21:0575(73)NG - AFGE, Council 214 and Air Force, AFLC, Wright-Patterson AFB, Ohio -- 1986 FLRAdec NG
[ v21 p575 ]
21:0575(73)NG
The decision of the Authority follows:
21 FLRA No. 73
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL 214
Union
and
DEPARTMENT OF THE AIR FORCE,
AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE
BASE, OHIO
Agency
Case No. 0-NG-786
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)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). It raises issues
concerning the negotiability of the following Union proposal. This
dispute arose while the parties were bargaining over ground rules in
preparation for contract negotiations.
UNION PROPOSAL
Proposal 2(a). The employer agrees to provide official time,
and to pay per diem and constructive travel costs in accordance
with the Joint Travel Regulations and Civil Service Reform Act for
up to ten (10) union negotiating team members as follows:
(1) For five (5) calendar days at dates designated by The Union
at Wright-Patterson Air Force Base to prepare proposals,
counterproposals, etc., prior to the start of across-the-table
negotiations.
(2) For an initial across-the-table bargaining session of up to
four (4) weeks. If bargaining is not completed within that time,
the negotiating period will be extended by mutual consent, or a
second bargaining period will be established.
(3) for any additional sessions by the Federal Mediation and
Conciliation Service or the Federal Service Impasses Panel. (The
underscored portion is in dispute.)
II. Position of the Parties
The parties' arguments focus on the issues of whether additional
official time can be negotiated over and above that to which union
negotiators are entitled under the Statute and whether travel and per
diem expenses are within the duty to bargain. Under Section 7131(a)of
the Statute, the number of employees entitled to official time while
participating on the Union negotiating team would be limited to the same
number as the management team. The Union proposal here seeks negotiated
official time, as well as travel and per diem, for up to ten Union
negotiating team members because the Agency had expressed its intent to
limit its management negotiating team to three or less members.
The Union asserts that official time for Union team members, over and
above that to which there is an entitlement under Section 7131(a), is
negotiable under Section 7131(d). The Union specifically says it does
not intend its proposal to affect the size of the management negotiating
team. The Union argues that the negotiation of travel and per diem
expenses is a condition of employment and that the proposal is not
inconsistent with the Travel Expense Act as interpreted by the
Comptroller General.
The Agency contends that the parties have entered into a ground rules
agreement through the Mediation/Arbitration process. It argues that
this agreement has effectively resolved the parties' dispute over the
subjects of official time and travel and per diem. Because there is no
longer an outstanding dispute over these issues, it contends that the
petition is moot and moves that it be dismissed. As to the merits of
the proposal, the Agency argues that negotiation of official time for
Union negotiators over and above that provided in section 7131(a) of the
Statute conflicts with section 7131 of the Statute. It also asserts
that the proposal effectively seeks to determine the numerical size of
the Agency negotiating team and is nonnegotiable for that reason as
well. With respect to travel and per diem, the Agency asserts that it
is not a condition of employment within the meaning of the Statute
because payment of travel expenses is specifically provided for by law.
It also asserts that Congress did not intend to require agencies to pay
travel and per diem expenses of employees representing a union in
collective bargaining and that whatever discretion agencies may possess
under the Travel Expense Act to do so cannot appropriately be exercised
through negotiation.
III Analysis
a. Question of Mootness
As noted earlier this proposal was presented during ground rules
negotiations between the parties. Having reached an impasse in those
negotiations, and based on a recommendation by the Federal Service
Impasses Panel (FSIP), the parties submitted their ground rules dispute
to Mediation/Arbitration. The Mediator/Arbitrator held that the issue of
official time for additional union negotiators was nonnegotiable and
that the Union negotiators were strictly limited to the amount of
official time provided pursuant to section 7131(a) of the Statute.The
Mediator/Arbitrator therefore held that under the Statute the parties
could not negotiate over official time for Union negotiating team
members who exceeded the number of Agency team members. The
Mediator/Arbitrator directed the parties to choose between alternative
dispositions of their travel and per diem dispute. The alternatives
were:
(1) Negotiations would be held at Wright-Patterson Air Force
Base, Ohio -- the Agency's preferred location -- with the Agency
paying certain specified travel costs for up to seven Union
negotiating team members;
(2) Negotiations would be held at Tinker Air Force Base,
Oklahoma -- the Union's preferred location with each side bearing
the travel expenses for its own team.
