AFGE National Border Patrol Council and Department of Justice, Immigration and Naturalization Service (Authority decision, October 19, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on a negotiability petition. 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 limiting employee details to a Cuban and Haitian refugee program to 70 days a year unless employees volunteered for longer assignments. It also proposed one weekly long distance call at government expense for employees on detail. The Authority held that the detail limit would constrain management's right to assign work, even with language allowing exceptions when longer details were unavoidable. It found the calls proposal inconsistent with governmentwide rules that barred payment for personal calls. The Authority dismissed the petition as to both proposals.

Decision snapshot

• Authority: Management's right to assign work under 5 U.S.C. § 7106(a)(2)(B); governmentwide regulation limit under § 7117.
• Outcome: Both proposals held outside the duty to bargain; petition dismissed.
• Key point: Qualifying language did not save a proposal that subjected longer work assignments to arbitral review, and personal calls could not be funded as official travel expense.

Full text (FLRA public release)

[ v16 p251 ]

16:0251(35)NG

The decision of the Authority follows:

16 FLRA No. 35

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL BORDER
PATROL COUNCIL
Union

and

DEPARTMENT OF JUSTICE, IMMIGRATION
AND NATURALIZATION SERVICE
Agency

Case No. O-NG-673

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 presents issues concerning the negotiability of two Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations.

Union Proposal 1

Item 3. To the maximum extent possible, no employee will be detailed to the Cuban/Haitian Refugee Program for an aggregate of more than seventy (70) calendar days in any one calendar year, unless the employee freely volunteers for a longer period.

Union Proposal 1, effectively establishing limitations on the length of certain temporary assignments, is to the same effect as Union Proposal 13, in American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982), which the Authority found to violate the Agency's right to assign work pursuant to section 7106(a)(B) of the Statute. In the cited case, the disputed proposal sought to limit travel away from normal duty stations to not more than 35 days unless the employee volunteered for a longer period. It was found to be inconsistent with the management right "to assign work," i.e., the discretion to determine the particular employee to whom the work will be assigned and the discretion to determine when the work which has been assigned will be performed.

The Union, in the instant case, contends, however, that the inclusion of the phrase "to the maximum extent possible" in the proposal leaves with the Agency discretion to exercise its reserved rights without inhibition. In this regard, the Union states that "what is 'possible' is left up to the agency to decide and management has both the option and discretion of detailing an employee for more than seventy (70) calendar days if, in their determination, it is not possible to do anything to the contrary." Further, the Union asserts the phrase constitutes a general, non-quantitative standard "for evaluating the exercise of a management right . . . ."

The Authority examined the import of a similar phrase in Union Proposal 3 in American Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA No. 80 (1983). In that case the proposal required that "to the extent practicable" critical elements be related to grade controlling duties of a position. The question raised was whether the phrase "to the extent practicable" rendered the proposal negotiable despite the limitation imposed by the balance of the proposal on management's discretion in identifying critical elements. The Authority found that the inclusion of the phrase did not alter the conclusion that the proposal was inconsistent with management's rights, pursuant to section 7106(a)(2)(A) and (B) of the Statute, to direct employees and to assign work because the proposal would subject substantive management decisions regarding the establishment of critical elements to arbitral scrutiny and possible revision.

In like manner, Union Proposal 1, herein, would subject to arbitral review and possible revision the Agency's decision made pursuant to its right to assign work at the temporary location for more than 70 days. Therefore, notwithstanding the inclusion of the phrase "to the maximum extent possible," based on Immigration and Naturalization Service and the reasons and case cited therein, Union Proposal 1 is not within the Agency's duty to bargain.

Union Proposal 2

Item 5. Each employee detailed to the Cuban/Haitian Refugee Program will be entitled to one (1) 15-minute, long-distance call each week at government expenses for the purpose of maintaining contact with his/her family.

In agreement with the Agency, the Authority concludes that Union Proposal 2 is inconsistent with a Government-wide regulation. Pursuant to responsibilities assigned by 5 USC 5707(a), the General Services Administration (GSA) has issued regulations governing travel allowances. These regulations, incorporated in the Federal Property Management Regulation (FPMR) 101-7 (1981) state in paragraph 1-1.3.b, with respect to employee travel expenses that, "Traveling expenses which will be reimbursed are confined to those expenses essential to the transacting of official business." With specific regard to telephone calls, FPMR 101-7, paragraph 1-6.5, requires that charges for telephone calls must be certified as being required "on official business" before reimbursements will be made. Paragraph 1-6.4.b of the same regulation enumerates those matters not considered official business:

b. Personal business. Telephone calls, telegrams, cablegrams, and radiograms relating to leave of absences or extension thereof, or to payment of salary or expense vouchers and answers thereto, or those containing other matters of a purely personal nature, must not be made or sent at Government expense, and charges therefor shall not be allowed.

Additionally, 41 CFR 101-37.105-4 (1983) states, with regard to the Federal Telecommunications System and other Government provided long distance telephone facilities:

Use of Government facilities for personal reasons is prohibited and could result in an employee's being fined, suspended, or dismissed. 5 CFR 735.205 prohibits the use of Government property for other than official approved activities.

The Union tacitly acknowledges that the telephone calls referred to in the proposal do not, per se, constitute official Government business. Rather, it asserts that such calls are necessitated by the Agency's requirement that employees be away from home for extended periods and that there is nexus between these phone calls and official business because the resultant improvement in morale will increase employee productivity and effectiveness. However, this Union contention cannot be sustained. It is clear that the applicable Government-wide regulations expressly exclude such personal telephone calls from the ambit of "official business." Hence, since Union Proposal 2 is inconsistent with a Government-wide regulation, pursuant to section 7117 of the Statute it is outside the Agency's duty to bargain.

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., October 19, 1984. Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY