21:0761(95)NG - NTEU and IRS -- 1986 FLRAdec NG

 21 FLRA No. 95
 
 NATIONAL TREASURY EMPLOYEES 
 UNION
 Union
 
 and
 
 INTERNAL REVENUE SERVICE
 Agency
 
                                            Case No. 0-NG-1111
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         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 the following two
 proposals.
 
                              II.  Proposals
 
                             Union Proposal 1
 
          Article X Mid-Term Agreements, Section 3-A5 - Those receiving
       official time pursuant to (d) above will receive reasonable travel
       and per diem expenses to attend those negotiations.
 
                             Union Proposal 2
 
          Article 6 Stewards, Section 2H - When a grievant, appellant or
       employee is authorized official time and expenses to travel to any
       of the above, one union representative will also receive time and
       expenses to travel as long as he/she is the designated
       representative in the matter.
 
          (Only the underlined portion of the proposal is in dispute.)
 
                      III.  Positions of the Parties
 
    As explained by the Union, the proposals are not intended to conflict
 with any applicable law or regulation.  The Union's position is that the
 proposal's "reasonable" standard allows for all relevant factors case
 law, regulations and other appropriate factors -- to be considered in
 determining what is or is not reasonable.  Indeed, the Union states that
 the Agency could deny payment of travel expenses where reimbursement for
 a particular event is barred by law or regulation, where there is no
 nexus to government interests or when it is not in the best interest of
 the government.
 
    The Agency contends that the proposal is 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;  and
 
          b.  they are inconsistent with Federal law or Government-wide
       regulation.
 
                               IV.  Analysis
 
                      A.  "Conditions of Employment"
 
    The Agency involved in this case makes essentially the same
 "conditions of employment" argument 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 same reasons set forth
 in that case.
 
    Representation of employees in matters concerning their employment
 affects the working conditions of those employees.  A proposal seeking
 payment of travel expenses incurred because of such representational
 activity clearly involves a condition of employment not excepted from
 the definition thereof.
 
    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, a proposal concerning such payment is
 not precluded as involving a matter specifically provided for by Federal
 statute so as to be excepted from the definition of conditions of
 employment.
 
        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. Sections 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.
 
    For reasons set forth in its decision 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 attendant to labor-management relations
 activities is sufficiently within the interest of the United States so
 as to constitute official business and, hence, to pay for resulting
 appropriate expenses from Federal funds.  The exercise of that
 discretion is subject to the negotiations process.  The Agency here
 makes no specific argument that the proposals do not meet the statutory
 and regulatory standards discussed in Customs Service.  Moreover, as
 noted in the Union's Position, the proposals envision case by case
 determinations as to 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 contention that the proposals are inconsistent
 with law and Government-wide regulations must be rejected.
 
                              V.  Conclusion
 
    Based on the foregoing analysis, the Authority finds that the
 proposals concern a condition of employment which is within the Agency's
 administrative discretion, and they are not inconsistent with law or
 Government-wide regulation.  Therefore, they are within the duty to
 bargain.  /*/
 
                                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 Union Proposals 1
 and 2.
 
    Issued, Washington, D.C., May 12, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) In finding these proposals within the duty to bargain, the
 Authority makes no judgment as to their merits.