Board of Contract Appeals General Services Administration Washington, D.C. 20405 ___________________________ May 28, 1998 ___________________________ GSBCA 14508-TRAV In the Matter of JOHN B. COURTNAY John B. Courtnay, Spring, TX, Claimant. Frank H. McKinnis, III, Office of the Associate Chief Counsel, United States Customs Service, Houston, TX, appearing for Department of the Treasury. DeGRAFF, Board Judge. The provisions of 41 CFR pt. 302 in effect when an employee was reassigned to a new duty station provided for reimbursement of expenses incurred if the employee relocated his residence. A collective bargaining agreement does not provide the exclusive procedure for resolving a dispute between an employee and an agency if the dispute does not constitute a grievance. An agency cannot reimburse an employee for mileage expenses incurred when the employee is commuting, because such expenses are not incurred for official business. Background In early 1996, John B. Courtnay was an employee of the United States Customs Service at its Houston Airport Branch (airport). In June 1996, due to an agency reorganization, Customs reassigned Mr. Courtnay to the Houston Seaport Branch (seaport), which is twenty-six miles away from the airport. After Mr. Courtnay worked at the seaport for approximately one year, a position became available at the airport and he accepted a reassignment back to that location. Although Customs reassigned Mr. Courtnay to and from the seaport, it never authorized him to incur any reimbursable expenses in connection with the reassignments. Mr. Courtnay asked Customs to reimburse him for mileage for one round trip per day between the airport and the seaport, for every work day between June 9, 1996, when he began work at the seaport, and May 23, 1997, which we presume was the last day that he worked at the seaport. Mr. Courtnay claimed that he was entitled to be reimbursed for mileage pursuant to 41 CFR pt. 302, which applies to employees who relocate. Customs decided to deny the claim and Mr. Courtnay asked us to review this decision and to settle his claim. In response to Mr. Courtnay's submission to us, Customs says that 41 CFR pt. 302 does not apply to Mr. Courtnay because he never relocated his residence. Customs says that Mr. Courtnay is asking to be reimbursed for his commuting costs, not expenses associated with relocation. Customs also points out that Mr. Courtnay is covered by a collective bargaining agreement that provides the "exclusive procedures" for resolving employee grievances. The agreement defines a grievance as "any complaint . . . concerning . . . any claimed violation, misinterpretation, or misapplication of any law, rule or regulation affecting conditions of employment." The agreement contains a list of matters that are excluded from the coverage of the agreement, and does not exclude matters related to mileage. Mr. Courtnay says that 41 CFR pt. 302 is meant to cover "extended travel" as well as relocation, and so it should not matter that he did not relocate his residence. Mr. Courtnay also says that the collective bargaining agreement procedures do not apply to him. Mr. Courtnay points out that the term "conditions of employment" does not include matters that are provided for by federal statute (citing to 5 U.S.C. 7103(a)(14)), and that the duty to bargain in good faith does not extend to matters covered by Government-wide regulations (citing to 5 U.S.C. 7117(a)(1)).[foot #] 1 Mr. Courtnay says that his dispute with Customs cannot be resolved by using the procedures set out in the collective bargaining agreement because, he says, his claim concerns a matter that is provided for by federal statute and covered by a Government-wide regulation. ----------- FOOTNOTE BEGINS --------- [foot #] 1 According to 5 U.S.C. 7117(a)(1), there is no duty to bargain concerning Government-wide rules and regulations, even if a proposal concerns a condition of employment. ----------- FOOTNOTE ENDS ----------- Discussion Mr. Courtnay s claim is not governed by 41 CFR pt. 302 (1996), because he did not relocate his residence. The collective bargaining agreement does not provide the exclusive procedure for resolving the dispute between Mr. Courtnay and Customs because the dispute does not constitute a grievance. Customs correctly decided to deny Mr. Courtnay s claim because the mileage for which he requests reimbursement was not for official business. 41 CFR pt. 302 Although Mr. Courtnay transferred from one official station to another for permanent duty, he did not relocate his residence and so the provisions of 41 CFR pt. 302 do not govern his claim. These regulations permit an agency to reimburse an employee for expenses incurred when the employee transfers from one permanent duty station to another and relocates his or her residence. For example, the regulations provide that an agency may reimburse an employee for the expenses of looking for a residence at the new duty station, selling a residence at the old duty station and purchasing a residence at the new duty station, transporting household goods or a mobile home from the old duty station to the new duty station, storing household goods temporarily, traveling from the old duty station to the new duty station, and using a relocation service company, as well as for subsistence expenses incurred while occupying temporary quarters at the new duty station. The regulations do not provide for reimbursement of any expenses except those incurred in connection with the relocation of an employee s residence. Mr. Courtnay contends that the provisions of 41 CFR pt. 302 apply to him because the regulations apply to extended travel, as well as to relocations. As explained above, however, the provisions of 41 CFR pt. 302 in effect when Mr. Courtnay was assigned to the seaport provided for the reimbursement of expenses incurred in connection with the relocation of a residence by an employee who transferred from one permanent duty station to another. The regulations did not apply to employees who performed extended travel assignments. In September 1996, the governing statute was amended to permit agencies to reimburse employees for relocation expenses incurred while performing extended assignments, and the amendment became effective in March 1997. 