      The Agency contends that section 6-4 conflicts with 32 U.S.C. § 709(b)(3)(hereinafter "section 709"). [n3] In support, the Agency cites to the text of section 709 as it existed prior to its amendment on October 5, 1999. [n4] According to the Agency, section 6-4 describes circumstances where "technicians are performing `technician duties'" as defined by section 709. Statement of Position at 7. Specifically, the Agency argues that the language "`while performing duties as a technician'" under section 709(b)(3) "is intended to mean . . . . an event or situation arising from his/her employment as a technician, or as a technician testifying to events he/she has observed as a technician." Id. at 5, 6 (emphasis in original). The Agency argues that "[s]ection 709(b) supports this interpretation in that it states ` . . . a technician employed under subsection (a) shall, while so employed . . . wear the military uniform appropriate for the member's grade and component while performing duties as a technician.'" Id. at 5 (emphasis in original). [n5] The Agency concludes that section 709 requires technicians to wear a military uniform during the circumstances described by section 6-4, and therefore section 6-4 is inconsistent with law. In support, the Agency cites Association of Civilian Technicians, Mile High Chapter and U.S. Department of Defense, Colorado Air National Guard, 140th Fighter Wing, 53 FLRA 1408 (1998).

2.     Union

      The Union contends that, under the circumstances described by Provision 1, technicians are "either (a) on official time or (b) performing a task for which official time lawfully could be either authorized by the FLRA under 5 U.S.C. § 7131(c) or negotiated by the union under 5 U.S.C. § 7131(d)." Response at 2. The Union cites Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 105 (1983) (BATF), for the proposition that official time is not duty time. In this connection, the Union contends that Provision 1 does not interfere with management's right to assign work because employees "are entitled to official time during the times to which the provision applies." Response at 4. In the alternative, the Union argues that "[e]ven if `work' were being performed during the times to which the provision applies, Provision 1 concerns [the] wear[ing] of clothing, which is a method and means of performing work negotiable under 5 U.S.C. § [ v56 p495 ] 7106(b)(1)." Id. at 5. In support for that argument, the Union cites Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA 288 (1984).

      In addition, the Union contends that the Agency's view of Provision 1 is that technicians engaged in activities described therein are on duty time. Under that view, the Union argues that a technician would be prohibited from being granted official time, which would therefore "change the Authority's power to grant, or a labor organization's right to negotiate, non-duty official time under § 7131." Response at 3. Accordingly, the Union argues that the Agency's view creates a conflict between section 709 and section 7131 of the Statute. The Union concludes that the Authority should reject the Agency's position because: (1) statutory provisions, wherever possible, should be construed so as to be consistent with one another; and (2) 5 U.S.C. § 7131 should control over section 709 because 5 U.S.C. § 7131 is the more specific statutory provision. As authority, the Union cites Citizens to Save Spencer County et. al. v. Environmental Protection Agency, 600 F.2d 844, 870 (D.C. Cir. 1979), and Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992), respectively.

C.     Meaning of the Provision

      The parties do not dispute the meaning of the provision. "Official time" means time described in 5 U.S.C. § 7131. Petition for Review at 3. The term "grievance" has the meaning stated in 5 U.S.C. § 7103(a)(9) and "processing a grievance" means meeting with an Agency representative concerning the grievance, including travel to and from the meeting. Conference Summary at 2. The phrase "third party proceeding" means an administrative proceeding before the Authority, the Federal Service Impasses Panel (FSIP), or an arbitrator. Petition for Review at 3.

