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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included a ninth provision which the Union has since withdrawn.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:
. . . . . . .
b. Rules and regulations of appropriate authorities and other
government-wide regulations in existence at the time this
Agreement was approved;
c. Published Agency policies and regulations in existence at
the time this Agreement was approved; and
d. Subsequently published policies, rules, and regulations
which are not in conflict with this Agreement, which are required
by law, or which are authorized by the terms of a controlling
agreement at a higher agency level. The effect of such changes as
they affect the personnel policies, practices and conditions of
employment of employees in the unit shall be negotiated, if
appropriate and requested by the Union.