30:0677(84)NG - NTEU and HHS, Family Support Administration -- 1987 FLRAdec NG

30 FLRA NO. 84
 30 FLRA 677 (1987)

31 DEC 1987

NATIONAL TREASURY EMPLOYEES
UNION

              Union

      and

FAMILY SUPPORT ADMINISTRATION,
DEPARTMENT OF HEALTH AND
HUMAN SERVICES

             Agency

Case No. O-NG-1409

DECISION AND ORDER ON NEGOTIABILITY ISSUES

     I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor - Management Relations Statute (the Statute) and concerns
the negotiability of three proposals. We find that the first
proposal concerning reimbursement for parking expenses is
nonnegotiable because it violates law and regulation. The second
proposal regarding relocation expenses is nonnegotiable because
it conflicts with the Federal Travel Regulations. The third
proposal concerns provision of day care and payment of day care
expenses and is negotiable.

     II. Proposal 1

     All employees moved from Rockville to D.C. will be
reimbursed for their parking expenses to the extent that they
exceed parking costs in Rockville.

     A. Position of the Parties

     The Agency argues that this proposal is outside the duty to
bargain because it is inconsistent with Federal law and
Government-wide regulations. In support, the Agency relies on
American Federation of Government Employees, AFL - CIO,
council 236 and General Services Administration, 9 FLRA  825
(1982), where the Authority found nonnegotiable a proposal which
guaranteed that employees would not suffer financial losses due
to increased commuting costs, including higher parking fees.

     The Union argues that parking fees are a mandatory subject
of bargaining. In support, the Union relies on United States
Department of the Treasury, Internal Revenue Service, and United
States Department of the Treasury, Internal Revenue Service,
Houston District and National Treasury Employees Union, and
National Treasury Employees Union, Chapter 222, 25 FLRA  843
(1987) and on American Federation of Government Employees, Local
644 AFL - CIO and U.S. Department of Labor, Occupational Safety
and Health Administration, 21 FLRA  658 (1986) (Proposals 6 and
11). In addition, the Union claims, without any supportive
argument, that this proposal is an appropriate arrangement under
section 7106(b)(3) of the Statute.

     B. Analysis and Conclusion

     The payment of employee travel expenses is governed by
provisions of the Travel Expense Act, specifically 5 U.S.C.
5701-5702, 5704, and 5706-5707, and the Federal Travel
Regulations (FTRs), 41 C.F.R. Part 101-7. See National Council of
Field Labor Locals, Local 2513 AFGE and U.S., Department of
Labor, Employment Standards Administration, Region 2, 29 FLRA 
451 (1987). The Comptroller General administers and interprets
the Travel Expense Act and its implementing regulations. Bureau
of Alcohol, Tobacco and Firearms v. FLRA,  464 U.S. 89,  106
(1983); National Treasury Employees Union and Department of the
Treasury, U.S. customs Service, 21 FLRA  6, 10 (1986).

     The Comptroller General has held that absent express
statutory or regulatory authorization, the established rule is
that Federal employees must bear as personal commuting expenses
all costs of transportation, including parking fees, between
their residences and their official duty stations. For example,
60 Comp. Gen. 420 (1981). However, under 5 U.S.C. 5704(b) and the
FTRs, an employee who is engaged in official business for the
Federal Government may be reimbursed for various travel expenses
including parking fees. Travel expenses, including parking fees,
which are reimbursable are confined to those expenses which are
actual and necessary, 5 U.S.C. 5706, and which are essential to
 the transacting of official business, FTR 1-1.3b.
Further, the method of transportation selected for performance of
official business must be advantageous to the Government. FTR
1-2.2b.

     Proposal 1 requires the Agency to reimburse employees for
additional parking fees incurred solely due to an office
relocation. There is nothing in the record which indicates that
employees in this case are required to use their personal
vehicles for official Government business. Thus, we find that
Proposal 1 would require the Agency to reimburse employees for
personal commuting expenses. Consequently, Proposal 1 is
inconsistent with the Travel Expense Act and the FTRs and is
nonnegotiable. See American Federation of Government Employees,
AFL - CIO, Council 236 and General Services Administration, 9
FLRA  825 (1982)(Proposal 3).

     In reaching this conclusion, we find this case to be
distinguishable from the cases cited by the Union. The Charging
Party in Internal Revenue Service Houston District was not
seeking reimbursement of commuting costs but only the continued
availability of free or low cost parking spaces. Occupational
Safety and Health Administration also concerned whether the
Agency would provide parking spaces for employees. Therefore,
neither of these cases concerned the reimbursement of personal
parking expenses.

     Thus, as this proposal is inconsistent with law, it is
outside the duty to bargain under section 7117(a)(1) of the
Statute. Since section 7106(b)(3) applies only when management
exercises one of the reserved rights set out elsewhere in section
7106, it is unnecessary for us to address the Union's claim that
this proposal constitutes an appropriate arrangement. See
National Federation of Federal Employees, Local 29 and Department
of the Army, Kansas City District, Corps of Engineers, 21 FLRA 
228 (1986).

     III. Proposal 2

     Employees who have to commute an additional half hour each
way and whose total commuting time is one hour or more each way
will be granted relocation expenses. 

     A. Position of the Parties

     The Agency argues that the proposal is inconsistent with the
FTRs and with an agency regulation for which compelling need
exists.

     The Union argues that the FTR gives agencies the discretion
to determine when to reimburse employees for relocation of their
residences resulting from a change in their official duty
stations. According to the Union, this proposal merely provides
the criteria for the Agency to make that decision. The union also
argues, in general, that this proposal constitutes an appropriate
arrangement under section 7106(b)(3) of the Statute.

