56 FLRA No. 135

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      This case is before the Authority on the Union's motion for reconsideration of the Authority's order dismissing the Union's petition for review of Provision 2 in Association of Civilian Technicians, Puerto Rico Army Chapter and U.S. Department of Defense, National Guard Bureau, Puerto Rico National Guard, San Juan, Puerto Rico, 56 FLRA 493 (2000) (Puerto Rico National Guard). [n1]  The Agency did not file an opposition to the Union's motion.

      For the reasons that follow, we deny the Union's motion.

II.     Decision in 56 FLRA 493

      In Puerto Rico National Guard, the Authority found that the provision is contrary to law because "no authority exists for agencies to use appropriated funds to reimburse employees for purely personal expenses involved in the planning of leave." Id. at 497. In coming to that conclusion, the Authority applied Comptroller General decisions holding that purely personal expenses, such as forfeited hotel room deposits, dependent's travel costs and increased costs for alternate flight reservations, may not be reimbursed upon the cancellation of approved annual leave. See Earl J. Barlow, Comp. Gen. Decision B-241249 (1991); John W. Keys, 60 Comp. Gen. 629 (1981).

III.     Motion for Reconsideration

      As a preliminary matter, the Union argues that this case warrants reconsideration because: (1) "every twist of a party's legal argument [must] be presented to the Authority before it is presented in court" (Motion for Reconsideration at 1 ("Motion"), citing Overseas Education Association, Inc., v. FLRA, 827 F.2d 814, 820 (D.C. Cir. 1987)); and (2) the Authority's decision is contrary to law.

      The Union contends that the Authority erroneously applied the Travel Expenses Act and Federal Travel Regulations. [n2]  Specifically, the Union argues that the Travel Expenses Act does not apply to the subject of the provision. The Union explains that the provision applies to employees' advance payments for leave expenditures, "whether or not they involve travel . . . [i]t applies, for example, to nonrefundable local theatre, sports event, or banquet tickets." Motion at 2 n.2.

      According to the Union, the Authority's decision "overlooks that the expenditures required by [the provision] are authorized by the collective bargaining law . . . and therefore by the law that generally authorizes agency expenditures." Motion at 2. In support, the Union cites National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 26 FLRA 497 (1987) (BATF), and National Federation of Federal Employees and General Services Administration, 24 FLRA 430 (1986) (GSA). [n3]  Specifically, the Union states that those cases stand for the proposition that "general agency appropriations . . . may be used to meet obligations of collective bargaining agreements" when those agreements are "reasonably related" to the purpose of the collective bargaining law. Motion at 3. [n4]  [ v56 p807 ]

      Next, the Union contends that the provision is not inconsistent with law on the ground that it costs money because (1) the Agency did not claim that the provision interferes with management's right to determine the agency's budget; and (2) even if the Agency did make such a claim, the provision could not be held illegal "under the applicable legal standard." Id. In support, the Agency cites National Federation of Federal Employees, Council of VA Locals and U.S. Department of Veterans Affairs, Washington, D.C., 49 FLRA 923 (1994).

      The Union also claims that the provision is an arrangement under section 7106(b)(3) of the Statute "for employees adversely affected by management's exercise of its right to cancel leave and assign work." Motion at 4. The Union claims that, under the provision, the "Agency['s] payment of employees' unavoidable out-of-pocket losses incurred in reliance on the [A]gency's grant of leave, subsequently revoked, is a narrowly tailored remedy for harm inflicted on blameless employees by . . . [the] [A]gency's exercise of its right to renege on promises." Id. The Union concludes that the Authority's decision stands for the erroneous proposition that any contract provision that costs money must be invalid unless it is "authorized by some law other than the collective bargaining law and the law generally authorizing agency expenditures[.]" Id.

IV.     Analysis and Conclusions

      Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration of a final decision or order of the Authority bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 85 (1995). The Authority has found that extraordinary circumstances exist, and has granted reconsideration, in a limited number of situations, including where the Authority had erred in its remedial order, process, conclusion of law, or factual finding. A moving party's disagreement with the conclusion reached by the Authority is insufficient to satisfy the extraordinary circumstances requirement. Id. at 85-87.

