23:0160(20)NG - AFGE Local 3748 and Agriculture, Agricultural Research Service, Northern State Area -- 1986 FLRAdec NG

[ v23 p160 ]
The decision of the Authority follows:

 23 FLRA No. 20
                                            Case No. O-NG-1101
                         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
 negotiability of three Union proposals.
                              II.  Background
    Two fo the three Union proposals concern Cooperative Agreements which
 are devices used by the Agency to accomplish certain projects.
 According to the Agency, a Cooperative Agreement may be one of several
 types of agreements providing for mutual undertaking and contribution
 between a Federal agency and a cooperator to perform research,
 extension, information or education service or work.  In this case,
 cooperators are State Land-Grant colleges and universities or State
 Agricultural Experiment Stations.
    There are three types of such Cooperative agreements commonly used by
 the Agency:
    A Broadform Cooperative Agreement is an agreement between the
 Agricultural Research Service (ARS) and other parties covering a broad
 area of cooperative research, extension, information or education work
 where specific details are planned jointly as the project proceeds.
 Such an agreement may cover a broad area and deal with numerous
 individual research problems.  Federal and State resources may be
 brought to bear on a problem by mixing funds, personnel, equipment, lab
 space, soil plots and computer use.
    A General Cooperative Agreement is also an agreement between the ARS
 and other parties.  It describes in detail a particular research,
 extension, information or education program usually of long duration and
 funded on a fiscal year basis.
    A Specifc Cooperative Agreement is similarly an agreement between ARS
 and other parties, describing in detail a specific research, extension,
 information or education project.  The duration may be short or could
 extend up to five years.
    Broadform agreements are a means of providing nonprofessional
 personnel to support research programs.  The other two types of
 agreements make available professional as well as nonprofessional
    Subsequent to the statements of positions by the parties summarized
 below, the Agency distributed a memorandum to all employees of the
 Agricultural Research Service dated September 1985, and notified the
 Union by letter dated November 15, 1985, announcing discontinuance of
 use of Broadform Cooperative Agreements by October 1986.  In the letter
 to the Union, the Agency stated that it had already discontinued the use
 of General Cooperative Agreements.  As these two types of agreements
 would no longer be used, the Agency stated that the issues giving rise
 to the Union's concerns no longer applied and asked the Union to
 withdraw its petition with respect to the two proposals involving
 Cooperative Agreements.  By letter of December 17, 1985, the Union
 declined to withdraw the petition as "not in the best interest of the
    There is no basis for a finding that the Agency's announced intention
 to discontinue some or all of the Cooperative Agreements has rendered
 Union Proposals 1 and 2 moot.  In any event, the continued existence of
 such agreements is not itself a prerequisite to finding negotiable
 proposals like the ones involved here which require that, to the extent
 Cooperative Agreements exist, they will be administered in accordance
 with applicable laws and regulations and the identity of Cooperative
 Agreement employees will be furnished to the Union.  Accordingly, we
 proceed to consider the parties' contentions concerning the
 negotiability of those proposals.
                       III.  Union Proposals 1 and 2
          Proposal 1:
          Section 4 Upon request, location management will provide the
       union President with an updated list of Cooperative Agreement
          Proposal 2:
          Section 6 Area and location management agree to comply with OMB
       Circular No. A-76 and all other applicable laws and regulations on
       contracting out and cooperative agreements.  (Only the underlined
       portion of this proposal is in dispute).
                       A.  Positions of the Parties
    The Agency contends that Proposal 1 is nonnegotiable because "it does
 not have custody over the requested information and it does not maintain
 lists of cooperative agreement employees in the regular course of
 business.  Further, it is the Agency's position that the information
 cannot be considered 'agency records' subject to disclosure under the
 Freedom of Information Act." Agency Statement at 6.  Finally, the Agency
 contends that the Proposal 1 does not concern a condition of employment
 of unit employees and that it thus has no bargaining obligation under
 the Statute.
    The Union's position is that Proposal 1 concerns conditions of
 employment of unit employees, and that the Agency's arguments regarding
 its records and the Freedom of Information Act (FOIA) are irrelevant.
    The Agency's position as to Union Proposal 2 is that, like Proposal
 1, it is nonnegotiable because it does not concern conditions of
 employment of unit employees.  In addition, the Agency asserts the
 proposal is inconsistent with Government-wide rules and regulations.
 The Union takes issue with both arguments.
                       B.  Analysis and Conclusions
                           1.  Union Proposal 1
    Whether Union Proposal 1 is negotiable depends, first, on whether a
 proposal for management to give the Union a list of Cooperative
 Agreement employees concerns conditions of employment of unit employees.
