21:0097(19)NG - NTEU and Dept. of Treasury, IRS -- 1986 FLRAdec NG
[ v21 p97 ]
The decision of the Authority follows:
21 FLRA No. 19 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE Agency Case No. 0-NG-1021 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case The petition for review in this case comes before the Authority because of a negotiability appeal filed under section 7105(a) (2) (E) of the Federal Service Labor-Management Relations Statute (the Statute). It raises issues concerning the negotiability of a single Union Proposal. II. Union Proposal Employee negotiators representing the union will be compensated by the agency for all travel and per diem expenses unless the agency can demonstrate just cause for not doing so. At a minimum, cause will focus upon any disparate treatment of the management and union teams, the interest of the public, employee morale, and a viable labor management relationship. III. Positions of the Parties As explained by the Union, the proposal is not intended to conflict with any applicable law or regulation. Indeed, the Union states: This proposal permits any agency to examine the facts of each reimbursable incident and to decide after the event whether it is reimbursable. By focusing upon a "just cause" standard we have chosen a nonquantitative term of art that allows for a variety of arguments to be raised by the agency. The agency could raise the argument that reimbursement for a particular event is barred by law or regulation. The agency could argue that there is no nexus to government interests or that it is not in the best interest of the government. The arbitrator deciding this dispute would take a variety of factors into consideration and issue a decision based on a weighing of all arguments. The only argument that could standing alone bar reimbursement without consideration of the other arguments is that reimbursement would violate law and regulation. See, Union Response at pages 8 and 9. Finally, the Union maintains that its proposal limits travel and per diem reimbursement to unit employees authorized to be at the bargaining table on official time. This number is limited to a number of employees equal to the number which represent the Agency. The Agency contends that the proposal is not within the duty to bargain for the following reasons: 1. 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; 2. it is inconsistent with Federal law or Government-wide regulation; and 3. the demand for travel and per diem to employee/negotiators is not limited to those employee/negotiators who are receiving official time. IV. Analysis A. "Conditions of Employment" The Agency makes an essentially identical "conditions of employment" argument to that made by the agency in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986). The Authority rejected that argument in Customs Service and it is rejected here for the sane reasons set forth in that case. B. Inconsistent with Federal law or Government-wide Rules or Regulations The Agency contends, in essence, that under the Travel Expense Act, 5 U.S.C. 5701 et seq., and the Federal Travel Regulations (FTRs), 41 CFR, Part 101-7, 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. In Customs Service, the Authority has found that agencies have discretion, under the Travel Expense Act and implementing regulations, to determine whether and under what circumstances travel related to labor-management relations activities is sufficiently within the interest of the United States so as to constitute official business for which employees may receive appropriate expenses from Federal funds. The exercise of that discretion was held to be subject to the negotiation process. The Agency here makes no specific argument that the proposal does not meet the statutory and regulatory standards discussed in Customs Service. Moreover, as noted in the Union's Position, the proposal envisions case by case determinations as to the appropriateness of specific travel and expenses which are necessary and proper under law and governing regulation. Given these circumstances, and for the reasons expressed in Customs Service, the Agency' s assertion that the proposal is inconsistent with law and Government-wide regulations must be rejected. C. Limited to those Employee/Negotiators Who Are Receiving Official Time. The Agency contends that the proposal, on its face, would permit employee/negotiators who are not receiving official time to be entitled to travel and per diem. However, in our view the explicit language of the proposal does not require payment of travel and per diem to those employee/negotiators who are not receiving official time. Indeed, the Union, as previously noted, interprets the proposal to limit travel and per diem reimbursement to only unit employees authorized to be at the bargaining table on official time. In any event, nothing in Customs Service analysis indicates that travel and per diem must be tied to 7131 official time in order to be negotiable. Instead, negotiability of travel and per diem is based on consideration of whether travel involved is in the primary interest of the Government so as to constitute "official business" without consideration of section 7131. Consequently, we find the Agency's contention not to be supported. V. Conclusion Based on the foregoing analysis, the Authority finds that the proposal concerns a condition of employment which is not inconsistent with law or Government-wide regulation. Therefore, the proposal is within the duty to bargain. /1/ VI. 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., March 20, 1986 (s)--- Jerry L. Calhoun, Chairman (s)--- Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In deciding that the proposal is negotiable, the Authority makes no judgment as to its merits.