5 U.S.C. 5737 (West Supp. 1998). This amendment does not apply to Mr. Courtnay because it was not in effect when Customs assigned him to the seaport. Even if the new statutory provision had been in effect when Mr. Courtnay was assigned to the seaport, it would not have governed his claim because he was not performing an extended travel assignment and he did not relocate his residence. Collective bargaining agreement As we explained in Bernadette Hastak, GSBCA 13938-TRAV, et al., 97-2 BCA 29,091, the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (1978) (codified as amended in scattered sections of the United States Code), "comprehensively overhauled the civil service system." Lindahl v. OPM, 470 U.S. 768, 773 (1985). The CSRA contains an "elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations." Bush v. Lucas, 462 U.S. 367, 388 (1983). The remedial system created by the CSRA obligates federal employees and management to engage in good faith collective bargaining concerning conditions of employment, and allows employees and management to enter into collective bargaining agreements which provide procedures for settling grievances. 5 U.S.C. 7102, 7103(a)(8), 7121(a) (1994). A grievance includes any complaint concerning any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment. 5 U.S.C. 7103(a)(9). Conditions of employment include personnel policies, practices, and matters affecting working conditions, unless the policies, practices, and matters relate to prohibited political activities, relate to the classification of a position, or to the extent that the matters are "specifically provided for" by federal statute. 5 U.S.C. 7103(a)(14). With certain exceptions not relevant here, an agreement's grievance procedures "shall be the exclusive administrative procedures for resolving grievances" which fall within the coverage of the agreement. 5 U.S.C. 7121(a)(1). In Hastak, the dispute between the claimants and the agency concerned whether and to what extent the agency could reimburse employees for mileage between their homes and temporary duty stations near their permanent duty stations. Because reimbursement for local mileage is not specifically provided for by statute, the dispute in Hastak was one affecting conditions of employment and was properly the subject of a grievance. Department of Agriculture Meat Graders, B-131810 (Jan. 3, 1978); Department of Defense Dependents Schools and Overseas Education Association, 50 F.L.R.A. 197 (1995). Because the dispute amounted to a grievance that could be resolved by use of the collective bargaining agreement's exclusive procedures, we concluded that the dispute was beyond our authority to settle. As we explain in the following section, the dispute between Mr. Courtnay and his agency concerns reimbursement of commuting expenses. Because reimbursement for commuting expenses is specifically provided for by statute, the dispute in this case does not affect conditions of employment and is not properly the subject of a grievance. Richard H. Foster, B-202370 (Apr. 2, 1984); 15 Comp. Gen. 342 (1935); American Federation of Government Employees Local 3006 and U.S. Department of Defense National Guard Bureau State of Idaho Office of the Adjutant General, 47 F.L.R.A. 155 (1993). Because the dispute does not constitute a grievance that can be resolved by the collective bargaining agreement s procedures, the collective bargaining agreement is not the appropriate vehicle for resolving the dispute between Mr. Courtnay and Customs. We, therefore, have the authority to settle the claim. Official business The statute that authorizes reimbursement for mileage expenses, 5 U.S.C. 5704 (1994), provides that reimbursement is available only when employees are on official business for the Government. An employee s daily commute between his home and his permanent duty station is personal business, not official Government business, and so agencies cannot reimburse employees for mileage expenses incurred when commuting. Guenther Moehrke, B-252142 (July 6, 1993); Carl R. Leonard, B-226795 (Aug. 20, 1987); Richard H. Foster, B-202370 (Apr. 2, 1984); Lloyd Chynoweth, B-203978 (Mar. 11, 1982); 15 Comp. Gen. 342 (1935). We agree with Customs that Mr. Courtnay s claim amounts to a request to defray his daily commuting costs. Mr. Courtnay s claim is for one round trip each work day between the airport and the seaport. Although our record is not clear concerning the location of Mr. Courtnay s residence relative to the airport and the seaport, the only possible justification for his claim is that the airport is between his residence and the seaport, and that he had to travel an additional distance beyond his old permanent duty station at the airport in order to reach his new permanent duty station at the seaport. If Customs were to reimburse Mr. Courtnay for the mileage between the airport and the seaport, it would be reimbursing him for part of his daily commuting costs and this is not permitted by 5 U.S.C. 5704. Decision Customs correctly decided to deny Mr. Courtnay s claim. __________________________________ MARTHA H. DeGRAFF Board Judge