21:0006(2)NG - NTEU and Dept. of the Treasury, U.S. Customs Service -- 1986 FLRAdec NG
[ v21 p6 ]
The decision of the Authority follows:
21 FLRA No. 2 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE Agency Case No. 0-NG-293 9 FLRA 629 DECISION AND ORDER ON REMAND I. Statement of the Case This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. The sole question presented is whether payment by an agency of travel expenses and per diem allowances incurred by employees using official time in the conduct of labor-management relations is within the duty to bargain under the Federal Labor-Management Relations Statute (the Statute). In a previous decision in this case, National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 629 1982 , the Authority found the following Union proposal to be within the duty to bargain. The employer agrees to pay the travel expenses incurred by employees while using official time available under the terms of this agreement. The original finding of negotiability was premised upon the conclusion that where "official time" had been granted by the Statute, or negotiated between the parties, employees using it are on "official business" and thus, under law, are entitled to travel expenses and per diem allowances. See Interpretation and Guidance, 2 FLRA 265 (1979). That interpretation was rejected by the Supreme Court in Bureau of Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983). In footnote 17 at p. 107 of its decision the Supreme Court stated that, "unions may presumably negotiate for such payments in collective bargaining as they do in the private sector." In light of the decision, the Authority requested, and the Court of Appeals ordered, remand of the instant case. Upon remand, the Authority issued a "Notice of Reopened Proceedings and Request for Statements of Position" in which it solicited a statement of position from each of the parties as to the effect of the Supreme Court's decision on the negotiability of the above proposal. II. Positions of the Parties As explained by the Union, the proposal seeks agreement as to what categories of union activities shall be construed to be in the primary interest of the Government and, hence, "official business" for purposes of reimbursement of incidental and otherwise proper travel expenses. Once such a determination is made the Union acknowledges that "of course, all the specific Travel Regulations apply." The Agency contends that the proposal is not within the duty to bargain for three independent reasons: a. It does not concern conditions of employment within the meaning of section 7103(a) (14) of the Statute because payment of travel expenses is specifically provided for by law; b. it is inconsistent with Federal law and Government wide regulations; c. it interferes with its right to determine its budget under section 7106(a)(1). III. Analysis A. "Condition of Employment" The proposal clearly involves a condition of employment not excepted from the definition thereof. Representation of employees in matters concerning their employment affects the "working conditions" of those employees. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980) (Union Proposal II), enf'd as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140(D.C. Cir. 1981, cert. denied sub nom. American Federation of Government Employees, AFL-CIO v. FLRA, 455 U.S. 945 (1982). For relevant private sector decisions similarly finding such expenses to be conditions of employment, see Midstate Telephone Corporation v. NLRB, 706 F.2d 401 (2nd Cir. 1983) and Axelson, Inc. v. NLRB, 599 F.2d 91 (5th Cir. 1979). Whether travel expenses incurred in the conduct of labor-management relations activity are payable from federal funds is not specifically addressed by the Statute or the Travel Expense Act, 5 U.S.C. 5701, et seq. The Statute and its legislative history are silent on this subject. Indeed if it were not, the present litigation might well be unnecessary. While the Travel Expense Act governs the general subject of payment of travel expenses for employees traveling on "official business," it does not specifically address payment for travel engaged in while conducting labor-management activity. Thus the Agency' s contention that the proposal involves a matter specifically provided for by Federal statute so as to be excepted from the definition of conditions of employment must be rejected. B. "Inconsistent with Federal Law or Government-Wide Rules or Regulations" The thrust of the Agency' s argument is that because no law specifically provides for such payment of expense, it must be inferred that such payments are precluded. /1/ It further argues that the Federal Travel Regulations (hereinafter FTRs) limit payment to those travel expenses which are essential to the transacting of official business, and that the granting of "official time" does not confer "official business" status on travel undertaken while on official time. /2/ It contends that a determination as to whether an employee is on "official business" is dependent on the particular facts involved in each individual situation. Consequently, such a determination is not a matter of "unlimited discretion" on the part of the Agency. /3/ The provisions of the Travel Expense Act and the FTRs are set forth, in