      The Union's first argument is that the Authority erroneously applied the Travel Expenses Act and its implementing Federal Travel Regulations in finding that the provision is contrary to law. By its own terms, however, the provision requires the Agency, among other things, to reimburse employees for hotel reservations and airline tickets that were purchased by employees in the planning of previously approved leave. The provision clearly requires the Agency to pay employees for lost travel expenses. Accordingly, in Puerto Rico National Guard, we applied Comptroller General decisions which have interpreted the Federal Travel Regulations to hold that agencies have "no authority" to reimburse employees for the kind of purely personal travel expenses that are set forth by the terms of the provision. See, e.g., John W. Keys, 60 Comp. Gen. 629 (1981), citing, among other cases, Delbert C. Nahm, B-191,588 (1979) ("since there is no authority under the Federal Travel Regulations[,]" Comptroller General rejected employee's claim for reimbursement of his wife's travel expenses upon cancellation of leave). Under the circumstances presented here, we find that the Union has presented no basis for finding that the Authority erred in its conclusion of law.

      The Union further argues that "the collective bargaining law" authorizes the Agency to negotiate over the provision. However, the supporting cases cited by the Union, BATF, 26 FLRA 497, and GSA, 24 FLRA 430, are not on point because both concerned proposals that were not shown to conflict with any law, rule, or regulation. [n5]  Because there is no duty to bargain over a provision that is contrary to law, we reject the Union's argument. [n6]  Accordingly, as the Union's arguments do not provide a basis for departing from Puerto Rico National Guard, the Union has failed to establish the extraordinary circumstances warranting reconsideration of that decision.

V.     Order

      The Union's motion for reconsideration is denied.

   Provision 2 in Puerto Rico National Guard, set forth as Section 16.1 (b)(1) under the title "Article 16 - Leave[,]" provides as follows:

Once leave has be[en] approved and the employer has a compelling need to cancel the previously approved leave, the employer agrees not to subject the employee to a loss of funds expended in the planning of the leave (i.e., hotel reservations, airline tickets, etc.). The employee will demonstrate the unavoida[bility] of the loss of funds.

   The payment of employee travel expenses is governed by provisions of the Travel Expenses Act, 5 U.S.C. § 5701, et seq., and its implementing Federal Travel Regulations, 41 C.F.R. §§ 301-304.

   These cases refer to section 7101 of the Federal Service Labor-Management Relations Statute (the Statute) as support for the proposition that "labor organizations and collective bargaining are in the public interest." See GSA, 24 FLRA at 432. As such, although the Union refers to 5 U.S.C § 7701 et seq. as the source of "the collective bargaining law[,]" we find that the Union meant to refer to section 7101. See Motion at 2.

   The Union distinguishes the Comptroller General decisions relied upon by the Authority in Puerto Rico National Guard by contending that "the Comptroller General had no occasion to consider, and did not consider, whether the reimbursements at issue properly could be authorized by a collective bargaining agreement." Motion at 3 n.3.

   Specifically, BATF and GSA concerned substantially similar proposals that required the agency to allow the union to use a government telephone for labor-management activities. In GSA, the agency argued that such use of a government telephone is not for the purpose of "official Government business" as set forth by law, and therefore is contrary to law. The Authority ruled the subject matter negotiable when the Agency failed to cite to "any statutory or regulatory provision which would prohibit it from exercising through negotiations its discretion to determine that telephone installation and service for union offices relating to labor-management relations activities is sufficiently within the interest of the United States so as to constitute official business." 24 FLRA at 433; see also BATF, 26 FLRA at 498. Consistent with those cases, it well accepted that agencies are required to negotiate on matters pertaining to the conditions of employment of unit employees that are within the discretion of the agency under law and are not otherwise nonnegotiable. See, e.g., American Federation of Government Employees, Local 1122 and U.S. Department of Health and Human Services, Social Security Administration, Western Program Service Center, Richmond, California, 47 FLRA 272, 284 (1993). In contrast, however, the provision in this case has been demonstrated to be contrary to law.

   In light of this result, it is unnecessary for the Authority to address the Union's additional arguments.