The record indicates that the parties agreed to the second
alternative and that contract negotiations were held at Tinker Air Force
Base. Since the parties reached agreement as to the site of
negotiations and since that agreement was coupled with an agreement on
payment of travel expenses, the Authority finds that there is no longer
an outstanding issue as to whether travel and per diem is within the
parties' duty to bargain under the Statute. A valid, binding agreement
disposing of this aspect of the proposal has been reached by the
parties. Therefore, this portion of the petition is moot. See Federal
Employees Metal Trades Council, AFL-CIO, and Department of the Navy,
Mare Island Naval Shipyard, 7 FLRA 701 (1982).
The Authority wishes to point out that it has recently found a
proposal which would require payment by an agency of the travel expenses
of union representatives using official time to be within the duty to
bargain. National Treasury Employees Union and Department of the
Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986). That case, in the
Authority's view, addresses arguments similar to those which the parties
in this case raise as to the merits of the question of the negotiability
of travel and per diem. However, in view of the parties' agreement as
to the site of negotiations and the payment of travel expenses, no order
to bargain is appropriate or warranted here.
With respect to that portion of the petition concerning the
negotiation of additional official time for Union negotiators, the
Mediator/Arbitrator's aware was based on her determination that official
time for additional Union negotiators was nonnegotiable. The merits of
the Union's proposal were never considered nor was any agreement reached
with respect to this issue. Therefore, the Authority does not consider
this aspect of the petition moot.
B. Official Time Issue
The Union has specifically stated that the proposal is not intended
to prescribe the number of members on the Agency's negotiating team.
This interpretation comports with the plain language of the proposal.
The Agency's contention that the proposal effectively dictates the size
of its team is rejected.
The Authority has previously held that, under section 7131(d) of the
Statute, a proposal seeking more union negotiators than the number
designated by management and official time for those additional
negotiators is within the duty to bargain. American Federation of
Government Employees, AFL-CIO and U.S. Environmental Protection Agency,
15 FLRA 461 (1984) (Union Proposal 2). The Authority finds that the
official time provisions of this Union Proposal are within the duty to
bargain for the reasons set forth in that case.
The parties' arguments do not specifically address the aspect of the
proposal involving the types of activities for which official time will
be authorized. However, we note that under Section 7131(a) employees
representing unions in negotiation of a collective bargaining agreement
are entitled to official time for such purposes as attendance at impasse
proceedings. Additionally, the Authority has previously found that
under Section 7131(d) official time for union representatives to prepare
for negotiations, impasse resolution and counterproposals is a
negotiable matter. Federal Uniformed Firefighters, Local F-159 and U.S.
Army Armament Research & Development Command, Dover, New Jersey, 3 FLRA
317 (1981).
IV. Conclusion
The Authority finds that, because the parties have reached an
agreement on the travel and per diem issue, the Union's petition as to
this issue is moot. However, as far as the issue of official time for
additional Union negotiators is concerned, the petition has not been
rendered moot. The Authority finds that this aspect of the Union
Proposal is within the duty to bargain under Section 7131(d) 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 that portion of
the proposal which relates to authorizing official time for Union
negotiating team members. /*/ IT IS FURTHER ORDERED that that portion
of the petition which relates to per diem and travel costs be, and it
hereby is, dismissed.
Issued, Washington, D.C. April 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, III, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In finding this portion of the proposal within the duty to bargain
the Authority makes no judgment as to its merits.