Matter of: Local Mileage Allowances - Collective Bargaining Agreement Provisions Contrary to Joint Travel Regulations File: B-252405 Date: October 14, 1993

Matter of: Local Mileage Allowances - Collective Bargaining Agreement Provisions Contrary to Joint Travel Regulations File: B-252405 Date: October 14, 1993

CIVILIAN PERSONNEL Travel Mileage Regulations Collective bargaining Agreements A disbursing officer questions the effect of provisions in collective bargaining agreements that are contrary to provisions of the Joint Travel Regulations (JTR) governing the computation of local mileage allowances. Although bargaining over provisions that are contrary to statute or government-wide regulations is generally prohibited, the Federal Labor Relations Authority, which has the authority to decide such issues, has held that negotiated agreements may supersede provisions in agency-wide regulations, such as the JTR provision in question here. Therefore, GAO will not question local mileage payments made in accordance with these negotiated agreements although they are contrary to the JTR provision.

DECISION A Department of Defense disbursing officer asks whether he must give effect to provisions in a labor-management agreement which provide local travel allowances contrary to a provision of the JTR.[1] As explained below, the negotiated agreement provision would take precedence over the JTR provision, and therefore we would not question mileage payments made in accordance with the negotiated agreement.

BACKGROUND

Prior to December 1, 1991, JTR paragraph C2401-3 permitted payment of the local mileage allowance for the full distance traveled between the employee's place of abode and the alternate duty point. Effective December 1, 1991, this paragraph was revised to limit such mileage reimbursement to the distance that exceeds the employee's commuting distance to the regular place of work and return.

The question presented arises from a negotiated agreement between DCAA and the union representing DCAA Northeastern Region employees. The agreement provided for an effective date of May 8, 1992, rather than December 1, 1991, for the change in paragraph C2401-3 limiting the mileage allowance, as it applies to Northeastern Region bargaining unit employees. The disbursing officer also indicates that another Department of Defense component has negotiated a labor agreement which completely negates reduction in the mileage allowance for employees covered by that agreement. He requests our decision on what effect he should give such provisions in negotiated agreements in making local mileage payments.[2]

ANALYSIS AND CONCLUSION

The statutory authority to pay mileage allowances is 5 U.S.C. Sec. 5704, which does not specify the method to be used in computing mileage, but provides for such allowances for employees' use of privately owned vehicles while engaged on official business under regulations prescribed pursuant to 5 U.S.C. Sec. 5707. Section 5707 directs the Administrator of General Services to prescribe implementing regulations, which he has done in Chapter 301 of the Federal Travel Regulations, 41 C.F.R. Part 301-4. These regulations, which apply to most civilian employees government-wide, including Department of Defense civilian employees, do not specify the method of computing the mileage allowance for travel between an employee's residence and temporary duty site. We have long recognized the administrative discretion left to the individual agencies in this regard. See 36 Comp.Gen. 795, 797 (1957). We also have recognized that the JTR (through predecessor paragraphs to paragraph C2401-3 in question here) may restrict the exercise of that discretion for DOD components. See Talmadge M. Gailey, B-220110, Dec. 17, 1985.

Whether a labor-management agreement may provide different rules for DOD agency employees it covers than the JTR provides, either by delaying the effective date of the new rule provided by revised paragraph C2401-3 or by providing a less restrictive mileage computation than it allows, is a question of the extent of the collective bargaining authority prescribed under the labor-management section of the Civil Service Reform Act of 1978, 5 U.S.C. Secs. 7101-7135 (1988). Under that Act, the duty to bargain in good faith does not extend to matters inconsistent with any federal law or any government-wide regulation, but it does extend to matters which are the subject of other rules and regulations which are not government-wide rules and regulations. 5 U.S.C. Sec. 7117(a)(1). See also National Federation of Federal Employees, Local 561 and Dept. of the Army, 17 FLRA 759 (1985).

In the present case, bargaining over the mileage computation method at issue does not appear inconsistent with the statute authorizing the mileage allowance or the government-wide FTR provision implementing the statute since neither is specific in this regard. While obviously the matter bargained for here is inconsistent with the JTR provision, that provision is not a government-wide regulation or a restatement of a government-wide regulation. Instead it appears to be an agency regulation.[3] Bargaining over an agency regulation is permitted unless the Federal Labor Relations Authority determines that the regulation is one for which a compelling need exists. See 5 U.S.C. Sec. 7117(a)(2). See also American Federation of Federal Employees and Dept. of Agriculture, 8 FLRA 118, 131 (1982) (Union Proposal VI).[4]

Concerning collective bargaining agreements which conflict with agency regulations, the FLRA, which makes authoritative determinations concerning the effect of negotiated agreement provisions, has succinctly stated its views as follows:

In our view, under the statutory framework, collective bargaining agreements, and not agency rules and regulations, govern the disposition of matters to which they both apply when there is a conflict between the agreement and the rule or regulation. We reach this conclusion on the basis of the scope of bargaining prescribed under the Statute. Consistent with section 7117, duly authorized representatives of an agency may agree to provisions in a collective bargaining agreement, notwithstanding the existence of conflicting agency rules or regulations. As discussed above, they may not do so in face of conflicting Government-wide rules or regulations." Dept. of the Army, Fort Campbell Dist. and American Federa- tion of Government Employees, Local 2022, 37 FLRA 186, 194 (1990).

The record in the present case shows that initially DCAA Northeastern Region management was instructed not to negotiate over the mileage allowance issue unless the FLRA determined that there was no compelling need for the regulation. However, when the union challenged the matter, management requested the DOD Per Diem, Travel and Transportation Committee, which promulgates the JTR, to respond. The Committee, however, decided not to provide a supporting response, and consequentially the Northern region withdrew its position of non-negotiability and negotiated the delayed implementation date in question.

Therefore, applying the FLRA's analysis quoted above, it appears that the negotiated provisions delaying implementation of the more restrictive computation method would take precedence over the agency regulations set out in the amended paragraph C2401-3 of the JTR. Accordingly, our Office would not question payments for local mileage made in accordance with the negotiated provision to claimants covered by such provisions.

As to the other negotiated agreement to which the disbursing officer refers which he indicates completely negates the new computation method, we do not have a complete record concerning its negotiation. However, if it became a valid provision in a negotiated agreement, similar to the delayed implementation provision discussed above, it too would appear to supersede the JTR provision for the employees it covers.

1. The request for decision was presented by John D. Graham, Finance and Accounting Officer, Defense Finance and Accounting Service, Columbus, Ohio, pursuant to 31 U.S.C. Sec. 3529.

2. Although in Cecil E. Riggs, et al., 71 Comp.Gen. 374 (1992), we stated we will no longer take jurisdiction of federal employee claims on matters which are subject to negotiated grievance procedures under collective bargaining agreements, we retained jurisdiction to accept requests for decisions from federal agency officials on matters of general application. See e.g., B-249061, May 17, 1993.

3. We note that the FLRA has considered another JTR provision to be an agency regulation. See Dept. of the Army, Fort Campbell Dist. and American Federation of Government Employees, 37 FLRA 186 (1990).

4. This case concerned a somewhat similar agency regulation restricting local mileage allowances for certain Department of Agriculture employees, where the agency had raised the compelling need argument. The FLRA held that a compelling need did not exist for the regulation. The FLRA stated that the union proposal was not inconsistent with law or government-wide regulation and noted that we had held that it was a matter of agency discretion.