15:0403(85)NG - AFGE Local 3529 and Defense Contract Audit Agency, Chicago, IL -- 1984 FLRAdec NG

 15 FLRA No. 85
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3529
 Union
 
 and
 
 DEFENSE CONTRACT AUDIT AGENCY
 CHICAGO, ILLINOIS
 Agency
 
                                            Case No. O-NG-570
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    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 presents issues
 relating to the negotiability of the following Union proposal:
 
                          Article XIV, Section 5
 
          F. Absence from duty for taking the CPA and Bar Examinations
       will be authorized without loss of pay or charge to leave, as it
       has been determined that such professional qualifications are in
       the best interests of the Agency.  Excused absence may be
       authorized for taking other types of professional examinations
       upon the determination by the Regional Director that such
       professional qualification is in the best interest of the Agency.
       Excused time will include time required to travel to and from the
       point of the examination (and any other required personal
       attendance), but not to exceed a total of sixteen (16) hours
       travel time.  Per diem and/or travel expenses will be authorized
       to sit for the CPA Examination.
 
    Upon careful consideration of the entire record, the Authority makes
 the following determination.  /1/ The Union proposal requires that the
 Agency authorize the payment of per diem and/or travel expenses for the
 purpose of taking the Certified Public Accountant (CPA) examination.
 The Agency contends the proposal is nonnegotiable based on National
 Treasury Employees Union and Department of the Treasury, Internal
 Revenue Service, 6 FLRA 508 (1981).  In that case, Proposal 1 had the
 effect of reimbursing attorneys for all costs incurred in attending
 continuing legal education courses.  The Authority held that the
 proposal violated Federal law and therefore was outside the duty to
 bargain under section 7117(a)(1) of the Statute.  In so holding, the
 Authority noted that the Training Act (5 U.S.C.Chapter 41) established
 the legal basis for reimbursement.  Specifically, that Act limits
 reimbursement to necessary expenses for training directly related to
 official duties.
 
    The Union contends that the Training Act, and thereby the decision in
 Internal Revenue Service, is inapposite to the issue here of whether an
 agency may authorize payment of per diem and/or travel expenses incident
 to taking the CPA examination because the Union contends the CPA
 examination is not subject to the special requirements established for
 training under that Act.
 
    The Training Act, as stated previously, is the basic authority for
 use of appropriated funds to train government employees.  /2/
 Examinations which are not an integral part of a course of instruction,
 or an examination process which is not itself designed to impart
 knowledge and skills to examinees, are not within the definition of
 "training" in the Act.  /3/ However, the fact that the examination in
 question is not covered by the Training Act means that there is no
 authorization for reimbursement of such costs consistent with law.  /4/
 It would appear, based upon the facts in this case, that the examination
 herein is not "training" reimbursable under the Training Act.
 Therefore, based on Internal Revenue Service and the reasons stated
 therein, the Authority concludes that the instant proposal would
 conflict with the statutory limitations of the Training Act as
 implemented by relevant regulation and is outside the duty to bargain as
 inconsistent with that law.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations (5 CFR 2424.10), IT IS ORDERED that the petition for review
 be, and it hereby is, dismissed.
 
    Issued, Washington, D.C., July 31, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Agency requests that the Authority dismiss the Union's
 petition for review.  It contends that the Authority does not have the
 jurisdiction to decide the instant case because the Comptroller General
 is the final arbiter in matters of pay.  However, under the Statute, the
 Authority has complete authority to decide all issues concerning the
 negotiability of a union proposal.  Accordingly, the Agency's request
 for dismissal of the Union's petition on this basis is denied.
 
 
    /2/ 55 Comp.Gen. 759, 760 (1976) and Comptroller General Decision,
 B-187525 (Oct. 15, 1976).
 
 
    /3/ 5 U.S.C. 4101(4) provides as follows:
 
          (4) "training" means the process of providing for and making
       available to an employee, and placing or enrolling the employee
       in, a planned, prepared, and coordinated program, course
       curriculum, subject, system, or routine of instruction or
       education, in scientific, professional, technical, mechanical,
       trade, clerical fiscal, administrative, or other fields which are
       or will be directly related to the performance by the employee of
       official duties for the Government, in order to increase the
       knowledge, proficiency, ability, skill, and qualifications of the
       employee in the performance of official duties(.)
 
    In this regard, see Comptroller General decisions, note 2, supra;
 see also Federal Personnel Manual (FPM) Chapter 410, 6-3d(5)(a), which
 states, in pertinent part:
 
          (a) An examination fee may be paid if the examination is used
       as a diagnostic tool to determine deficiencies in knowledges and
       skills needed by an employee for the performance of official
       duties so as to ascertain his/her training needs when the agency
       is unable to determine those needs through supervisory evaluation
       or other available agency appraisal system or when such evaluation
       or appraisal system would be more costly.  The cost of an
       examination would not otherwise be payable except when the cost of
       the examination is inextricably mixed with the cost of a program
       of training or when the examination process itself is designed to
       impart knowledges and skills to the examinee(.)
 
 
    /4/ See 55 Comp.Gen. 759, 760-61, which states:
 
          While 5 U.S.C. 4109 . . . authorizes agency payment of some or
       all training costs, and while the implementing regulation
       contained in the Federal Personnel Manual, ch. 410, Sec. 6-1(a)
       permits an agency head to define "necessary training expenses" for
       the purpose of payment of those expenses, an agency head is not
       authorized to expand the statutory definition of "training" or to
       pay for items not contemplated by that definition.  Because an
       examination such as the one here involved (bar examination) does
       not fall within the definition of training, no reimbursement is
       possible for fees charged for an examination or for allied costs,
       such as travel and per diem, incurred while taking an exam which
       is not part of a regular course of instruction.