relevant part, in appendices A and B. Briefly summarized the statutory provisions state that federal employees traveling on "official business" are entitled to appropriate expenses and allowances. The regulations in turn limit such reimbursement to that" which is necessary to accomplish the purposes of Government effectively and economically." In exercising his authority to render decisions on questions involving payments and vouchers pursuant to 31 U.S.C. 3529 (1982 ed.), the Comptroller General of the United States administers and interprets the Travel Expense Act. Neither the Travel Expense Act nor the regulations specifically define the term "official business." As a general proposition the Comptroller General has ruled that payment is authorized where the activity involved was sufficiently in the interest of the United States so as to be regarded as official business. 44 Comp.Gen. 189 (1964). In the labor-relations context, the Comptroller General has applied a similar standard. Prior to passage of the Statute, an agency was not precluded from making payment of travel expenses and per diem allowances to union representatives upon a determination that it served the convenience of the agency or was otherwise in the primary interest of the Government. BATF, supra, pp. 100-01 n. 11 and 107 n. 17 citing 46 Comp.Gen. 21 (1966). /4/ Thus determinations concerning whether to make such payments are within the discretionary administrative authority of an agency. The Authority has consistently held that insofar as an agency has discretion regarding a matter affecting conditions of employment it is obligated under the Statute to exercise that discretion through negotiation unless precluded by regulatory or statutory provisions. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 759-60 (1980). Moreover, nothing in the Statute limits this duty to matters over which an agency has total discretion. American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA 409 (1982. In the instant case, the Agency has not cited any legal or regulatory provision, nor is any apparent, which would absolutely prohibit it from exercising through negotiations the discretion which it possesses to determine whether, and under what circumstances, travel attendant to labor-management relations activities is sufficiently within the interest of the United States so as to constitute official business. /5/ The Union has acknowledged that payment of any travel expenses flowing from this proposal, if agreed upon, would be subject to the provisions of the FTRs. /6/ Hence, we conclude the proposal would not require the Agency to authorize either specific travel or expenses which do not comport with the regulatory requirements and restrictions. The proposal was not intended to, and could not, require the Agency to use specific authorization procedures and practices relating to actual travel which conflicted with the FTRs. It would not foreclose individual determinations regarding the propriety under the FTRs of authorizing particular travel and expenses. To the extent that case-by-case determinations are required under law and regulation, this proposal would not be inconsistent with such procedures. Cf. U.S. Department of Justice v. FLRA, 727 F.2d 481, 489-90 (5th Cir. 1984 (wherein the Court held in the circumstances presented that law and regulations required case-by-case determination as to method or means of travel used by employees). Thus the Agency's contention that the proposal is inconsistent with Federal law, and Government-wide regulations must be rejected. C. "Conflicts with the Right to Determine (the Agency's) Budget" The Authority has previously held that interference with the right of an agency to determine its budget under section 7106 insulates the negotiation process in two fundamental respects. First, an agency cannot be required to negotiate particular budgetary matters relating to the determination of the programs and operations to be included in its estimation of proposed expenditures and the amounts required to fund them. Second, where an agency makes a substantial demonstration that a significant and unavoidable increase in costs, not off set by compensating benefits, will result, an otherwise negotiable proposal may be found to violate this section 7106(a) right of the Agency. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, supra, at page 608. The Agency acknowledges that the Union Proposal does not expressly require that a line item be added to the Agency' s budget and tacitly concedes that it would not prescribe an amount to be allocated in the Agency's budget for programs or operations. The Agency argues (without specific support) that the proposal would entail significant and unavoidable costs which are not offset by compensating benefits to the Agency. It only claims generally that the significance and unavoidability of increased costs attendant to the payment of travel expenses resulting from labor-management relations activities has been "officially recognized." /7/ No specific information or estimates of the financial impact of the proposal have been presented. Based on this record, the Agency's poorly supported assertion cannot provide a ground for concluding that there is a substantial demonstration that the proposal