[ v17 p890 ]
17:0890(116)NG
The decision of the Authority follows:
17 FLRA No. 116
MARITIME METAL TRADES
COUNCIL
Union
and
PANAMA CANAL COMMISSION
Agency
Case No. 0-NG-946
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 five Union proposals. Upon careful
consideration of the entire record, including the parties' contentions,
/1/ the Authority makes the following determinations.
Union Proposal 1
Professional employees are authorized to cash personal checks
at the Commission's Treasury or its branches in amounts up to
$1,000.00. Two returned checks not the fault of the banking
institution will be cause for revocation of personal check cashing
privileges for a period up to six months.
Union Proposal 2
The Commission will do everything it can to see that
professional employees are authorized to cash personal checks at
the Commission's Treasury or its branches in amounts up to
$1,000.00. Two returned checks not the fault of the banking
institution will be cause for revocation of privileges for a
period up to six months. The Commission will report to the Union
weekly on its progress in achieving this goal.
Union Proposal 1 would authorize professional employees personal
check cashing privileges at the Agency's Treasury and/or its branches of
up to $1000.00. Union Proposal 2 would require the Agency to do
everything it can to ensure this result if the Agency ascertains that
the proposal could not be implemented due to the regulations of an
outside authority. The record indicates that presently employees have
limited check cashing privileges at the Agency.
The sole contention of the Agency is that personal check cashing is
not a condition of employment within the meaning of section 7103(a)(14)
of the Statute, and therefore is outside the scope of bargaining. The
Union contends that personal check cashing is a condition of employment,
and, alternatively, that the Agency's past practice of providing
personal check cashing privileges makes such matter a condition of
employment.
The duty to bargain under the Statute extends only to "conditions of
employment," i.e., personnel policies, practices and matters affecting
working conditions. In construing that statutory phrase, the Authority
has found proposals which concern matters directly affecting "the work
situation and employment relationship" of bargaining unit employees to
be within the duty to bargain. E.g., National Treasury Employees Union
and Internal Revenue Service, 3 FLRA 693 (1980). See also American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 606 (1980),
enforced as to other matters sub nom. Department of Defense v. Federal
Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied
sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982).
By their terms and effect, the disputed proposals do not concern
personnel policies, practices, or matters affecting working conditions
of unit employees. In this regard, the Authority concludes that
personal check cashing is a matter which has no direct relationship to
the work situation and the employment relationship of unit employees.
Rather, such matter principally relates to activities of employees
involved in non-work activities while in non-duty status. Cf.
International Association of Fire Fighters, AFL-CIO, CLC, Local F-116
and Department of the Air Force, Vandenberg Air Force Base, California,
7 FLRA 123 (1981) (wherein the Authority concluded that a proposal
requiring the agency to grant off-duty personnel and their dependents
hunting and fishing recreation on the facility did not concern matters
which were a condition of employment because there was no relationship
to the work situation or employment relationship) and National
Federation of Federal Employees, Local 1363 and United States Army
Garrison, Yongsan, Korea, 12 FLRA 635 (1983) (wherein the Authority
concluded that a proposal regarding the dispensation of alcoholic
beverages in NAFIs did not concern matters which were conditions of
employment within the meaning of section 7103(a)(14) of the Statute,
since such matters principally relate to activities of employees
involved in non-work activities while in non-duty status).
The Union asserts its proposals are to the same effect as the
proposal in National Federation of Federal Employees, Local 1363 and
Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA 139 (1980),
enforced sub nom. Department of Defense, Department of the Army v. FLRA,
685 F.2d 641 (D.C. Cir. 1982), wherein the Authority concluded that the
matter of ration control was a "condition of employment" within the
meaning of section 7103(a)(14) of the Statute. Such matter was found to
be directly related to the "reasonable standards of health and decency"
for unit employees serving in certain locations required by an agency
policy as a precondition to the employment relationship. In the
circumstances of the present case, to the contrary, the policies of the
Agency regarding personal check cashing privileges have not been shown
in the record to be a precondition to the employment relationship.
Nor can the Union's additional argument that personal check cashing
has become a condition of employment because of the Agency's past
practice of providing this service be sustained. The mere fact that an
agency may unilaterally provide such a service does not, per se, make
such a matter a condition of employment subject to the duty to bargain
under the Statute, i.e., a personnel policy or practice or matter
affecting working conditions of employees in the bargaining unit. Cf.
National Association of Air Traffic Specialists and Department of
Transportation, Federal Aviation Administration, 6 FLRA 588 (1981)
(Union Proposal 4) (wherein the Authority concluded that the mere fact
that an agency may, pursuant to statutory authority, permit payroll
allotments for any legal purpose does not mean that all such allotments
constitute conditions of employment over which it has a duty to
bargain).
Hence, the Authority finds that the disputed proposals regarding
personal check cashing privileges do not concern matters which are
conditions of employment within the meaning of section 7103(a)(14) of
the Statute. Therefore, the Agency is not obligated to bargain with
respect to the proposals.
Union Proposal 3
The Commission hereby adopts the travel regulations of the
Department of State applicable to Federal Government employees
working overseas.
Union Proposal 4
The Commission will do everything it can to adopt the travel
regulations of the Department of State applicable to Federal
Government employees working overseas. The Commission will make
quarterly reports to the Union on its progress in achieving the
goals set forth in this article.
