Federal Union of Scientists and Engineers, NAGE Local R1-144 and Naval Underwater Systems Center (Authority decision, February 10, 1987)

Final FLRA decision. The Authority resolves the negotiability of three union proposals and orders bargaining on two of them. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union proposed that the Naval Underwater Systems Center reimburse employees for losses when direct deposit failed, and mail paychecks and earnings statements to addresses employees chose. The Authority found no statutory authorization for reimbursing employees' resulting bank charges, so it held that the reimbursement proposal was outside the duty to bargain. It held that paycheck and earnings statement delivery concerned employee working conditions, following its recent decision on similar Navy proposals. The agency had to bargain on those two delivery proposals upon request.

Decision snapshot

• Authority: Bargaining limits under 5 U.S.C. § 7117(a)(1) and direct deposit authorization under 31 U.S.C. § 3332.
• Outcome: Reimbursement proposal dismissed; paycheck and earnings statement delivery proposals negotiable.
• Key point: The decision treated paycheck delivery as an employee working condition, while finding no authority to reimburse bank penalties.

Full text (FLRA public release)

[ v25 p615 ]

25:0615(48)NG

The decision of the Authority follows:

25 FLRA No. 48

FEDERAL UNION OF SCIENTISTS AND
ENGINEERS, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES, LOCAL R1-144
Union

and

U.S. DEPARTMENT OF NAVY, NAVAL
UNDERWATER SYSTEMS CENTER
Agency

Case No. 0-NG-1138

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 Union proposals. /1/ We find Proposal 1 nonnegotiable and Proposals 2 and 3 negotiable.

II. Proposal 1

The Naval Underwater Systems Center shall be responsible for personal losses of unit employees due to non-deposit of paychecks by Electronic Fund Transfer System.

A. Positions of the Parties

As explained by the Union, the intent of its proposal is to require the Agency to reimburse employees for penalties they incur for insufficient funds in their accounts as a result of the Agency's failure to deposit their paychecks. The Union did not file a Reply Brief in this case.

The Agency contends that in the absence of express statutory authority, it is prevented from making the expenditures required by the proposal and, thus, that the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute.

B. Analysis

The current authorization for the direct deposit of employee paychecks to financial organizations is contained in 31 U.S.C. Section 3332. There is nothing in the express language of this section, which was enacted to replace 31 U.S.C. Section 492, or in its legislative history, indicating that the Government was to be authorized to reimburse employees for service charges on checks drawn on insufficient funds where the Government has undertaken but failed to deposit an employee's paycheck directly with the employee's bank. In this regard, the Comptroller General, interpreting 31 U.S.C. Section 492, which preceded Section 3332, held that specific statutory authority is required to reimburse employees for penalties incurred as a consequence of an agency's failure to deposit employees' paychecks. In Matter of Robert G. Raske, Comp. Gen. Decision No. B-22273 (May 7, 1981), an employee's change of address was processed one pay period earlier than requested, and as a result the employee incurred $129 in overdraft charges. Finding no authorization for reimbursement in the statute (31 U.S.C. Section 492) entitling employees to designate a financial institution to receive their paychecks, the Comptroller General held that the agency could not reimburse the employee for the penalties.

As noted, there is nothing in the express provisions of the currently applicable statute, 31 U.S.C. Section 3332, or in its legislative history, which indicates that Congress sought to provide the specific authorization lacking in 31 U.S.C. Section 492 for an agency to reimburse employees for such expenses. Consequently, in the absence of any demonstration in the record of any statutory authorization for an agency to reimburse employees for charges incurred as the result of an agency's failure to deposit employees' paychecks, the Authority finds that these expenses are the personal responsibility of the employee.

C. Conclusion

For the reason cited in the foregoing analysis, Union Proposal 1 is outside the duty to bargain under section 7117(a)(1) of the Statute.

III. Proposal 2

Paychecks shall be mailed by Federal mail or guard mail (internal mail system) to an employee's designated address before Wednesday noon, payday week.

Proposal 3

Leave and Earnings Statements shall be mailed by Federal mail or guard mail (internal mail system) to an employee's designated address.

A. Positions of the Parties

The Union states that the intent of the proposals is to require the Agency to mail an employee's paycheck and leave and earnings statement to the address designated by the employee by regular mail or the Agency's internal mail system, including the employee's work-place address, if the employee so designates.

The Agency contends that the proposals are nonnegotiable because:

1. The proposals concern the methods and means by which the
   Agency performs its work, under section 7106(b)(1) of the Statute.

2. The proposals are inconsistent with an Agency-wide
   regulation for which a compelling need exists.

3. The proposals do not involve conditions of employment as
   they do not substantially affect bargaining unit employees.

b. Analysis and Conclusion

In the Authority's recently issued Decision and Order on Remand in Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, MareIsland Naval Shipyard, Vallejo, California, 25 FLRA No. 31 (1987), /2/ we reconsidered and reversed the Authority's prior holding that two proposals permitting newly hired bargaining unit employees to receive their paychecks at their work addressed involved the methods and means of performing work and, thus, were negotiable only at the election of the agency, under section 7106(b)(1) of the Statute. In our decision on remand we determined that: (1) The manner of paycheck delivery does not involve the method and means of performing work under section 7106(b)(1) of the Statute; (2) paycheck delivery related principally to conditions of employment under section 7103(a)(14); (3) a compelling need does not exist for the Agency's regulation asserted as a bar to negotiation of the Unions' paycheck delivery proposals; and (4) the Agency failed to establish that paycheck delivery proposals directly interfered with management's rights under section 7106(a)(1) to determine budget and organization or under section 7106(a)(2)(A) and (B) to assign employees, to assign work or to determine personnel. Thus, we concluded that the proposals were within the duty to bargain.

The proposals in this case are to the same effect as the proposals in Mare Island Naval Shipyard. In addition, the Agency raises the same claims as to their negotiability including the claim that a compelling need exists for the same Agency regulation. Consequently, for the reasons stated more fully in Mare Island Naval Shipyard, we conclude that Proposals 2 and 3 in this case are within the duty to bargain.

IV. Order

The Agency must upon request (or as otherwise agreed to by the parties) bargain on Proposals 2 and 3. /3/ The Union's petition for review as to proposal 1 is dismissed.

Issued, Washington, D.C., February 10, 1987. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(1) The Agency, in its Statement of Position, withdrew its allegation of nonnegotiability with respect to a fourth proposal. Therefore, the issue as to this proposal has been rendered moot and will not be considered further.

(2) This decision was issued after the decision of the U.S. Court of Appeals for the Ninth Circuit in Federal Employees Metal Trades Council v. FLRA, 778 F. 2d 1429 (9th Cir. 1985), reversing and remanding Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 16 FLRA 619 (1984) and American Federation of Government Employees, Local 1533 and Department of the Navy, Navy Commissary Store Region, Oakland and Navy Commissary Store, Alameda, California, 16 FLRA 623 (1984).

(3) In finding Proposals 2 and 3 within the duty to bargain we make no judgment as to their merits.