[ v13 p60 ]
13:0060(13)NG
The decision of the Authority follows:
13 FLRA No. 13
NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER 208
Union
and
NUCLEAR REGULATORY COMMISSION
Agency
Case No. O-NG-283
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 issues
concerning the negotiability of two Union proposals. Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
4. In the event that an employee is ordered to travel outside
normal duty hours in order to be at a site when it opens, he/she
shall be considered in a pay status for the travel period, for
which he/she shall be entitled to enter overtime pay or
compensatory time. The same situation would exist on return
travel should the employee be ordered to travel outside of duty
hours. (This is in accordance with NRC Appendix 4136 Part VII
B.2.d in that the event (the opening and closing of the site) is
scheduled or controlled by someone outside of the Executive Branch
of Government.)
Question Before the Authority
The question is whether Union Proposal 1 is inconsistent with Federal
law and, therefore, outside the duty to bargain under section 7117(a)(1)
of the Statute, /1/ as alleged by the Agency.
Opinion
Conclusion and Order: Union proposal 1 is not inconsistent with Federal
law and is within the duty to bargain under section 7117(a)(1) 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 Union
Proposal 1. Reasons: The record indicates that, in exchange for the
reopening of one nuclear waste disposal site in each of their states by
the Governors of Washington and Nevada, the Agency agreed to furnish
full time, instead of periodic, inspection services at the sites to
insure adherence to Agency regulations. The Agency subsequently
provided the agreed upon services by detailing an inspector to each site
for a one week, Monday through Friday, tour of duty from a regional
office located in a suburb of San Francisco. Union Proposal 1 would
require that when the detailed inspectors must travel outside their
normal duty hours in order to be present during the hours of operation
of the disposal sites, the inspectors shall be in a pay status.
Applicable Federal law, 5 U.S.C. 5542(b)(2)(B), /2/ specifies that
one of the limited circumstances under which hours outside of normal
working hours spent in a travel status away from an employee's official
duty station are hours of employment is if the travel "results from an
event which could not be scheduled or controlled administratively." The
question of whether the instant proposal is inconsistent with law turns
on whether the "event" from which the travel in question results is
administratively uncontrollable.
The Agency contends that the "event" requiring travel is the
previously mentioned agreement between the Agency and the two Governors,
and concludes that as a party to that agreement it "clearly has
administrative control generally over the agreement and specifically
over the hours of duty established to meet the terms of the agreement."
This conclusion is not supported in the record. Rather, insofar as
appears from the record, the terms of the agreement would require
inspectors to be present during the hours of operation of the disposal
sites. Therefore, it is the establishment of the hours of operation at
each site which is the "event" from which travel outside employees'
normal duty hours directly would result. The Agency effectively
concedes in the record that the hours of operation at the sites are not
matters within its administrative control but are set by a private
commercial firm independent of the Agency. /3/ Thus, the circumstances
herein are distinguishable from those in the Court of Claims case /4/
and Comptroller General decisions /5/ relied upon by the Agency, in that
the cited cases involved circumstances wherein management retained
partial or complete control over the event requiring travel.
Accordingly, it is concluded that the exception set forth in 5 U.S.C.
5542(b)(2)(B)(iv) is applicable to the circumstances herein and,
therefore, the proposal is not inconsistent with Federal law.
The Agency notes that Union Proposal 1 would require overtime
compensation for travel both to and from the disposal sites and asserts
that the entitlement to such compensation for travel to the site is not
controlling as to travel from the site. While the Agency's position is
correct, under applicable regulations, where an employee completes his
or her temporary assignment located away from the employee's duty
station at close of business on Friday and departs immediately (or
shortly) thereafter for his or her residence-- as is the case here--
such travel, outside the employee's regular work hours, is to be
considered hours of employment. In this regard, pursuant to its
responsibility under 5 U.S.C. 5548(a), the Office of Personnel
Management (OPM) has issued regulations and guidance governing the
administration of overtime. In Federal Personnel Manual Supplement
990-2, Book 500, Subchapter S1 (1983), "Premium Pay", OPM has provided
examples of travel resulting from an event which cannot be scheduled or
controlled administratively. Among the examples provided is the
following (at 550-13):
. . . when a training course is conducted by an institution
outside the Government, it is an event which cannot be scheduled
or controlled administratively and required travel outside the
employee's regular work hours to attend the training course will
be considered hours of employment.
