AFGE Council 236 and General Services Administration (Authority decision, August 5, 1982)

Final FLRA decision. This is a final Authority order. 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

AFGE Council 236 proposed terms for employees affected by a transfer of functions within the General Services Administration. The Authority held that required bargaining over position numbers and grades was at the agency’s election, a five-year employment guarantee interfered with the right to lay off employees, and commuting-cost reimbursement conflicted with federal travel law. It dismissed the petition on the merits.

Decision snapshot

• Authority: 5 U.S.C. § 7106(b)(1).
• Outcome: All three proposals held nonnegotiable; petition dismissed.
• Key point: The transfer proposals conflicted with management rights or federal reimbursement limits.

Full text (FLRA public release)

[ v09 p825 ]

09:0825(108)NG

The decision of the Authority follows:

9 FLRA No. 108

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL 236
Union

and

GENERAL SERVICES ADMINISTRATION
Agency

Case No. O-NG-496

DECISION AND ORDER ON NEGOTIABILITY ISSUES

THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).
THE ISSUES PRESENTED ARE THE NEGOTIABILITY OF THREE UNION PROPOSALS.
/1/

UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
THE RECORD REVEALS THAT THE UNION HEREIN REPRESENTS EMPLOYEES CURRENTLY
LOCATED IN THE HEADQUARTERS, NATIONAL ARCHIVES AND RECORDS SERVICE WHO
HAVE BEEN IDENTIFIED WITH A FUNCTION TO BE TRANSFERRED TO THE NATIONAL
CAPITAL REGION OF THE GENERAL SERVICES ADMINISTRATION. IT IS UNDISPUTED
ON THE RECORD THAT THE ORGANIZATIONAL ELEMENT TO WHICH THE EMPLOYEES
WILL BE REASSIGNED IS REPRESENTED BY A LOCAL OF THE NATIONAL FEDERATION
OF FEDERAL EMPLOYEES. IT IS THIS TRANSFER OF FUNCTION WHICH GAVE RISE
TO THE INSTANT PROPOSALS.

UNION PROPOSAL 1

THE NUMBER AND GRADE OF POSITIONS TO BE TRANSFERRED ARE NEGOTIABLE.

SECTION 7106(B)(1) OF THE STATUTE RENDERS, "THE NUMBER, TYPES, AND
GRADES OF EMPLOYEES OR POSITIONS ASSIGNED TO ANY ORGANIZATION
SUBDIVISION" NEGOTIABLE AT THE ELECTION OF THE AGENCY. NATIONAL
TREASURY EMPLOYEES UNION CHAPTER 66 AND INTERNAL REVENUE SERVICE, KANSAS
CITY SERVICE CENTER, 1 FLRA 927(1979). UNION PROPOSAL 1 WOULD REQUIRE
THE AGENCY TO ELECT, CONTRACTUALLY, TO NEGOTIATE THE NUMBERS AND GRADES
OF EMPLOYEES WHO WILL REMAIN IN THEIR PRESENT ORGANIZATION AND OF THOSE
WHO WILL RELOCATE TO ANOTHER SUBDIVISION OF THE AGENCY. AS BARGAINING
ON SUCH MATTERS MAY BE UNDERTAKEN ONLY AT THE AGENCY'S ELECTION, THE
ELECTION ITSELF IS, A FORTIORI, NOT WITHIN THE DUTY TO BARGAIN. THE
AGENCY HEREIN HAS ELECTED NOT TO ENGAGE IN, SUCH NEGOTIATIONS.
CONSEQUENTLY UNION PROPOSAL 1 MUST BE HELD TO BE OUTSIDE THE DUTY TO
BARGAIN.

UNION PROPOSAL 2

ALL EMPLOYEES TRANSFERRED WILL BE GUARANTEED THAT THERE ARE
SUFFICIENT FUNDS AVAILABLE TO

PAY THEM FOR AT LEAST FIVE YEARS.

THE UNION STATES THAT THIS PROPOSAL IS INTENDED TO PROVIDE AN
"APPROPRIATE ARRANGEMENT" UNDER SECTION 7106(B)(3) OF THE STATUTE FOR
EMPLOYEES ADVERSELY AFFECTED BY THE EXERCISE OF MANAGEMENT RIGHTS, I.E.,
THE REASSIGNMENTS OF EMPLOYEES IN CONNECTION WITH A TRANSFER OF
FUNCTION. TO THIS END, THE LANGUAGE OF THE PROPOSAL, AS CONFIRMED BY
THE UNION'S STATEMENT AS TO ITS INTENDED MEANING, WOULD REQUIRE THE
AGENCY TO GUARANTEE THE EMPLOYMENT SECURITY FOR FIVE YEARS OF ALL
EMPLOYEES TRANSFERRED. THUS, THE PROPOSAL, IN EFFECT, WOULD REQUIRE
AGENCY TO AGREE NOT TO LAYOFF ANY OF THE AFFECTED EMPLOYEES FOR FIVE
YEARS. SECTION 7106(A)(2)(A), HOWEVER, EXPLICITY RESERVES TO MANAGEMENT
THE RIGHT TO "LAYOFF" EMPLOYEES. HENCE, THE ARRANGEMENT PROPOSED BY THE
UNION IS DIRECTLY CONTRARY TO THE STATUTORY RIGHT OF THE AGENCY AND
WOULD PREVENT THE AGENCY FROM ACTING AT ALL TO LAYOFF THE EMPLOYEES
COVERED BY THE PROPOSAL. /2/ ACCORDINGLY, IT IS OUTSIDE THE DUTY TO
BARGAIN. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT
DIX, NEW JERSEY, 2 FLRA 153(1979), ENFORCED 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, U.S. ---, 102 S.CT. 1443
(1982).