would result in a significant and unavoidable increase in costs. Therefore, its allegation that the proposal is inconsistent with its right to determine its budget cannot be sustained. American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 6 FLRA 423 1981), aff'd mem. sub nom. Office of Personnel Management v. FLRA, 706 F.2d 1229 D.C. Cir. 1983. IV. Conclusion Based on the foregoing analysis, the Authority finds that the Union Proposal concerns a condition of employment which is within the Agency's administrative discretion, and is not inconsistent with law or Government-wide regulation. Therefore, it is within the duty to bargain. /8/ In making this finding, it is noted that while the Agency must bargain in good faith over the disputed proposal it is under no obligation to agree to this particular formulation. Consideration by management of the consequences of the proposal are a legitimate aspect of the bargaining process. Should matters of concern to the Agency, such as perceived potential for increased expenditures, prevent the parties from reaching agreement, such considerations could be presented to the Federal Service Impasses Panel in a proceeding pursuant to section 7119 of the Statute. V. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning the Union Proposal. Issued, Washington, D.C., January 31, 1986 (s)--- Jerry L. Calhoun, Chairman (s)--- Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ To the extent the Agency contends that the expenditure of funds to pay the travel expenses and per diem allowances of Agency employees using official time to conduct labor-management relations is unsupported by a congressional appropriation of funds, the claim is without merit. In September 1979, Congress appropriated funds for the "necessary expenses" of the Customs Service for fiscal year 1980. Treasury, Postal Service, and General Government Appropriations Act of 1980, Pub.L. No. 96-74, 93 Stat. 559, 560. A line item for "travel and transportation of persons" was included in the Customs Service's budget estimate for that fiscal year. Budget of the United States Government, Fiscal Year 1980, Appendix, at p. 762. Subsequent to fiscal year 1980 the activities of the Customs Service, including travel of employees, have been carried out under continuing resolutions. See, e.g., Continuing Resolution of 1984, Pub.L. No. 98-151, 97 Stat. 964. Such congressional appropriation acts, which presumably have supported travel by employees representing the Agency in connection with labor relations activities, also would support the disbursement of funds for such travel by Agency employees as may occur under the Union's proposal in this case. /2/ The FTRs have been held to be Government-wide rules or regulations within the meaning of the Statute. National Federation of Federal Employees, Local 29 and U.S. Army Engineer District, Kansas City, Missouri, 13 FLRA 23(1983). /3/ The Agency incorporates by reference guidance issued by the Office of Personnel Management (OPM) that a determination that specific travel related to union activities is in the primary interest of the Government and, hence, constitutes "official business" is a decision reserved solely and exclusively to agencies. FPM Letter 711-162 (Subject: Payment of Travel and Per Diem Expenses for Employee Negotiators Representing Unions in Collective Bargaining) dated January 19, 1984. The Authority notes that such guidance is merely that and is not binding on the various federal agencies. See National Treasury Employees Union v. Devine, 587 F. Supp. 960, 963 (D.D.C. 1984); see also Federal/Postal/Retiree Coalition v. Devine, 751 F.2d 1424 (D.C. Cir. 1985). /4/ Relying upon the principles enunciated by the Comptroller General in that opinion, the Federal Labor Relations Council, established by E.0. 11491 to administer labor-management relations in the Federal service, held a proposal seeking travel costs for certain contract administration activities to be within the duty to bargain under the provisions of that Executive Order. National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, Region VII, 5 FLRA 250 1977. /5/ See also Unpublished Decision of the Comptroller General, B-195409, July 7, 1980 (wherein the Comptroller General, in ruling on a particular employee's entitlement to travel expenses, noted that payment of such expenses could be authorized by, among other things, provisions of a negotiated agreement). It is noted that where a determination as to whether something is in the Government' s interest is within an agency's administrative discretion, such determination is subject to bargaining. American Federation of Government Employees, AFL-CIO, Local 3525 and U.S. Department of Justice, Board of Immigration Appeals, 10 FLRA 61, 65(1982. /6/ Union Reply Brief to Agency Statement of Position at 4: "of course, all the specific Travel Regulations apply." /7/ This claim is apparently premised or made in reliance upon the following: a. A report in Government Employees Relations Report (GERR) regarding an OPM estimate that payment of travel and per diem for union negotiators on official time under section 7131(a) of the Statute would cost 15 sample agencies $2 million per year. GERR (BNA) No. 852 at 11 (1980). b. Information contained in the record of an