22:0388(38)NG - AFGE, Council of Meat Grading Locals and Agriculture, Agricultural Marketing Service, Meat Grading and Certification Branch -- 1986 FLRAdec NG



[ v22 p388 ]
22:0388(38)NG
The decision of the Authority follows:


 22 FLRA No. 38
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, COUNCIL OF MEAT GRADING 
 LOCALS, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF AGRICULTURE, 
 AGRICULTURAL MARKETING SERVICE, 
 MEAT GRADING AND CERTIFICATION 
 BRANCH
 Agency
 
                                            Case No. 0-NG-1000
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and concerns the
 negotiability of six provisions relating to travel and per diem and two
 relating to reduction-in-force (RIF).  The Union's petition also
 included a ninth provision which the Union has since withdrawn.  The
 underlined portions of the provisions were disapproved by the Agency
 head in reviewing a negotiated agreement under section 7114(c) of the
 Statute.
 
                    II.  Travel and Per Diem Provisions
 
                             (Provisions 1-6)
 
                        Employer-Union Cooperation
 
                                Section 2.1
 
          The Employer and the Union agree to establish a National Joint
       Labor-Management Committee consisting of three (3) members from
       each party.  However, if the NJLM Committee should meet in the
       official duty station of a local union president, if not already a
       member of the Committee, he or his designee, located in the same
       duty station, will be invited to attend the meeting.  Similarly,
       the local Main Station Supervisor may also attend.  It will meet
       semi-annually -- usually during the months of April and October --
       if there are subjects to be discussed at a location designated by
       the Chief of the Meat Grading and Certification Branch.  If either
       the Union or the Employer has topics for discussion, they will
       notify t eir counterpart in March or September of each year that a
       meeting is requested.  The parties agree to exchange a list of
       subjects to be discussed at least fifteen (15) working days prior
       to the date of the scheduled meeting.  The arrangements for these
       meetings will be worked out by mutual agreement between the
       members of the Committee.  Transportation and per diem expenses
       for the meeting will be borne by the Employer according to
       applicable regulations.
 
                                Section 2.2
 
          A Joint Labor-Management Committee, consisting of the Main
       Station Supervisor, or his designee, and the President of the
       Local, or his designee, shall be established in those main
       stations in which a local has been organized.  The Committee may
       be expanded, at the discretion of the members to include an
       additional representative of the main station and the local.  If
       established, the Committee will meet monthly at the Main Station
       office or another location if there are subjects to discuss at the
       concurrence of the Main Station Supervisor and the President of
       the Local, if a situation precludes a "monthly" meeting, it can be
       rescheduled at the nearest agreeable time.  Date, time and place
       are to be determined by the Main Station Supervisor, after
       consultation with the Union.  A reasonable amount of official time
       shall be provided for these meetings.  Transportation and per diem
       expenses of the participating employee will be borne by the
       Employer.  Copies of the minutes will be provided to both parties.
 
                              Section 6.5a(2)
 
          In regard to travel expenses for the grievant and
       representative for the first step of the grievance procedure, the
       Employer will pay one-half (1/2) of such expense up to $125.00.
 
                                 ARTICLE 7
 
                                Arbitration
 
                                Section 7.3
 
          The arbitration hearing will be held at a site designated by
       the Employer and if possible during the regular day shift hours of
       the basic workweek.  Official time will be allowed for the
       employee, his/her representative, and witness(es) not to exceed
       three (3) to present material in arbitration.  The employee and
       his/her witness(es) will be allowed official travel time,
       transportation expenses, and per diem expenses according to
       applicable regulations and instructions to attend the hearing.
       The employee's representative will be allowed official travel time
       in accordance with applicable regulations and instructions not to
       exceed 8 hours.  Travel expenses for the representative will be
       allowed according to applicable regulations and instructions not
       to exceed to total of $200.  Official time for the employee and
       his/her representative to prepare for the arbitration will be
       granted in accordance with Section 1.11 of this Agreement.  If the
       employee's representative is not an employee of the Meat Grading
       and Certification Branch, the President of the National Meat
       Grader Council (NMGC) will be granted travel time, transportation
       expenses, and per diem expenses as prescribed above for the
       representative to assist the designated representative.
 
