21:1101(126)NG - NTEU and Dept. of the Treasury, IRS -- 1986 FLRAdec NG
[ v21 p1101 ]
The decision of the Authority follows:
21 FLRA No. 126 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE Agency Case No. 0-NG-1013 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 a single Union Proposal. II. Union Proposal The employer will pay travel and per diem for all union employee negotiators. A. Positions of the Parties 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 and 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. In its response, the Union states that the proposal "must conform to the Travel Act -- a point we do not contest . . . ." See Union Response at page 4. Finally, the Union maintains that its proposal is intended to provide travel and per diem reimbursement only to unit employees authorized to be at the bargaining table on official time. B. Analysis 1. "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) appeal docketed sub nom. Department of Treasury, U.S. Customs Service v. FLRA, Case No. 86-1198 (D.C. Cir. March 27, 1986). The Authority rejected that argument in Customs Service and it is rejected here for the same reasons set forth in that case. 2. Inconsistent with Federal Law and Goverment-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 our 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 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. There is no indication in the record that the Union intends the proposal to be applied contrary to the Federal Travel Regulations. On the contrary, we note that the Union's Response indicates that the proposal is to be read to be in conformity with the Travel Act. Given these circumstances, and for the reasons fully expressed in Customs Service, the Agency's assertion that the proposal is inconsistent with law and Government-wide regulations must be rejected. 3. Limited to Those Employee/Negotiators Who Are Receiving Official Time The Agency contends that the proposal would entitle employee/negotiators who are not receiving official time to travel and per diem. However, in our view the proposal does not necessarily 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. We adopt the Union's interpretation of its proposal for purposes of our decision noting, in any event, that nothing in our analysis in Customs Service indicates that travel and per diem payments depend upon a contemporaneous grant of official time under section 7131. Instead, the negotiability of travel and per diem is based on consideration of whether the travel involved is in the primary interest of the Government so as to constitute "official business". Consequently, we find the Agency's contention not to be supported. C. 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. /*/ III. 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.