21:0112(21)NG - AFGE, National Council of Federal Grain Inspection Locals and DOA,FGIS -- 1986 FLRAdec NG



[ v21 p112 ]
21:0112(21)NG
The decision of the Authority follows:


 21 FLRA No. 21
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, AFL-CIO, 
 NATIONAL COUNCIL OF FEDERAL 
 GRAIN INSPECTION LOCALS
 Union
 
 and
 
 U.S. DEPARTMENT OF AGRICULTURE, 
 FEDERAL GRAIN INSPECTION SERVICE
 Agency
 
                                            Case No. 0-NG-1034
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    I. Statement of the Case
 
    The petition for review in this case is before the Authority because
 of an appeal filed under section 7105(a)(2)(D) and (E) of the Federal
 Service Labor-Management Relations Statute (the Statute).  It raises
 issues concerning the negotiability of the underlined portions of the
 following provisions of a negotiated agreement disapproved by the Agency
 head under section 7114(c) of the Statute.
 
                                Provision 1
 
                         ARTICLE 7 REPRESENTATION
 
       Section 1.  The parties acknowledge the right of bargaining unit
       members at all locations to have access to Union representation.
       The following sections provide the procedures for representation
       activities on official time other than bargaining and for the
       payment of travel expenses for Area Representatives meeting the
       criteria established in this Article.  Employees will contact the
       Union representative nearest the employee's location unless the
       representative is not available.  In that case, the Area
       Representative may be contacted.  Provision 2
 
    Statement 3(B)
 
       If travel is necessary, Area Representatives may request a
       reasonable amount of official time for representation duties from
       their supervisor.  The request shall include the general nature of
       the representational duty, the names and location of the
       employee(s) involved, and the estimated time required.  The
       requested time shall be approved unless the current work needs of
       the Agency cannot be met, in which case mutually agreeable
       arrangements will be made to approve the request as soon as
       possible.  Each Union representative or unit employee authorized
       to be on official time for the representational activity shall
       record the item involved in the remarks section of their time card
       or similar document.  Seventy-five hundred dollars ($7500) of
       travel expenses for representation duties shall be provided in
       accordance with applicable law and Government-wide regulations,
       provided that no more than $5,000 of the allocation may be
       expended during the first two years.  Travel expenses necessary
       for a representative to present a case at an Arbitration or MSPB
       proceeding shall not be deducted from the allocation.  In
       addition, travel expenses for participation in FLRA proceedings
       shall be authorized in accordance with 5 CFR 2429.13.  Provision 3
       ARTICLE 14 ARBITRATION
 
    Section 4.
 
       Official time shall be granted to bargaining unit employees acting
       as the representative for employees or the Union.  Official time
       shall be granted to bargaining unit employees who testify as
       witnesses.  Official time for witnesses shall be limited to the
       time needed to travel to and from the proceeding and testify.
       Official time, transportation costs, and per diem shall be
       provided by the Employer for Union representatives within the area
       involved and all witnesses deemed necessary by mutual agreement of
       the Parties.  If the Parties cannot agree that a witness is
       necessary, the matter shall be submitted to the arbitrator, whose
       decision shall be final and binding.  Witnesses determined to be
       necessary by the arbitrator shall be compensated pursuant to that
       expressed above.  Travel time and expenses and official time are
       not authorized for expert advisors or observers.
 
    II.  Positions of the Parties
 
    As explained by the Union, the provisions are not intended to
 conflict with any applicable law or regulation.  Rather, they are
 limited to establishing the circumstances under which travel occurring
 in the context of union activities will be construed to be in the
 primary interest of the Government and, hence, official business for
 purposes of payment of incidental and otherwise proper travel expenses.
 The Union states that under the provisions the Agency can grant or deny
 requests for actual travel.  Thus, the Agency retains the ability to
 make appropriate case by case determinations regarding specific travel
 and/or expenses.
 
    The Agency contends that the provisions are not within the duty to
 bargain for the following reasons:
 
    a. They do 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. they are inconsistent with Federal law and Government-wide
 regulation;  and
 
    c. they conflict with an agency regulation for which a compelling
 need exists.
 
    III.  Analysis
 
    A. "Conditions of Employment"
 
    The Agency involved in this case makes essentially the same
 "conditions of employment" argument as 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.  It is rejected here for the same reasons
 as set forth in that case.
 
    B. Inconsistent with Federal Law or Government-Wide Rules or
 Regulations
 
    The Agency asserts that under the Travel Expense Act, 5 U.S.C. 5701
 et seq., and the Federal Travel Regulations (FTRs), 41 CFR, Part 101-7,
 as interpreted by the Comptroller General, determinations that travel
 expenses incurred in the context of union activity are in the primary
 interest of the Government and that ensuing expenses are payable from
 agency funds must be made by management alone on a case by case basis.
 
    In Customs Service, the Authority 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 provisions here concerning the circumstances under which otherwise
 appropriate travel expenses would be payable do not meet the statutory
 and regulatory standards discussed in Customs Service.  Moreover, the
 provisions do not preclude 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 provisions are inconsistent with law and Government-wide
 regulations must be rejected.
 
    C. Inconsistent with an Agency Regulation for which a Compelling Need
 Exists
 
    The Agency regulation upon which the Agency relies was issued by the
 Department of Agriculture and purports to establish procedures for the
 payment of travel and per diem expenses to union representatives when
 official time has been granted under section 7131(a) and (d) of the
 Statute.  The regulation provides that determinations on whether to pay
 travel and per diem may be made only on a case by case basis and solely
 by management.  The Agency argues that the regulation is essential to
 comply with the Travel Expense Act and implementing regulations.  In
 Customs Service the Authority has found that neither the Travel Expense
 Act nor the Federal travel Regulations require that determinations as to
 whether travel related to labor-management relations activities is
 primarily in the interest of the United States be made unilaterally by
 management and only on a