unrelated impasse proceeding before the Federal Service Impasses Panel (FSIP) wherein the agency in that proceeding stated that in the contract negotiations involved in that dispute, travel and per diem for the union team cost $187,302.25. Equal Employment Opportunity Commission, Washington, D.C. and Equal Employment Opportunity Commission Council 216, American Federation of Government Employees, AFL-CIO, 80 FSIP 38, Report No. 179 (1981 . c. The statement of the Supreme Court in BATF at 464 U.S. 100 that: Under the 1962 Executive Order establishing the first federal labor relations program, the decision whether to pay union representatives for the time spent in collective bargaining was left within the discretion of their employing agency, apparently on the ground that, without some control by management, the length of such sessions could impose too great a burden on government business. (Citation and footnote omitted.) /8/ In finding this proposal within the duty to bargain the Authority makes no judgment as to its merits. APPENDIX A Relevant Provisions of Travel Expense Act 5 U.S.C. 5701 et seq. 5702. Per diem; employee traveling on official business (a) Under regulations prescribed under section 5707 of this title, an employee while traveling on official business away from his designated post of duty, or in the case of an individual described under section 5703 of this title, his home or regular place of business, is entitled to (1) a per diem allowance for travel inside the continental United States at a rate not to exceed $50, and (2) a per diem allowance for travel outside the continental United States, that may not exceed the rate established by the President, or his designee, for each locality where travel is to be performed. For travel consuming less than a full day, such rate may be allocated proportionately. (c) Under regulations prescribed under section 5707 of this title, the Administrator of General Services, or his designee, may prescribe conditions under which an employee may be reimbursed for the actual and necessary expenses of official travel when the maximum per diem allowance would be less than these expenses, except that such reimbursement shall not exceed $75 for each day in a travel status within the continental United States when the per diem otherwise allowable is determined to be inadequate (1) due to the unusual circumstances of the travel assignment, or (2) for travel to high rate geographical areas designated as such in regulations prescribed under section 5707 of this title. 5704. Mileage and related allowances (a) Under regulations prescribed under section 5707 of this title, an employee who is engaged on official business for the Government is entitled to not in excess of-- (1) 20 cents a mile for the use of a privately owned motorcycle; (2) 25 cents a mile for the use of a privately owned automobile; or (3) 45 cents a mile for the use of a privately owned airplane; instead of actual expenses of transportation when that mode of transportation is authorized or approved as more advantageous to the Government. A determination of such advantage is not required when payment on a mileage basis is limited to the cost of travel by common carrier including per diem. Notwithstanding the preceding provisions of this subsection, in any case in which an employee who is engaged on official business for the Government chooses to use a privately owned vehicle in lieu of a Government vehicle, payment on a mileage basis is limited to the cost of travel by a Government vehicle. (b) In addition to the mileage allowance authorized under subsection (a) of this section, the employee may be reimbursed for-- (1) parking fees; (2) ferry fees; (3) bridge, road, and tunnel costs; and (4) airplane landing and tie-down fees. 5706. Allowable travel expenses Except as otherwise permitted by this subchapter or by statutes relating to members of the uniformed services, only actual and necessary travel may be allowed to an individual holding employment or appointment under the United States. 5707. Regulations and reports (a) The Administrator of General Services shall prescribe regulations necessary for the administration of this subchapter, except that the Director of the Administrative Office of the United States Courts shall prescribe such regulations with respect to official travel by employees of the judicial branch of the Government. APPENDIX B Relevant Provisions of Federal Travel Regulations 1-1.3. General rules. b. Reimbursable expenses. Traveling expenses which will be reimbursed are confined to those expenses essential to the transacting of official business. 