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 ]
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 The Union's petition also included a ninth provision which the Union has since withdrawn.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: . . . .