D.     Analysis and Conclusions

      Section 6-4 concerns the wearing of uniforms by National Guard technicians when engaged in labor-management or collective bargaining activities rather than technician duties. In this regard, the section is to the same effect as the provision that we held was not contrary to law in North Dakota National Guard, 56 FLRA 256 (Provision 1). There, the Authority held that a provision that would permit National Guard technicians to wear civilian attire at third-party proceedings would not be inconsistent with the requirement in 32 U.S.C. § 709(b)(3) that a technician must wear a military uniform "while performing duties as a technician." Id. at 256-57. We rejected the agency's argument that section 709(b)(3) requires a technician to wear the military uniform when participating in a third-party proceeding because the technician would be performing technician duties as a representative of a military organization. Rather, we held that the meaning of the phrase "duties as a technician" in section 709(b)(3) does not include third-party proceedings. Id. Similarly, section 6-4 would apply when a technician appears as a grievant or a witness on behalf of any party before the Authority, FSIP, or an arbitration proceeding. Such activities do not constitute performance of technician duties. See, e.g., National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 522-23 (1987) (Proposals 6 and 7) (National Guard Bureau, Adjutant General); National Association of Government Employees, Local R3-84, SEIU, AFL-CIO, and District of Columbia Air National Guard, 23 FLRA 536, 539-40 (1986) (NAGE, Local R3-84). Consequently, we find that the Agency has not shown that section 6-4 is inconsistent with law.

      Section 6-2 provides union officials and employees with a reasonable amount of official time to change clothes prior to and subsequent to performing the activities set forth in section 6-4. The Authority has held previously that provisions which provide reasonable official time for employees to change from and into their uniforms before and after engaging in labor-management activities or third party proceedings are negotiable. For example, in NAGE, Local R3-84, 23 FLRA 536, the proposal provided that both employee technicians and union officials would have reasonable time to change from and into their uniforms before and after engaging in labor-management activities and third party proceedings. There, the Authority explained that proposals that provide official time for technicians to prepare for such activities are negotiable. Id. at 540. Similarly, in National Guard Bureau, Adjutant General, 26 FLRA at 524 (Proposal 7), the Authority held that a proposal that provided union officials reasonable official time to change from and into their uniforms before and after engaging in labor-management activities, which included third party proceedings, was negotiable. The Authority also held that, because the proposal was concerned with official time rather than duty time, the proposal could not violate the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Id. Like the proposal in that case, section 6-4 here is concerned with official time rather than duty time. Accordingly, we find that section 6-4 does not violate the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. [n6] In this regard, we find that the Agency's reliance on ACT, 26 FLRA 682, for the proposition that section 6-2 is contrary to management's [ v56 p496 ] right to assign work, is misplaced. Although the Agency does not cite to a specific proposal addressed by ACT, we assume that the Agency relies on Proposal 10 (ACT, 26 FLRA at 687-88) because it addressed the assignment of work. We find that proposal inapplicable here because it did not concern official time for employees engaged in labor-management activities or third party proceedings, but involved the agency's ability to assign work to employees who are in a work status.

      Consistent with Authority precedent, we find that Provision 1 is not inconsistent with section 709 or management's right to assign work under the Statute. [n7] Accordingly, we order the Agency to rescind its disapproval of the provision.

III.     Provision 2

Article 16 - Leave
. . . .
16.1. General
     b . . . .
          1.     Once leave has be[en] approved and the employer has a compelling need to cancel the previously approved leave, the employer agrees not to subject the employee to a loss of funds expended in the planning of the leave (i.e., hotel reservations, airline tickets, etc.). The employee will demonstrate the unavoida[bility] of the loss of funds.

A.     Post-Petition Conference Summary

      The post-petition conference did not demonstrate any further discussion of Provision 2.

B.     Positions of the Parties

1.     Agency

      The Agency contends that Provision 2 is contrary to law because it requires the Agency, "through appropriated funds," to reimburse employees for lost personal travel expenses. In support, the Agency cites, among other cases, Matter of: Earl J. Barlow, Comp. Gen. Decision B-241249 (1991) (Earl J. Barlow), and Matter of: John W. Keys, 60 Comp. Gen. 629 (1981) (John W. Keys). As related to that argument, the Agency contends that the Comptroller General decisions create a "Government[-]wide rule or regulation" that renders Provision 2 nonnegotiable under section 7117(a)(1) of the Statute. Statement of Position at 19. The Agency distinguishes the aforementioned Comptroller General decisions from National Association of Government Employees, Local R4-26 and Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 118 (1991) (Langley AFB) (Proposal 1), which it states involved reimbursements paid from nonappropriated, as opposed to appropriated, funds. The Agency also contends that Provision 2 is inconsistent with the Antideficiency Act, 31 U.S.C. § 1341. [n8] 

      The Agency contends that it would have authority to pay for an employee's canceled travel costs only if the United States Government, rather than the employee, receives the primary benefit for the expenditure of appropriated funds. In support, the Agency cites Matter of: Alvin N. Kirsch, B-231458 (1988), and National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986). See Reply at 2-3. The Agency concludes that the expenses required by Provision 2 "do not meet the test for reimbursement provided for by regulation." Id. at 3.