          When Employer initiated arbitrations are filed, the President
       of the NMGC and necessary witnesses not to exceed (3), shall be
       provided reasonable preparation time which shall not be counted
       against bank hours of representation from 1.11 of this Agreement.
       The Union representative and witnesses not to exceed three (3),
       will also receive official time to present the arbitration and
       official travel time, transportation expenses, and per diem
       expenses in accordance with applicable regulations and
       instructions.
 
                               ARTICLE 10-I
 
                           Disciplinary Actions
 
                              Section 10.3(h)
 
          Reasonable and necessary official time will be provided the
       Union representative in presenting any response(s) under the
       provisions of this Article.  Travel expenses not to exceed $125.00
       combined will be paid to the employee and the employee's
       representative.
 
                               ARTICLE 10-II
 
                              Adverse Actions
 
                              Section 10.5(f)
 
          Reasonable and necessary official time will be provided the
       Union representative in presenting any response(s) under the
       provisions of this Article.  Travel expenses not to exceed $125.00
       combined will be paid to the employee and the employee's
       representative.
 
                       A.  Positions of the Parties
 
    The Agency states that although the negotiated agreement was executed
 after the Supreme Court's decision in Bureau of Alcohol, Tobacco and
 Firearms v. FLRA, 464 U.S. 89 (1963) (0ATF), the disapproved language
 was agreed to Prior to that decision.  It asserts that the disputed
 portions of 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.
 
    The Union asserts that the provisions represent negotiation of a
 condition of employment about which the Agency has discretion, that is,
 whether to allow travel and per diem for travel occurring in the context
 of union representational activities.  It contends that the Agency has
 not established a compelling need for Personnel Letter 711-10, the
 agency regulation which is claimed to bar negotiations.
 
                               B.  Analysis
 
                       1.  Conditions of Employment
 
    The Agency 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) appealed sub nom. Department of the Treasury, U.S. Customs
 Service v. FLRA, No. 86-1192 (D.C. Cir. Mar. 27, 1986).  The Authority
 rejected that argument in Customs Service.  It is rejected here for the
 same reasons as set forth in that case.
 
           2.  Inconsistent with Federal Law or Government-Wide
 
 Rules or Regulations
 
    Under the Travel Expense Act, 5 U.S.C. Sections 5701 et seq., and the
 Federal Travel Regulations (FTRs), 41 CFR, Part 101-7, as interpreted by
 the Comptroller General, /1/ agencies possess discretion to make
 determinations that travel in the context of union activity is
 sufficiently within the interest of the Government to constitute
 official business.  Upon this determination, otherwise proper travel and
 per diem expenses may be paid from agency funds.  Contrary to the
 Agency's argument, nothing in these authorities requires that this
 necessary determination be made only by management and only on a case by
 case basis.  Customs Service.  The Agency here makes no argument that
 travel flowing from the particular types of activities and circumstances
 set forth in the provisions could not meet this required standard.
 Additionally, nothing in the provisions themselves or the parties'
 arguments suggests that these provisions would preclude case by case
 determinations as to the appropriateness of specific travel and expenses
 which are necessary and proper under law and governing regulations.
 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.
 
          3.  Inconsistent with an Agency Regulation for Which a
 
                Compelling Need Exists
 
    The Agency regulation, Personnel Letter No. 711-10, 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 Comptroller General's
 decision in 46 Comp. Gen. 21 (1966).  As set forth above, we have found
 that neither the Comptroller General's decision nor the authorities to
 which it applies require that a determination that travel in the context
 of a particular activity is sufficiently within the interest of the
 Government so as to constitute official business be made unilaterally
 and only on a case by case basis.  Therefore, there is no support for
 the Agency's assertion that its regulation implements in an essentially
 nondiscretionary manner a mandate to it by an outside authority.  Its
 argument that a compelling need exists for Personnel Letter No. 711-10
 cannot be sustained.
 
