22:0522(55)NG - NLRBU and NLRB -- 1986 FLRAdec NG



[ v22 p522 ]
22:0522(55)NG
The decision of the Authority follows:


 22 FLRA No. 55
 
 NATIONAL LABOR RELATIONS BOARD 
 UNION
 Union
 
 and
 
 NATIONAL LABOR RELATIONS BOARD
 Agency
 
                                            Case No. 0-NG-1112
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    The petition for review in this case comes 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).
 It raises issues concerning the negotiability of three alternative
 proposals presented by the Union involving the payment by the Agency of
 travel and per diem expenses to employees when engaged in
 representational activities.
 
                           II.  Union Proposals
 
                       Alternative Proposal Number 1
 
          During the term of the Agreements, the Agency will pay the
       travel and per diem expenses of NLRBU employee representatives
       participating:  (1) on the Incentive Awards, EEO and Health and
       Safety Committees;  (2) in consultations at the National Level;
       (3) in negotiations at the Local level;  and (4) in mutually
       agreed upon meetings and visits to resolve disputes under Article
       28, Section 3(a), paragraphs 1 and 2.
 
                       Alternative Proposal Number 2
 
          (a) During the term of the Agreements, the participation of the
       NLRBU in the activities of the Incentive Wards, EEO and Health and
       Safety Committees will be considered to be in the primary interest
       of the government by the Agency and the Agency will pay the travel
       and per diem expenses of NLRBU employee representatives serving on
       such committees.
 
          (b) During the term of the Agreements. the payment of the
       travel and per diem expenses of the NLRBU employee representatives
       when they attend consultations (at the National level), engage in
       negotiations at the Local level, or in mutually agreed upon
       meetings and visits to resolve disputes under Article 28, Section
       3(a), paragraphs 1 and 2, will be considered to be in the primary
       interest of the government by the Agency and Agency will pay such
       expenses.
 
                       Alternative Proposal Number 3
 
          (a) During the term of the Agreements, when the Agency
       determines that the participation of the NLRBU in the scheduled
       activities of the Incentive Awards, EEO and Health and Safety
       Committees is in the primary interest of the government, the
       Agency will pay the travel and per diem expenses of NLRBU employee
       representatives serving on such committees.
 
          (b) During the term of the Agreement, when the Agency
       determines that the payment of the travel and per diem expenses of
       NLRBU employee representatives participating in consultations (at
       the National level), engaged in negotiations at the Local level,
       or in mutually agreed upon meetings and visits to resolve disputes
       under Article 28, Section 3(a), paragraphs 1 and 2, is in the
       primary interest of the government, the Agency will pay such
       expenses.
 
                      III.  Positions of the Parties
 
    As explained by the Union, Alternative Number 1 seeks to obligate the
 agency to pay the travel and per diem expenses of field office Union
 employee representatives who by law and agreement are entitled to
 official time under the circumstances described in the proposal.  In
 presenting this Alternative, the Union states that it presupposes the
 negotiability of travel and per diem expenses without regard to the
 "primary interest test." /1/ The Union states further that Alternative
 Number 2 is intended to apply only if Alternative Number 1 is determined
 to be nonnegotiable because a "primary interest test" must be made in
 order for travel and per diem expenses to be paid.  Finally, Alternative
 Number 3 is intended to apply only if Alternative Numbers 1 and 2 are
 determined to be nonnegotiable because a primary interest test must be
 made and such a test is in the sole discretion of the Agency to make.
 
    The Agency contends that all of the Alternatives are nonnegotiable
 because the reimbursement of Federal employees for travel expenses is a
 matter specifically provided for by statute and thus is not a condition
 of employment within the meaning of section 7103(a)(14) of the Statute.
 The Agency also contends that Alternative Number 1 is nonnegotiable
 because it disregards the primary interest test and thus conflicts with
 law and Government-wide rules and regulations, and that Alternative
 Number 2 is nonnegotiable because the determination of primary interest
 cannot be made bilaterally or in advance of actual situations.
 
                               IV.  Analysis
 
    The Union's Alternative Proposals and the positions of the parties in
 this case are identical in effect to those at issue in National Labor
 Relations Board Union and National Labor Relations Board, The Board and
 Office of the General Counsel, 22 FLRA No. 50 (1986), also issued this
 day.  There the Authority determined that all three Alternative
 Proposals concern a condition of employment based on the reasons set
 forth in U.S. Customs Service (see fn. 1).
 
    We also found that conformance with the requirements specified by the
 Comptroller General in administering and interpreting the Travel Expense