2.     Union

      The Union contends that "[t]he Comptroller General decisions referenced by the agency do not prohibit the reimbursements required by Provision 2, for two reasons." Response at 5.

      First, the Union argues that the Statute "gives agencies authority" to make binding contractual obligations that allow expenditures of the sort involved in Provision 2. The Union adds that the Comptroller General [ v56 p497 ] decisions cited by the Agency are not on point because they do not involve negotiated provisions of a collective bargaining agreement that provided authority to make such expenditures. Id. at 6. The Union cites National Federation of Federal Employees, Council of VA Locals and U.S. Department of Veterans Affairs, Washington, D.C., 49 FLRA 923 (1994), for the proposition that agencies may negotiate collective bargaining provisions that authorize an expenditure of funds even though a law or regulation does not expressly authorize such an expenditure. The Union argues that Provision 2 does not violate the Antideficiency Act because "collective bargaining agreements are `authorized by law,'" within the meaning of that statute. Response at 9.

      Second, the Union contends that Comptroller General decisions are not law, rule, or regulation consistent with the definition of section 7117(a)(1) of the Statute. As such, the Union argues that the Authority is not required by Comptroller General decisions to find that Provision 2 is contrary to law.

C.     Meaning of the Provision

      The parties do not dispute the meaning of the provision. Consistent with its plain wording, the provision would require the Agency to pay an employee for certain losses of funds, resulting from the employer's cancellation of previously approved leave.

D.     Analysis and Conclusions

      The disbursement of appropriated funds must be authorized by statute. [n9] See, e.g., National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service Region 6, Portland, Oregon, 46 FLRA 145, 156 (1992) (proposal that was inconsistent with regulatory conditions governing the granting of performance awards held nonnegotiable), citing National Association of Regional Councils v. Costle, 564 F.2d 583, 586 (D.C. Cir. 1977) ("[g]overnment agencies may only enter into obligations to pay money if they have been granted such authority by Congress[.]"). Thus, the use of appropriated funds to reimburse employees for travel expenses must be authorized by statute. The payment of employee travel expenses is governed by provisions of the Travel Expenses Act, 5 U.S.C. § 5701, et seq., and its implementing Federal Travel Regulations, 41 C.F.R. §§ 301-304. Professional Airways Systems Specialists and U.S. Department of the Navy, Marine Corps Air Station, Cherry Point, North Carolina, 38 FLRA 149, 152 (1990). The Comptroller General administers and interprets the Travel Expense Act and its implementing regulations. BATF, 464 U.S. at 106; Naval Public Works Center, San Diego and National Association of Government Employees, Local R12-35, 34 FLRA 750, 754 (1990). Accordingly, we will look for guidance to decisions of the Comptroller General to determine whether the Agency has authority to reimburse employees in the circumstances presented here.

      The Comptroller General has consistently held that purely personal expenses, such as forfeited hotel room deposits, dependents' travel costs, and increased costs for alternate flight reservations, may not be reimbursed upon the cancellation of approved annual leave. See Earl J. Barlow, Comp. Gen. Decision B-241249 (employee who purchased non-refundable airline ticket in anticipation of annual leave may not be reimbursed the cost of the ticket when employee's official duties caused his leave to be canceled), citing John W. Keys, 60 Comp. Gen. 629 (Comptroller General determined that "there is no authority" to reimburse employee for additional personal travel expenses incurred when employee's official duties caused him to make alternative flight reservations).

