22:0451(45)NG - NAAE and DOA, Animal And Plant Health Inspection Service -- 1986 FLRAdec NG
[ v22 p451 ]
The decision of the Authority follows:
22 FLRA No. 45 NATIONAL ASSOCIATION OF AGRICULTURAL EMPLOYEES Union and U.S. DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION SERVICE Agency Case No. 0-NG-1028 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It raises issues concerning the negotiability of two Union proposals. The Union presented these two proposals in response to the issuance of an Agency regulation which set forth procedures regarding the payment of travel and per diem expenses to employee union representatives. Among other things, the Agency regulation, issued in reaction to the Supreme Court's decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF), declared unenforceable any labor agreements providing for the payment of travel and per diem expenses to union representatives. II. Union Proposals (Union Proposal 1) NAAE requests to bargain to the full extent allowed by law, rule and regulation on Personnel Letter No. 711-10, payment of travel and per diem expenses for employees representing labor organizations. (Union Proposal 2) In regard to NAAE's request to bargain on Personnel Letter No. 711-10, NAAE's initial proposal is that PPQ honor the letter and intent of the alleged current collective bargaining agreement provisions concerning payment of travel and per diem expenses for employees representing labor organizations until a new collective bargaining agreement is negotiated. III. Positions of the Parties The Union states that Union Proposal 1 is intended to request bargaining to the extent legally permissable over what it contends was the Agency's proposed change in the past practice of paying travel and per diem expenses for employee union representatives. Union Proposal 2 seeks to continue the past practice, as embodied in a collective bargaining agreement negotiated prior to the BATF decision, with respect to payment of travel and per diem. The Union describes this practice as recognizing an automatic right to travel and per diem for employee union representatives attending "official meetings." Prior to 1981 the Union's name was Federal Plant Quarantine Inspectors' National Association (FPQINA). The Agency asserts that the Union has never filed a petition to change the name on its unit recognition or certification to reflect the 1981 change. Because there is no certification showing the Union, as currently named, as exclusive representative of the bargaining unit involved, the Agency argues that the Union lacks standing to file the petition in this case. As to the merits of the proposals, the Agency contends that both lack sufficient specificity to comply with the conditions for review of negotiability issues which are set forth in the Statute and the Authority's Rules and Regulations. It also argues that both proposals conflict with an Agency regulation for which a compelling need exists. As to Proposal 2, the Agency argues that the contract provisions which the proposal seeks to continue are inconsistent with the Supreme Court's decision in BATF and, therefore, unenforceable. It contends that they are also inconsistent with the Travel Expense Act, the Federal Travel Regulations and a Comptroller General's decision, 46 Comp. Gen. 21 (1966), which limits payment of travel and per diem to employee union representatives to those situations where it has been determined that their travel is in the primary interest of the Government. The Agency asserts that this necessary determination can only be made on a case by case basis and unilaterally by management. The Agency also contends that travel and per diem is a matter specifically provided for by Federal statute and, consequently, is not a condition of employment under the Statute. The Union did not file a response to the Agency's statement of position. IV. Procedural Issues A. Legal Standing of the Union As to the Agency's argument that the Union's name does not correspond to that listed to the documents relating to its recognition as exclusive representative for the bargaining unit involved, the Authority finds that such a question should more appropriately be raised through representation procedures rather than negotiability procedures. Therefore, in this decision the Authority decides only the negotiability issues raised under section 7105(a)(2)(D) and (E) of the Statute. If it wishes, the Agency may pursue whatever question it has about the Union's status as exclusive representative by filing an appropriate representation petition. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 at 306, n. 6 (1984). B. Lack of Specificity Union Proposal 1 is nothing more than a general request to bargain over the Agency's Personnel Letter which articulated its policy concerning payment of travel and per diem to employee union representatives. This proposal is not sufficiently specific and delimited and does not meet the conditions for review set forth in section 2424.1 of the Authority's Rules and Regulations. American Federation of Government Employees, AFL-CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982) (Union Proposals 2-4). However, the Authority would like to note that it has previously rejected the Agency's argument that its Personnel Letter is not subject to bargaining because it is an agency-wide regulation for which a compelling need exists. The argmuents presented in this case are identical to those presented in American Federation of Government Employees, AFL-CIO, National Council of Federal Grain Inspection Locals and U.S. Department of Agriculture, Federal Grain Inspection Service, 21 FLRA No. 21 (1986) petition for review filed sub nom. Department of Agriculture, Federal Grain Inspection Service v. FLRA, No. 86-1295 (D.C. Cir. May 21, 1986). The Agency's argument is rejected in this case for the same reasons that it was rejected in that case. Union Proposal 2 is distinguishable from Union Proposal 1 in that it is sufficiently specific and delimited to meet the statutory and regulatory conditions for review. As contrasted with a general request for bargaining, it specifically proposes the continuation of previous practices as provided in the parties' agreement instead of the adoption of the new practices set forth in the Agency's Personnel Letter. The Agency's assertion that Union Proposal 2 is procedurally deficient is rejected. See National Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA 68 (1980), remanded as to other matters sub nom. Department of Defense, Department of the Army v. FLRA, 685 F.2d 641 (D.C. Cir. 1982). V. Analysis and Conclusions as to Union Proposal 2 A. Conditions of Employment In National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for review filed sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No. 86-1198 (D.C. Cir. Mar. 27, 1986), the Authority rejected the same argument as that made here, namely, that a proposal relating to travel and per diem for employee union representatives did not concern conditions of employment. For the reasons expressed in that decision, the Authority finds that Union Proposal 2 does concern a condition of employment. B. Inconsistent with Federal Law and Government-wide Rules and Regulations As interpreted by the Comptroller General, /1/ the Travel Expense Act and Federal Travel Regulations (FTRs) allow payment of otherwise proper travel and per diem expenses to employee union representatives when it has been determined that they have been incurred primarily in the interest of the Government. In Customs Service the Authority, noting that this determination was within the agency's discretion, found a proposal which effectively sought to negotiate over the exercise of that discretion within the duty to bargain. Contrary to the Agency's argument, the Authority finds that nothing in the Travel Expense Act, the FTRs or the Comptroller General's decision requires that this necessary determination be made only by management and only on a case by case basis. See Customs Service. However, the determination must be made in order for travel expenses to be paid from agency funds. Unlike the circumstances in Customs Service, where the union expressly stated that it was seeking to negotiate over this determination, there is nothing in the record of this case to show that Union Proposal 2 would allow for this determination to be made as a prerequisite to payment of any travel and per diem for travel relating to union activities. Rather, as described by the Union, this proposal appears to require payment of travel and per diem without regard to whether the statutory and regulatory requirements for payment, discussed in Customs Service, have been met. /2/ Because the Authority cannot conclude that Union Proposal 2 would allow for compliance with the requirements of the Travel Expense Act and the FTRs, it finds the proposal is not consistent with Federal law and Government-wide rule or regulation. /3/ It, therefore, is not within the duty to bargain. VI. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulation, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., July 9, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) 46 Comp. Gen. 21 (1966). (2) As noted in Customs Service, for a travel and per diem proposal to be found negotiable, it must also allow for compliance with the various other requirements of the Travel Expense Act and FTRs as well as the primary interest of the Government determination. (3) The FTRs are a Government-wide rule or regulation. Customs Service, n. 2.