Association of Civilian Technicians, Puerto Rico Army Chapter and National Guard Bureau, Puerto Rico National Guard, San Juan, Puerto Rico, 0-NG-2519, January 24, 2003, 58 FLRA No. 75.

FLRA again--but for different reasons than it did in 56 FLRA No. 57--found nonnegotiable a disapproved provision requiring the agency to reimburse employees for certain losses of funds (e.g., for airline, theater and sporting event tickets) resulting from the agency's cancellation of previously approved leave.

The majority, finding the provision nonnegotiable because it required an expenditure of appropriated funds not authorized by law and in conflict with 5 U.S.C. § 5536 (which prohibits employees in bargaining units whose pay is fixed by statute or regulation from receiving additional pay or allowance that's not specifically authorized by law), did not find it necessary to address the union's claim that it was an "appropriate arrangement."

Member Pope found it nonnegotiable because it encompassed expenditures for theater, sports, and banquet which are purely personal to the employee and not tied to the agency's operations. In addition, even assuming it was sufficiently tailored to be an arrangement, she concluded it was not an appropriate arrangement because it excessively interfered with the right to assign work.

The disapproved provision reads as follows:

In 56 FLRA No. 57, the Authority, relying on the Travel Expenses Act, found the disapproved provision contrary to law because, "given the nature of the reimbursement at issue in this case, . . . no authority exists for agencies to use appropriated funds to reimburse employees for purely personal expenses involved in the planning of leave."

The union filed a court appeal and in Act, Puerto Rico Army Chapter v. FLRA, 269 F.3d 1112 (D.C. Cir. 2001), the court vacated the Authority's decision. The court, noting that the provision "does not speak in terms of travel expenses," found that the Travel Expenses Act wasn't relevant to the disputed provision. It remanded the case and instructed FLRA to "consider whether the expenditures required by the disputed provision are 'authorized by the collective bargaining law,' 5 U.S.C. § 7101, et seq., or are specifically authorized as an 'appropriate arrangement [] for employees adversely affected by the exercise of [agency management] authority' in canceling leave and 'assign[ing] work[.]'"

On remand, the Authority again found the provision nonnegotiable, albeit for different reasons.

First of all, the majority rejected the union's contention that FSLMRS provided the necessary authorization for the expenditure of funds to reimburse the employees. It said that "[t]here is no express or implied authorization in the Statute or its legislative history for agencies to expend funds in the manner required by the provision in this case."

Nor was it persuaded that the agency's appropriations for general operating expenditures gave it the discretion to make the expenditures covered by the provision.

It noted that the Comptroller General, in applying and interpreting 31 U.S.C. ' 1301(a), dealing with the disbursement of appropriated funds, applied the "necessary expense doctrine," under which expenditures must be reasonably necessary to carrying out an authorized function.

Moreover, it found "suggestive" Congress' enactment of 10 U.S.C. ' 1053a, which authorizes reimbursement of travel and related expenses incurred by members of the armed forces as the result of cancellation of previously approved leave.

And, finally, it found the provision contrary to 5 U.S.C. ' 5536, which provides that "an employee or a member of a uniformed service whose pay or allowance is fixed by statute or regulation may not receive additional pay or allowance for the disbursement of public money or for any other service or duty, unless specifically authorized by law and the appropriation therefor specifically states that it is for the additional pay or allowance."

FLRA accordingly found the provision contrary to law.