Board of Contract Appeals General Services Administration Washington, D.C. 20405 __________________________ October 31, 2001 __________________________ GSBCA 15457-RELO In the Matter of MICHAEL F. MORLEY Michael F. Morley, North Kingstown, RI, Claimant. Deborah Osipchak, Manager, Travel and Payroll Services Branch, Federal Aviation Administration, Washington, DC, appearing for Department of Transportation. WILLIAMS, Board Judge. Claimant, Michael F. Morley, a bargaining unit employee of the FAA, requests a waiver of the agency's demand for repayment of $539.67 in connection with his permanent change of station (PCS) from Guam to Providence, Rhode Island. For two reasons, the Board lacks jurisdiction over this claim. First, a collective bargaining agreement provides the exclusive administrative means available for resolving this claim. Although Congress enacted legislation exempting the Federal Aviation Administration (FAA) from certain provisions of Title 5 of the United States Code, including some provisions of the Civil Service Reform Act (CSRA) concerning labor relations, the FAA elected to incorporate Chapter 71 of Title 5 of the United States Code into its Personnel Management System (PMS), thus preserving the requirement that FAA union employees utilize exclusively their collective bargaining agreements' grievance procedures to the extent those agreements cover travel and relocation claims. Second, the head of the relevant agency, not the Board, has the authority to waive repayment by an employee of a payment erroneously made to him by the agency. Background Mr. Morley, a member of the National Air Traffic Controllers Association (NATCA), was transferred in July 1999 and claimed expenses for a rental car as part of his PCS reimbursement in Rhode Island while awaiting arrival of his privately owned vehicle that was shipped from Guam. Claimant has not argued that he used the rental car for local commuting. [Foot # 1 ] The agency paid the claim, but contends that it did so in error and seeks repayment from Mr. Morley. Claimant seeks a waiver. ****************** Footnote Begin ********** [Foot # 1 ] Since agencies are prohibited by statute from reimbursing an employee for commuting costs, a claim for such costs would not be a grievance cognizable under a collective bargaining agreement. John B. Courtnay, GSBCA 14508-TRAV, 98-2 BCA 29,791. Rather, the Board would have jurisdiction over such a claim, if it did not involve a request for a waiver of repayment of monies. ****************** Footnote End ************ Discussion In legislation that took effect on April 1, 1996, Congress exempted the FAA from large parts of Title 5, United States Code, and empowered the FAA Administrator to develop and implement a new FAA PMS. Pub. L. No. 104-50, 347, 109 Stat. 436, 460 (1995). Congress did not include Chapter 71 of Title 5, "Labor Management Relations," in the list of sections that would continue to apply to the FAA's new PMS. The FAA has elected to continue the rights and benefits of union representation to its employees by providing for recognition of exclusive representatives, collective bargaining, and union representation in accordance with the provisions of Chapter 71 of Title 5. The FAA PMS provides: The FAA, all FAA employees, and all labor organizations representing FAA employees shall have the same rights, and be subject to the same responsibilities and limitations, as are available to all Federal agencies, employees, and labor organizations under 5 U.S.C. Chapter 71. Each FAA employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal; and each employee shall be protected in the exercise of such rights. FAA PMS, ch. V, 1(a). Further, the collective bargaining agreement between the FAA and NATCA expressly references employees' rights under the CSRA, and the FAA agrees to apprise union members of their rights under the CSRA. National Agreement between the National Air Traffic Controllers' Union and the Federal Aviation Administration (Agreement), art. 4, 1. As we explained in detail in Bernadette Hastak, GSBCA 13938-TRAV, et al., 97-2 BCA 29,092, if a claim can be resolved by using a collective bargaining agreement's grievance procedures, we lack the authority to settle the claim using our administrative procedures unless the agreement explicitly and unambiguously excludes the disputed matter from its procedures. In so ruling, this Board applied the CSRA and precedent construing that law. Here, the collective bargaining agreement's definition of grievance includes "any complaint by an employee concerning any matter relating to [his] employment," or "any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment." Agreement, art. 9, 1; accord 5 U.S.C. 7103(a)(9). Conditions of employment include personnel policies, practices, and matters affecting working conditions, unless they relate to prohibited political activities or the classification of a position or are specifically provided for by federal statute. 5 U.S.C. 7103(a)(14). Claimant's claim relates to conditions of employment and is cognizable under the collective bargaining agreement's grievance procedures, since the dispute over reimbursement for the vehicle both relates to his employment and affects conditions of his employment. Nor do the Agreement's exceptions cover this matter. Article 9, Section 3 provides: This procedure shall not apply to any grievance concerning: 1. any claimed violation of subchapter III of Chapter 73, Title 5 USC (relating to prohibited political activities); 2. retirement, life insurance or health insurance; 3. a suspension or removal under Section 7532, Title 5 USC (relating to national security matters); 4. any examination, certification or appointment (Title 5 USC 7121(c)(4)); 5. the classification of any position which does not result in the reduction-in-grade or pay of any employee; 6. the removal of probations. Agreement, art. 9, 3. Because this claim can be resolved under the terms of grievance procedures in the collective bargaining agreement, we lack the authority to settle the claim using our administrative procedures. Hastak, 97-2 BCA at 144,812; accord Claudia J. Fleming-Howlett, GSBCA 14236-RELO, 98-1 BCA 29,534; Larry D. Morrill, GSBCA 13925-TRAV, 98-1 BCA 29,528; True L. Carter, GSBCA 14131-TRAV, 98-1 BCA 29,530; Brian S. Brame, GSBCA 14333-TRAV (Jan. 7, 1998); Henry E. Carroll, Jr., GSBCA 14206-TRAV (Dec. 29, 1997); William A. Watkins, GSBCA 13970-TRAV, 97-2 BCA 29,222; see also Dunklebarger v. Merit Systems Protection Board, 130 F.3d 1376 (Fed. Cir. 1997). An agency may waive repayment of an erroneous payment which was made to an employee for relocation expenses, but only if the head of the agency determines that collection of the debt "would be against equity and good conscience and not in the best interests of the United States." 5 U.S.C. 5584(a) (2000). The statute authorizing waiver of repayment does not give the Board any power to direct an agency head to make such a finding. Therefore, even if resolution of the matter in dispute were not subject to the provisions of a collective bargaining agreement, we would not be able to address this matter. Brian Johnson, GSBCA 15316-RELO, 01-1 BCA 31,337; Jerry B. Roden, Jr., GSBCA 14756-RELO, 99-2 BCA 30,502; Patricia Russell, GSBCA 14758-RELO, 99-1 BCA 30,291. Decision The claim is dismissed. ________________________________ MARY ELLEN COSTER WILLIAMS Board Judge