                              C.  Conclusion
 
    Based on the foregoing analysis, the Authority finds that the
 provisions concern a condition of employment and are not inconsistent
 with law or Government-wide regulation.  The provisions are not barred
 from negotiations because they are inconsistent with an agency
 regulation for which a compelling need exists.  Therefore, they are
 within the duty to bargain.  /2/
 
                            III.  RIF Proposals
 
                             (Provisions 7-8)
 
                               Section 12.7
 
          Competitive levels shall be established in accordance with FPM
       Chapter 351 and Agency regulations.
 
                               Section 12.20
 
          The Employer will establish re-employment priority lists
       composed of all Category I and II employees separated due to RIF
       in accordance with FPM Chapter 351 and 330, and the Department and
       Agency Re-Employment Priority Program.
 
                       A.  Positions of the Parties
 
    The Agency argues that these provisions are nonnegotiable because
 they fail to include reference to Department of Agriculture regulations
 for which there is a compelling need.
 
    The Union asserts that, because the contract contains a provision
 relating to the agreement as a whole which acknowledges the
 applicability of those agency regulations in effect at the time of
 contract approval, the Agency's declaration of nonnegotiability is
 frivolous.  /3/ It contends that the language encompasses Department of
 Agriculture regulations.  It also argues that the Agency has failed to
 establish a compelling need for its regulations.
 
                       B.  Analysis and Conclusions
 
    The Agency contends that the term "Agency" as contained in the
 contract, does not encompass the Department level but is limited to its
 primary national subdivisions -- as relevant to this case, the
 Agricultural Marketing Service.  It asserts with respect to both
 provisions that the Department regulations, upon which it relies, are a
 nondiscretionary implementation of Office of Personnel Management (OPM)
 regulations relating to RIFs and Re-employment Priority List.  The
 Authority notes that the language of the provisions specifically
 requires compliance with the Federal Personnel Manual (FPM) Chapters
 which reflect the OPM regulations.  The Agency has not shown any actual
 inconsistency between the provisions and the Departmental regulations
 nor is any apparent to us.
 
    As to the Re-employment Priority List provision, the Agency suggests
 that there may be a discrepancy between the number of Lists required by
 the provision and the Department regulation.  The regulation provides
 for a single agency-wide list, while the provision refers to lists in
 plural.  However, the Agency has not elaborated on this point and has,
 in our view, simply failed to establish that the provisions are
 inconsistent with the Agency regulations for which it claims a
 compelling need exists.  See Association of Civilian Technicians,
 Pennsylvania State Council and the Adjutant General, Department of
 Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 50 (1980).
 Consequently, the Agency's contention that these provisions are
 nonnegotiable cannot be sustained.  See American Federation of
 Government Employees, AFL-CIO, Local 1928 and Department of the Navy,
 Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451
 (1980) in which the Authority stated that the agency bears the burden of
 demonstrating that a proposal conflicts with an agency-wide regulation
 for which a compelling need exists.
 
                                IV.  Order
 
    Accordingly, Pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall rescind its disapproval
 of Provisions 1 through 8 which were bargained on and agreed to by the
 parties at the local level.
 
    Issued, Washington, D.C., July 7, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) 46 Comp. Gen. 21 (1966)
 
    (2) In finding the provision to be within the duty to bargain the
 Authority makes no judgment as to its merits.
 
    (3) The contract language to which the Union refers states in
 relevant part:
 
                                 ARTICLE 1
 
          Section 1.7 Laws, Regulations, and Policies:  In the
       administration of all matters covered by this Agreement, officials
       and employees are governed by:
 
                       . . . .