1-1.4. Authorization of travel. a. Travel policy. It is the policy of the Government that agencies shall authorize only that travel which is necessary to accomplish the purposes of the Government effectively and economically. b. Agency responsibilities. (1) Except as otherwise provided by law, all travel shall be either authorized or approved by the head of the agency or by an official to whom such authority has been delegated. Ordinarily, a travel authorization shall be issued before the incurrence of the expenses. Agencies shall prescribe procedures for travel situations where it is not practical or possible to issue a written authorization in advance. (2) Agency heads shall communicate the Government's travel policy (see a, above) to all travel authorizing officials at all levels within their respective agencies and establish controls to ensure that only travel that is essential to the purposes of the Government and for accomplishment of the agency's mission is authorized or approved. (3) Travel authorizing officials shall authorize or approve only that travel necessary to accomplish the agency mission in the most effective and economical manner. Authorizing officials should be aware of travel plans, including plans to take annual leave in conjunction with travel, and shall ensure appropriate consideration of the need for the travel, the use of travel substitutes (i.e., mail, teleconferencing, etc.), and the most cost effective routing and means of accomplishing travel. Each employee' s travel shall be authorized separately under specific guidelines provided in 1-1.5. 1-1.5. Guidelines for issuing travel authorizations. The travel policies and practices of each agency shall reflect, but not be limited to, the guidelines stated herein. a. Types and use of travel authorizations. General or blanket travel authorizations for entire agencies or groups of employees shall not be used. To ensure adequate managerial and supervisory attention to the need for all travel, each employee's travel shall be authorized separately under one of the following types of travel authorization: (1) Unlimited open authorization. This type of authorization allows an employee to travel for any purpose without further authorization. Unlimited open authorizations shall be issued only for department or agency heads, their deputies, or other principal agency officials as the agency head or deputy may designate, and managers of major subunits where no supervisor is present. (2) Limited open authorization. This type of authorization allows an employee to travel without further authorization under certain specified conditions (i.e., travel to specific geographical area(s), for specific purpose(s), subject to trip cost ceilings, or for specific periods of time). Limited open authorizations may be provided for employees whose duties require frequent repetitive travel. Such authorizations, however, should be reviewed and revalidated at least quarterly and should include realistic limitations on purpose(s), geographic area(s), number of trip(s), trip duration, and costs. (3) Trip-by-trip authorization. This type of authorization allows an individual or group of individuals to take one or more specific trips and shall include the specific purpose, itinerary, and estimated costs. Travel not covered in an unlimited or limited open authorization (see (1) and (2), above) shall be separately authorized on a trip-by-trip basis. b. Levels of approval and requirements for special purpose travel. Due to the relatively high costs associated with certain kinds of travel, such travel shall be authorized only on a trip-by-trip basis and reviewed at a level of authority sufficient to provide policy approval. The types of travel covered by this requirement are indicated in (1) thru (3), below. Authorization of travel for purposes other than those listed in (1) thru (3), below, should be delegated to the lowest management level which has responsibility for both program accomplishment and obligation or commitment of funds. (1) Conferences, meetings, and training sessions. Travel for conference and meeting attendance and training sessions shall be authorized on a trip-by-trip basis. When authorizing travel for conference and meeting attendance, the approving official shall ensure that the number of attendees from the agency is necessary and justified. In addition, the need for conferences and meetings for which total travel and per diem estimates exceed $5,000 shall be certified by a level of authority sufficient to provide policy approval as designated by the head of the agency scheduling the conference or meeting. c. Purpose(s) of travel. Each travel authorization and the associated travel voucher (s) (see 1-11.5g) shall specify clearly the purpose(s) of the travel. For uniformity in establishing travel purposes on authorizations, agencies should use travel purpose categories that conform to the extent possible to those listed in appendix 1-B. d. Cost estimates. Travel authorizations shall include estimates of the cost of the travel. Both unlimited and limited open authorizations shall also include an estimate of the travel costs to be incurred over the period covered by the authorization. Agencies shall use these estimates to obligate the funds necessary to carry out that particular travel in order to improve travel budgetary controls. (For advance of funds for the estimated costs of travel, see 1-10.3.) 1-2.1. Expenses payable as transportation. Transportation expenses which the Government may pay either direct or by reimbursement include fares, rental fees, mileage payments, and any expenses incident to transportation such as baggage transfer; official telegraph, telephone, radio, and cable messages in connection with items classified as transportation; steamer chairs, steamer cushions, and steamer rugs at customary rates actually charged; staterooms on steamers; and other expenses set forth in 1-2 through 1-6 and 1-9.