23:0010(3)NG - National Joint Council of Food Inspection Locals, AFGE and Food Safety and Inspection Service, Agriculture -- 1986 FLRAdec NG
[ v23 p10 ]
The decision of the Authority follows:
23 FLRA No. 3 NATIONAL JOINT COUNCIL OF FOOD INSPECTION LOCALS, AFGE, AFL-CIO Union and FOOD SAFETY AND INSPECTION SERVICE, U.S. DEPARTMENT OF AGRICULTURE Agency Case No. 0-NG-1061 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 concerns the negotiability of six provisions on travel and per diem. /1/ The Agency head disapproved the provisions in reviewing a negotiated agreement under section 7114(c) of the Statute. The disapproval was limited to those aspects of the provisions which would allow payment of travel and per diem expenses for employee representatives. The disputed provisions follow: (Provision 1) ARTICLE V -- UNION REPRESENTATIVES, GENERAL PROVISIONS AND EXPENSES Section A -- Representatives: The Chairman of the Council, the Presidents of the Regional Councils, the Presidents of affiliated Locals and designated plant representative or their designees are recognized as Union representatives at their respective organizational levels within the Service . . . Similarly, the Local President(s) will designate to the appropriate area office one (1) plant representative for each plant having an assigned supervisor who will be expected to deal with the Service supervisor of that plant on day-to-day matters covered by this Agreement or applicable regional agreements. There will be no restriction upon the Local President with respect to whom he/she appoints as a plant representative. However, if a Local President appoints an individual who is located over twenty-five (25) miles from the plant to which he/she was appointed to serve as a plant representative, the entitlement to official time and expense shall be restricted to that which he/she would normally have received had he/she been located within the twenty-five (25) mile radius. (Provision 2) Section C -- Official Expenses: Per diem and travel expenses at official rates shall be paid Union representatives to attend meetings, and official proceedings, and to present grievances pursuant to paragraphs 1(a), (b), and (c) of Section B. However, per diem and travel expenses not to exceed $150 shall be paid representatives to attend an oral conference pursuant to paragraph 1(c) of Section B. (Provision 3) ARTICLE XIII -- HEALTH AND SAFETY Section J -- Duty Time: Each Union representative serving on a Health and Safety Committee shall be afforded official time to engaged in such tasks. If such tasks involve travel, official travel allowances will be paid. (Provision 4) ARTICLE XXX -- DISCIPLINARY ACTION Section D -- Procedures: Disciplinary Actions shall be initiated and processed in accordance with applicable regulations. Grievances over disciplinary action decisions shall be processed in accordance with the provisions of Article XXXII, and of Article XXXIII if arbitration is invoked. It is further agreed by the Parties that: * * * * * * * If the employee is not represented by the Union, the Union shall have the right to have an observer present at the oral conference, subject to a contrary determination by an oral conference officer when the employee objects on the grounds of privacy. The Union observer shall be on official time and expenses for attendance at the meeting up to twelve (12) hours and $150. The Union shall be notified sufficiently in advance of the oral conference to permit attendance. (Provision 5) ARTICLE XXXII -- GRIEVANCE PROCEDURE Section E -- Role of the Union: The Union shall be recognized as the representative of the aggrieved employee(s) unless such employee(s) wishes to personally handle the grievance and so informs the official to whom the grievance is being presented. No employee representative other than the Union will be recognized under these procedures. If any employee presents a grievance on his/her own behalf, the Union shall have the right to have a representative present during the grievance proceeding on official time and expense. (Provision 6) ARTICLE XXXIII -- ARBITRATION Section B -- Arbitration Hearing: 1. The arbitration hearing will be held on Service premises or premises furnished by the Service during the regular day-shift hours of the basic workweek. The grievant(s), his/her Union representative and up to four (4) witnesses shall be allowed official time and expenses for the proceedings. All other witnesses deemed necessary by the arbitrator will be allowed official time for the proceedings. II. 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 (1983), 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 employement 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. III. Analysis A. The Provisions Relate to 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) 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). The Authority rejected that argument in Customs Service and we reject it here for the same reasons as set forth in that case. B. The Provisions Are Not 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, /2/ 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, 21 FLRA No. 2. 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. /3/ Additionally, nothing in the provisions themselves or the parties' arguments suggests that these provisions would foreclose case by case determinations as to the appropriateness of specific travel and expenses which are proper under law and governing regulations. Given these circumstances, and for the reasons expressed in Customs Service, we reject the Agency's assertion that the provisions are inconsistent with law and Government-wide regulations. C. The Provisions Do Not Conflict with an Agency Regulation for Which a Compelling Need Exists The Agency argues, without further explanation, that these provisions conflict with Personnel Letter 711-10 -- an agency regulation which meets the criteria for compelling need under section 2424.11(c) of the Authority's Rules and Regulations. The Agency has made a similar argument in various other negotiability appeals before us. We have consistently found that the Agency failed to establish a compelling need for that regulation. 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); American Federation of Government Employees, Council of Meat Grading Locals, AFL-CIO and Department of Agriculture, Agricultural Marketing Service, Meat Grading and Certification Branch, 22 FLRA No. 38 (1986), and National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, 22 FLRA No. 45 (1986). There is no basis here for concluding differently. IV. Conclusion Based on the foregoing analysis, the Authority finds that the provisions concern conditions 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. /4/ V. 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 6 which were bargained on and agreed to by the parties at the local level. Issued, Washington, D.C., August 6, 1986. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The petition originally included four additional provisions on other subjects. The Union has since withdrawn its petition as to those four provisions. (2) 46 Comp. Gen. 21 (1966). (3) Of course, if such a question should arise, the parties have access to their negotiated grievance procedure as a means of resolving the issue. (4) In finding that these provisions are within the duty to bargain, we make no judgment as to their merits.