     B. Analysis and Conclusion

     Chapter 2 of the FTRs sets out the general rules whereby
employees may be reimbursed for relocation expenses resulting
from, among other circumstances, permanent changes in duty
stations. Under FTR 2-1.5b, travel and relocation expenses
allowed in connection with the employee's relocation of his/her
residence "shall be authorized only when the agency determines
that the relocation of the employee's residence was incident to
the change of official duty station." This section provides that
in determining whether to authorize relocation expenses, an
agency shall take into account such factors as the difference in
the commuting time between the employee's residence and his/her
old post of duty at the time of notification of transfer and the
commuting time and distance between a proposed new residence and
the new post of duty. Further, this section specifically states
as follows:

     Ordinarily, a relocation of residence shall not be
considered as incident to a change of official duty station
unless the one-way commuting distance from the old residence to
the new official station is at least 10 miles greater than from
the old residence to the old official station. Even then,
circumstances surrounding a particular case (e.g., relative
commuting time) may suggest that the move of residence was not
incident to the change of official station.

     Proposal 2, however, expressly requires the Agency to base a
determination on whether to grant relocation expenses solely on
additional commuting time. Consequently, Proposal 2]
conflicts with the FTRs, which previously have been held to be
Government-wide regulations within the meaning of section
7117(a)(1) of the Statute. See National Federation of Federal
Employees, Local 29 and U.S. Army Engineer District, Kansas City,
Missouri, 13 FLRA  23 (1983). Therefore, this proposal is not
within the duty to bargain.

     In view of this conclusion, it is unnecessary to address the
Agency's additional claim that a compelling need exists for an
Agency regulation. Further, inasmuch as this proposal is
nonnegotiable because it is inconsistent with a Government-wide
regulation, we do not need to address the Union's argument that
the proposal constitutes an appropriate arrangement under section
7106(b)(3) of the Statute. See Kansas City District, Corps of
Engineers, 21 FLRA  228.

     IV. Proposal 3

     Daycare will either be provided or paid for the children of
all relocated employees requesting such services.

     A. Position of the Parties

     The Agency's sole claim concerning this proposal is that it
is nonnegotiable because it conflicts with law. According to the
Agency, 20 U.S.C. 2564 requires the Department of Health and
Human Services (HHS) to charge appropriate fees for day care
services established for the children of its employees. Thus, the
Agency argues that because this proposal requires free day care
it is inconsistent with 20 U.S.C. 2564.

     The Union argues that the establishment of day care
facilities is negotiable. In support, the Union relies on
American Federation of Government Employees, AFL - CIO, Local 32
and Office of Personnel Management, Washington, D.C., 6 FLRA  423
(1981). The Union also argues that while 20 U.S.C. 2564 provides
that the Department of Health and Human Services (HHS) has the
right to establish fees to pay for the day care services, it does
not state that HHS must charge fees. The Union argues that
because donations can be accepted, the center could run by having
different employees pay different amounts, thus allowing the
possibility that the services be rendered free to some employees.
In addition, it argues that because 20 U.S.C. §§ 2564 is silent
as to reimbursement for outside day care, the Agency has
discretion to bargain on that subject. The Union also
claims that this proposal constitutes an appropriate arrangement
under section 7106(b)(3) of the Statute.

     B. Analysis and Conclusion

     The statute relied upon by the Agency, 20 U.S.C. 2564,
provides that the Secretary of HHS is authorized to establish day
care facilities for the children of HHS employees. The Secretary
is also "authorized to establish or provide for the establishment
of appropriate fees and charges to be chargeable against the
Department employees or others who are the beneficiaries of
services provided by such facilities to pay for the cost of their
operation(.)" Furthermore, "(n)o appropriated funds may be used
for the equipping or operation of any centers provided under this
authority." Thus, it is clear that the Agency may not use
appropriated funds to provide free day care in HHS facilities or
to reimburse employees for the cost of day care provided at non -
HHS facilities.

     There is nothing in the language of the proposal or in the
record which indicates that the Agency would be required to use
appropriated funds for day care expenses. Further, the proposal
does not specify how free day care for affected employees will be
implemented. Although 20 U.S.C. 2564 precludes the Agency from
using appropriated funds to operate day care centers, it does not
mandate or specify the actual amount that particular employees
using the day care services must pay. Rather, the statute leaves
the Agency with discretion to determine the appropriate fees. The
Agency has discretion to charge employees different amounts or to
charge some employees and not others so long as appropriated
funds are not used for the operation of the day care facility. To
the extent that an agency has discretion over a matter that
discretion may be exercised through negotiations. Library of
Congress v. FLRA,  699 F.2d 1280 (D.C. Cir. 1983). We recognize
that the establishment of higher fees for some employees so that
others may pay nothing may be deemed to be unfair. This argument
relates to the merits of the proposal, however, not to its
negotiability. Accordingly, this proposal is not inconsistent
with 20 U.S.C. 2564.

     Since the Agency has raised no  other claim that this
proposal is nonnegotiable, we find that it is within the duty to
bargain. In view of this conclusion, it is unnecessary to address
the Union's additional arguments concerning this proposal. 

     V. Order

     The petition for review as to Proposals 1 and 2 is
dismissed. The Agency must, upon request, or as otherwise agreed
to by the parties, bargain on Proposal 3. 1

     Issued, Washington, D.C., December 31, 1987.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY 


FOOTNOTES

     Footnote 1 In finding Proposal 3 to be negotiable in part,
we make no  judgment as to its merits.