Union Proposal 3 would require the Agency to adopt the travel
regulations of the Department of State applicable to that agency's
employees working overseas. Union Proposal 4 would require the Agency
to do everything it can to ensure this outcome. Presently, the Agency
follows the Federal Travel Regulations (FTRs) which 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. The Union's stated purpose of these proposals is to
have the Agency supplant its present policy of following the FTRs with a
policy of following State Department regulations instead.
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. 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).
See American Federation of Government Employees, AFL-CIO, Local 3483 and
Federal Home Loan Bank Board, New York District Office, 13 FLRA 446
(1983).
The Union contends that, since the Agency here, before the passage of
the Panama Canal Act of 1979, was a government controlled corporation
and therefore was not covered under the FTRs issued under the authority
of 5 U.S.C. 5701-5709, it is questionable whether Congress intended the
Agency to come under the FTRs by the passage of the Panama Canal Act.
However, the Union's contention is without merit. The passage of Panama
Canal Act of 1979 converted the Agency into an executive agency. Panama
Canal Act, Pub. L. No. 96-70, Sec. 1101, 93 Stat. 452, 456 (1970).
Chapter 57 of title 5 grants, in relevant part, executive agencies the
authority to provide travel expenses to their employees pursuant to the
FTRs, the regulations implementing that statutory provision. Therefore,
the Agency here, as an executive agency, must follow the FTRs. /2/
Union Proposal 3, thus, is contrary to Government-wide regulations and,
consequently, outside the duty to bargain.
According to the Union's stated intent, Union Proposal 4 would
require the Agency to do whatever it can, including suggesting to
Congress that a legislative change permitting the Agency to adopt the
travel regulations of the Department of State is advisable. The
Authority has held in American Federation of Government Employees,
AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C.,
8 FLRA 409 (1982), that matters specifically provided for by law or
which would require modification of existing legal or regulatory
provisions are not within the duty to bargain. According to the
reasoning in the Office of Personnel Management case, proposals
concerning influencing the content of Government-wide regulations to
affect conditions of employment are outside the duty to bargain because
the relationship between such efforts, on one hand, and changes in
personnel policies, practices, and matters affecting working conditions,
on the other hand, is, at best remote and speculative. Since, as stated
earlier, the FTRs are Government-wide regulations within the meaning of
section 7117(a), the Agency has no obligation to bargain over their
modification for the reasons more fully set forth in Office of Personnel
Management.
Union Proposal 5
The Commission will do everything it can to see that a
professional employee shall continue to receive official mail at
his work station. Official mail includes, but is not limited to,
letters, journals, magazines and newspapers which relate to the
employee's performance of his official duties.
The purpose of the Union's proposal is to define what material
constitutes official mail, i.e., mail which relates to the employee's
performance of official duties. In National Treasury Employees Union
and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA
255 (1979), the Authority held that in the context of section 7106(b)(1)
/3/ the "means" of performing work refers to any instrumentality,
including an agent, tool, device, measure, plan, or policy used by the
agency for the accomplishing or the furthering of the performance of its
work. Cf. American Federation of Government Employees, AFL-CIO, Local
1858 and Department of the Army, U.S. Army Missile Command, Redstone,
Arsenal, Alabama, 10 FLRA 440 (1982) (Union Proposal 3) (a proposal
requiring the acquisition and/or use of certain taped documents and
teletype-writer equipment, clearly concerned the "technology, methods,
and means of performing work" within the meaning of section 7106(b)(1)
of the Statute).
It is clear that under section 7106(b)(1) of the Statute the Agency
has the right to determine the tools used in performance of the Agency's
work. In this respect, the Authority concludes, in agreement with the
Agency, that Union Proposal 5 insofar as it would establish what outside
information is necessary to perform official duties and, thus, the tools
to be used in performing the Agency's work, violates the Agency's right
to determine its means of performing work under section 7106(b)(1) of
the Statute. /4/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed.
Issued, Washington, D.C., May 8, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Union requests a hearing before the Authority apparently
based on certain alleged factual discrepancies in the record, such as
availability of banking facilities for bargaining unit employees.
However, such information is not relevant to a determination of whether
a matter is within the scope of bargaining under the Statute, i.e.,
consistent with law or applicable rule or regulation. Further, it is
well established that the parties bear the burden of directing the
Authority to the laws, regulations and other authorities relevant to the
statutory obligation to bargain. National Federation of Federal
Employees, Local 1167 v. FLRA, 681 F.2d 886 at 891 (D.C. Cir. 1982),
affirming National Federation of Federal Employees, Local 1167 and
Department of the Air Force, Headquarters, 31st Combat Support Group
(TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981).
/2/ In this respect, the Authority, contrary to the Union's argument,
agrees with the Agency's contention that the educational travel benefits
specifically provided for in the Panama Canal Act at section 1207
indicate that when Congress intended to exempt the Agency from the FTRs,
such intent was clearly expressed.
/3/ Section 7106 provides in relevant part:
Sec. 7106. Management rights
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, . . . on the technology,
methods, and means of performing work(.)
/4/ In view of this decision, it is unnecessary to address the
additional contentions of the Agency with respect to the negotiability
of the proposals.