UNION PROPOSAL 3

ALL EMPLOYEES TRANSFERRED WILL BE GUARANTEED THAT THEY WILL SUFFER NO
FINANCIAL LOSS DUE TO

INCREASED COMMUTING TRANSPORTATION COST (I.E. HIGHER PARKING FEES,
LONGER COMMUTES, REMOVAL OF

ABILITY TO RIDE PUBLIC TRANSPORTATION OR PARTICIPATE IN
CAR/VANPOOLS).

UNION PROPOSAL 3, IN EFFECT, WOULD OBLIGATE THE AGENCY TO REIMBURSE
EMPLOYEES FOR FINANCIAL LOSS CAUSED BY ADDITIONAL COMMUTING COSTS
RESULTING FROM REASSIGNMENTS. IN AGREEMENT WITH THE AGENCY, THE
AUTHORITY FINDS THIS PROPOSAL IN "INCONSISTENT WITH . . . FEDERAL LAW"
AND THEREFORE NONNEGOTIABLE PURSUANT TO SECTION 7117 OF THE STATUTE.
REIMBURSEMENTS FOR TRAVEL EXPENSES ARE GOVERNED BY 5 U.S.C. 5704(1980)
WHICH PROVIDES THAT FEDERAL EMPLOYEES ARE ENTITLED TO REIMBURSEMENT FOR
MILEAGE ONLY IF THEY ARE "ENGAGED ON OFFICIAL BUSINESS FOR THE
GOVERNMENT." WITH CERTAIN EXCEPTIONS NOT PRESENT IN THE INSTANT CASE,
/3/ IT IS WELL ESTABLISHED THAT COMMUTING DOES NOT CONSTITUTE "OFFICIAL
BUSINESS FOR THE GOVERNMENT." /4/ THUS, IN NATIONAL TREASURY EMPLOYEES
UNION AND DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, 9 FLRA NO.
88 (1982), THE AUTHORITY HELD NONNEGOTIABLE A PROPOSAL TO REIMBURSE
EMPLOYEES FOR CERTAIN COMMUTING EXPENSES, NOTING THAT SUCH EXPENSES ARE
PERSONAL TO EMPLOYEES AND MAY NOT BE CONSIDERED AS INCURRED IN OFFICIAL
TRAVEL. THEREFORE, THE AUTHORITY CONCLUDED THAT, CONSISTENT WITH
FEDERAL LAW, THE COST OF TRAVEL BETWEEN THEIR RESIDENCES AND OFFICIAL
DUTY STATIONS MUST BE BORNE BY THE EMPLOYEES. FOR THE REASONS SET FORTH
IN DETAIL IN THAT DECISION, THE INSTANT PROPOSAL IS OUTSIDE THE DUTY TO
BARGAIN. /5/

ACCORDINGLY, FOR THE REASONS STATED, PURSUANT TO SECTION 2424.10 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND IT HEREBY IS,
DISMISSED.

ISSUED, WASHINGTON, D.C., AUGUST 5, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ THE APPEAL, AS ORIGINALLY FILED, INVOLVED SEVEN UNION PROPOSALS.
SUBSEQUENTLY, AS IT APPEARS FROM THE UNION'S RESPONSE TO THE AGENCY'S
STATEMENT OF POSITION, THE PARTIES REACHED AGREEMENT ON FOUR OF THOSE
PROPOSALS (PROPOSALS DESIGNATED 3, 6, 7 AND 10). THE UNION ACCORDINGLY
SOUGHT, AND IS HEREBY GRANTED, PERMISSION TO WITHDRAW ITS APPEAL
CONCERNING THOSE PROPOSALS.

/2/ IN VIEW OF THE DISPOSITION OF THE PROPOSAL, THE AUTHORITY FINDS
IT UNNECESSARY TO RULE ON THE AGENCY'S CONTENTION THAT THE PROPOSAL
CONCERNS MATTERS WITH RESPECT TO THE AGENCY'S BUDGET THAT ARE OUTSIDE
THE DUTY TO BARGAIN.

/3/ SEE, E.G., MATTER OF DEPARTMENT OF AGRICULTURE MEAT GRADERS,
COMPTROLLER GENERAL DECISION B-131810 (JANUARY 3, 1978); 36 COMP.GEN.
450, 453(1956); 55 COMP.GEN. 1323, 1328(1976).

/4/ SEE, E.G., MATTER OF CARL P. MAYER, COMPTROLLER GENERAL DECISION
B-171969.42 (JANUARY 9, 1976); MATTER OF JOHN B. CLYDE, COMPTROLLER
GENERAL DECISION B-195421 (FEBRUARY 21, 1980); 36 COMP.GEN. 450,
452-3(1956); 55 COMP.GEN. 1323, 1327(1976).

/5/ IN VIEW OF THIS DISPOSITION OF THE CASE, THE AUTHORITY FINDS IT
UNNECESSARY TO REACH THE QUESTION OF WHETHER THE UNION'S PROPOSAL IS
ALSO INCONSISTENT WITH ANY GOVERNMENT-WIDE RULE OR REGULATION AS THE
AGENCY CONTENDS.