      To the extent that travel expense determinations are discretionary, agencies are required to bargain about how that discretion will be exercised. See, e.g., Department of the Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381, 1385 (D.C. Cir. 1988) (agency was required to bargain to the extent of its discretion over union's proposal to pay travel expenses incurred by employees while using official time). However, given the nature of the reimbursement at issue in this case, we agree with the Comptroller General that no authority exists for agencies to use appropriated funds to reimburse employees for purely personal expenses involved in the planning of leave. As such, the Agency correctly disapproved Provision 2 in this case. Accordingly, we dismiss the Union's petition. [n10] 

IV.     Order

      We order the Agency to rescind its disapproval of Provision 1. We dismiss the petition for review with respect to Provision 2.



Footnote # 1 for 56 FLRA No. 77

   The Union requests that section 6-2(f) be severed from 6-4(g), and that 6-4(g)(1) be severed from 6-4(g)(2). See Petition for Review at 4. The Agency does not oppose the Union's request.


Footnote # 2 for 56 FLRA No. 77

   The Authority's decision for O-NG-2444 has been issued. See Association of Civilian Technicians, Roughrider Chapter and U.S. Department of Defense, North Dakota National Guard, Bismark, North Dakota, 56 FLRA 256 (2000) (North Dakota National Guard). Case Number 0-NG-2510 is pending with the Authority.


Footnote # 3 for 56 FLRA No. 77

   We note that the version of section 709 on which the Agency relies was amended on October 5, 1999. See National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65, § 524, 113 Stat. 512, 599 (1999). The amendment was designed, in part, to authorize the Secretaries of the Army and Air Force to employ non-dual status technicians in the National Guard. See H.R. Rep. No. 106-162, § 525, 1999 WL 331881. By its terms, the amendment was to take effect 180 days after receipt by Congress of a plan or report relating to the hiring of non-dual status technicians. The amendment added a new section 709(b)(4) which provides that dual status technicians "[w]hile performing duties as a military technician (dual status), wear the uniform appropriate for the member's grade and component of the armed forces." None of the parties apprised the Authority of this amendment or whether it is currently in effect. Under these circumstances, we continue to apply section 709(b)(3). However, even if the amendment were in effect, it would not alter the result we reach in this case in view of the substantial similarity in language between sections 709(b)(3) and 709(b)(4) and the absence of any legislative history warranting a different result.


Footnote # 4 for 56 FLRA No. 77

   As relevant here, 32 U.S.C. § 709 provides:

      Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsection (b) of this section persons may be employed as technicians in-

     (1)     the administration and training of the National Guard; and
     (2)     the maintenance and repair of supplies issued to the National Guard or the armed forces.
(b)     A technician employed under subsection (a) shall, while so employed--
(1)     be a member of the National Guard;
(2)     hold the military grade specified by the Secretary concerned for that position; and
(3)     wear the uniform appropriate for the member's grade and component of the armed forces while performing duties as a technician.

See 32 U.S.C. § 709 (1994 & Supp. II 1996) (amended 1999).


Footnote # 5 for 56 FLRA No. 77

   The Agency also cites to section 709's legislative history, H.R. Conf. Rep. No. 104-450, at 1695 (1996):

Wearing of uniform by National Guard technicians (sec. 1038)
     The Senate amendment contained a provision (sec. 333) that would require military technicians to wear military uniforms in their jobs . . .
The House bill contained no similar provision.
The House recedes.

Statement of Position at 6 (emphasis in original).


Footnote # 6 for 56 FLRA No. 77

   The Authority has held that, notwithstanding the "breadth and effect that the Court has ascribed to the phrase `nothing in this chapter,' it is necessary to `carve out an exception to section 7106(a)' to maintain the negotiability of matters involving official time under section 7131(d) of the Statute." See U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 152 n.7 (1997) (citations and internal quotations omitted). Accordingly, we reaffirm our long-standing statutory interpretation that the right of management to exercise its rights under section 7106(a) of the Statute does not predominate over the provisions in this case, which were negotiated under section 7131(d) of the Statute.


Footnote # 7 for 56 FLRA No. 77

   In light of this result, there is no need to address the Union's 7106(b)(1) claim, or its request to sever.