22:0492(51)NG - NWSEO, MEBA, and Commerce, National Weather Service -- 1986 FLRAdec NG



[ v22 p492 ]
22:0492(51)NG
The decision of the Authority follows:


 22 FLRA No. 51
 
 NATIONAL WEATHER SERVICE EMPLOYEES 
 ORGANIZATION, MEBA, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF COMMERCE 
 NATIONAL WEATHER SERVICE
 Agency
 
                                            Case No. 0-NG-1116
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    This case is 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) and concerns the
 following Union proposal which arose during the course of negotiations
 on ground rules for a new collective bargaining agreement between the
 parties:
 
          Travel and per diem will be granted only to those bargaining
       unit employees identified in accordance with this agreement whose
       official duty station is outside the Washington, D.C. commuting
       area.  On Thursday, Friday and Saturday of the previous week, team
       members will be granted official time for preparation if he/she
       would normally be in a duty status.  No per diem will be paid for
       preparation time.  (Only the underscored portion is in dispute.)
 
                       II.  Position of the Parties
 
    The Agency essentially contends that the proposal is outside the
 scope of bargaining because it does not concern conditions of employment
 within the meaning of section 7103(a)(14) of the Statute.  In support of
 this contention it argues that the subject of travel expenses is
 specifically provided for by the Travel Expense Act, 5 U.S.C. Sections
 5701, et seq.  In addition, the Agency contends that the disputed part
 of the proposal is inconsistent with certain Comptroller General
 decisions interpreting and applying the Travel Expense Act.
 
    The Union states that the intent of the disputed portion of the
 proposal is to provide its negotiators, who are employed in the
 bargaining unit throughout the country, travel and per diem expenses
 when they come to Washington, D.C. to negotiate over a new collective
 bargaining agreement.  The Union waived its right to file a response to
 the Agency's statement of position.
 
                              III.  Analysis
 
    Subsequent to the filings in this case the Authority issued its
 decision 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., March 27, 1986).  There the Authority
 rejected the agency's contention that the proposal in that case, which
 required the payment of travel and per diem expenses for employees
 serving as union negotiators, involved a matter specifically provided
 for by Federal statute so as to be expected from the definition of
 conditions of employment.  For the reasons and cases cited in U.S.
 Customs Service at 7-8, the Authority also rejects this same contention
 with respect to the present case.  In addition, as we explained more
 fully in that decision, the Comptroller General, who administers and
 interprets the Travel Expense Act, has ruled that an agency is not
 precluded from making payment of otherwise proper travel expenses and
 per diem allowances to union representatives upon a determination that
 it serves the convenience of the agency or is otherwise in the primary
 interest of the Government.  See 46 Comp. Gen. 21 (1966).  The Authority
 found that determinations concerning whether to make such payments are
 within the discretionary administrative authority of an agency and that
 existing Authority precedent obligates an agency to exercise that
 discretion through negotiation unless precluded by regulatory or
 statutory provisions.
 
    In U.S. Customs Service we relied upon the union's explanation that
 its proposal sought agreement as to what categories of union activities
 shall be construed to be in the primary interest of the Government.  The
 union specifically stated that once a determination is made that an
 activity is in the primary interest of the Government, "of course, all
 the specific Travel Regulations apply." U.S. Customs Service at 7.  This
 factor was crucial in our decision that the proposal in that case was
 negotiable because it was clear that the proposal was to be implemented
 in a manner consistent with governing statutory and regulatory
 requirements.  For example, the proposal was not intended to require the
 agency to authorize either specific travel or expenses which did not
 comport with the regulatory requirements and restrictions stated in the
 Federal Travel Regulations (FTRs).  The proposal was not intended to,
 and could not, require the Agency to use specific authorization
 procedures and practices relating to actual travel which conflicted with
 the FTRs.  It would not foreclose individual determinations regarding
 the propriety under the FTRs of authorizing particular travel and
 expenses.  Moreover, to the extent that case-by-case determinations are
 required under law and regulation, the proposal would not be
 inconsistent with such procedures.  On this basis, the Authority
 rejected the contention of the agency in that case that the proposal was
 inconsistent with Federal law and Government-wide regulations.
 
    The language of the proposal in this case is similar to the one held
 negotiable in U.S. Customs Service.  However, for the following reason
 the Authority must find this proposal outside the duty to bargain.  In
 its statement of position, in addition to its other contentions, the
 Agency also states that the proposal cannot be read as a demand to
 negotiate its determination of whether the payment of travel and per
 diem is in the "primary interest" of the Government, the determination
 required by the Comptroller General in 46 Comp. Gen. 21 (1966).
 Although the Union was given the opportunities normally afforded parties
 in accordance with the Authority's Rules and Regulations, it
 specifically waived its right to file a response to the Agency's
 contentions.  The Union thereby failed to rebut the Agency's
 interpretation that the proposal is not intended as a demand to
 negotiate the Agency's determination of whether the payment of travel
 and per diem is in the primary interest of the Government.  Under these
 particular circumstances, the Authority is constrained to accept the
 Agency's interpretation as to the meaning of the proposal.  If the
 Union's intent is different than established in the record of this case,
 then it may, of course, revise its proposal at an appropriate time to
 more accurately reflect its intent so as to render the proposal
 negotiable.  See, for example, National Treasury Employees Union and
 Department of the Tr