. . . .
. . . if the employee (whose regular hours of work are 8 a.m. to 5
p.m., Monday through Friday) completes the course at 5 p.m.
Friday, his travel on either Friday night or Saturday (depending
on availability of transportation) will be payable, because, under
a decision of the Comptroller General (B-160258, November 21,
1966), he is not entitled to per diem if he should remain until
Monday, and thus, his travel time cannot be controlled
realistically.
This example is analogous to the circumstances of this case, where
overtime compensation is sought for travel after completion of work
assignments on Friday. Hence it is concluded that such compensation
would not be inconsistent with governing regulations.
For the reasons stated, Union Proposal 1 is not inconsistent with
applicable Federal law or regulations and therefore is within the
Agency's duty to bargain.
Union Proposal 2
5. Employees shall be considered in a per diem status from the
time they leave for the site until the time they return, unless
they elect to go into a previously approved leave status during
the tour of duty.
Question Before the Authority
The question is whether Union Proposal 2 is inconsistent with a
Government-wide regulation and, therefore, not within the duty to
bargain under section 7117(a)(1) of the Statute, as the Agency alleged.
Opinion
Conclusion and Order: Union Proposal 2 is not inconsistent with a
Government-wide regulation and, hence, is within the duty to bargain
under section 7117(a)(1) 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 Union Proposal 2. Reasons: The Agency
asserts that the proposal would conflict with the Federal Travel
Regulations, issued pursuant to 5 U.S.C. 5707(a), under which a Federal
employee would not be entitled in a number of situations to receive per
diem payments for the full period of his or her travel. The Agency
characterizes the proposal as requiring per diem payments in
contravention of applicable regulations. But according to the Union,
the proposal would merely require employees to be considered in a status
for which they could be paid per diem so far as would be consistent with
applicable regulations from the time they leave for the site until the
time they return: as the Union concedes, however, "the question as to
whether the employee would be compensable in that status remains an
issue of application of the travel regulations and the proposal
together." Thus, insofar as the proposal would not require disbursements
which would be inconsistent with applicable regulations but, instead,
merely would require that covered employees receive all allowable per
diem payments, in the circumstances described, under applicable
regulations, Union Proposal 2 is within the duty to bargain. /6/
Issued, Washington, D.C., September 22, 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 as follows:
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/ 5 U.S.C. 5542(b)(2)(B) provides as follows:
Sec. 5542. Overtime rates; computation
. . . .
(b) For the purpose of this subchapter--
. . . .
(2) time spent in a travel status away from the official duty
station of an employee is not hours of employment unless--
. . . .
(B) the travel (i) involves the performance of work while
traveling, (ii) is incident to travel that involves the
performance of work while traveling, (iii) is carried out under
arduous conditions, or (iv) results from an event which could not
be scheduled or controlled administratively.
/3/ Agency clarification in response to request by the Authority, in
which it stated: "Both the Washington and Nevada waste disposal sites
are operated by a private commercial firm . . . which sets its own hours
of operation independent of the (Agency). There are no (Agency)
regulations or agreements which govern or control the hours of
operation."
/4/ Barth v. United States, 568 F.2d 1129 (Ct. Cl. 1978).
/5/ Matter of Dept. of Labor, B-190494, May 8, 1979; Matter of Mark
Burstein, B-172671, March 8, 1977; and 51 Comp.Gen. 727 (1972).
/6/ In finding Union Proposal 1 and 2 within the duty to bargain, the
Authority makes no judgment as to their merits.