    Although Cooperative Agreement employees are not members of the
 bargaining unit, we agree with the Union that knowledge of when, where
 and how these employees work in relation to unit employees is directly
 related to conditions of employment of unit employees.  Specifically,
 and without contravention by the Agency, the Union points out that it is
 common to fill unit vacancies with Cooperative Agreement employees,
 thereby reducing the size of the unit, which in turn reduces promotion
 or reassignment opportunities for unit employees.  Further, Cooperative
 Agreement employees "work side-by-side with and are often trained by
 unit employees." Union Reply Brief at 3.  Because Cooperative Agreement
 employees and unit employees are jointly enegaged in furtherance of a
 common agency objective -- the accomplishment of a cooperative project
 -- the information sought by the Union is necessary so that unit
 employees can be properly evaluated on training assignments and on their
 overall performance of the cooperative project.  As the Authority
 concludes that Union Proposal 1 does affect working conditions of unit
 employees, it is necessary to review the other bases for the Agency's
 assertion that the proposal is nonnegotiable.
    As to the Agency's arguments that it does not maintain the data
 sought and that such information cannot be considered Agency records
 subject to disclosure under the FOIA, the Agency does not contend, nor
 does anything in the record establish, that local management could not
 provide such information.  Further, the Agency does not assert, nor does
 it otherwise appear, that providing this information would be
 inconsistent with law or Government-wide regulation.  We therefore
 reject these Agency arguments as bases for finding the proposal
    In view of the foregoing, the Authority finds that the proposal that
 "upon request, location management will provide the Union President with
 a list of Cooperative Agreement employees" is negotiable.
                           2.  Union Proposal 2
    For the reasons set out above in the discussion of Proposal 1, the
 Authority finds that Proposal 2 concerns conditions of employment of
 unit employees.  The Agency also asserts that the proposal is
 nonnegotiable because it is inconsistent with Government-wide rules and
 regulations.  Essentially, it argues that an agreement to "comply with
 OMB Circular No. A-76 and all other applicable laws and regulations on
 contracting out and Cooperative agreements" is nonnegotiable as to the
 underlined phrase because Circular No. A-76 does not regulate the use of
 cooperative agreements.  The Union states that since the reference to
 OMB Circular No. A-76 is clearly followed by "and all applicable laws
 and regulations," it "does not intend, and the proposal does not
 require, OMB A-76 to be applied to the administration of cooperative
 agreements." Union Response at 4.  Rather, it states that the proposal
 was inclusive because of the Union's "legitimate interest in (assuring)
 the employer's compliance with applicable procedures when it exercise(s)
 either the right to contract out or to enter a cooperative agreement."
 Id. at 4-5.
    If this proposal were revised to more precisely implement the Union's
 stated intent of requiring decisions to contract out or to enter into
 cooperative agreements merely to comply with applicable laws and
 regulations, it would be negotiable.  See American Federation of
 Government Employees, AFL-CIO, National Council of EEOC Locals and Equal
 Employment Opportunity Commission, 10 FLRA 3 (1982) (Proposal 1),
 enforced sub nom. EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert.
 dismissed, 54 U.S.L.W. 4408 (U.S. April 29, 1986) (per curiam).
 However, the Union's stated intent is inconsistent with the plain
 language of the proposal which expressly requires OMB Circular A-76 to
 be applied to cooperative agreements.
    Consequently, although we find that Union Proposal 2 concerns
 conditions of employment of unit employees, we conclude that to the
 extent the proposal requires OMB Circular No. A-76 to be applied to
 Cooperative Agreements, it is inconsistent with that Government-wide
 regulation and therefore outside the duty to bargain under section
 7117(a)(1) of the Statute.
                           IV.  Union Proposal 3
          Section 17 Any union representative required to represent an
       employee at a location other than his own will be given official
       time, travel and per diem.  (Only the underlined portion of this
       proposal is in dispute).
                       A.  Positions of the Parties
    The Agency contends that the proposal is nonnegotiable because (1)
 there is no entitlement to travel and per diem expenses for Union
 representatives either by law or collective bargaining and (2) it is
 inconsistent with a published Agency regulation for which there is a
 compelling need.
    The Union disputes in detail the Agency's argument regarding the
 legality of negotiated provisions for travel and per diem expenses for
 Union representatives, and argues that the Agency has not established a
 compelling need for its published regulation under the rules and
 regulations of the Authority.
                       B.  Analysis and Conclusions
    Since the parties filed their statements of position in this case,
 the Authority has found a proposal which would require payment by an
 agency of the travel expenses of Union representatives using official
 time to be within the duty to bargain.  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).
    In Customs Service, the Authority found that agencies have
 discretion, under the Travel Expense Act and implementing regulations,
 to determine whether and under what circumstances travel related to
 labor-management relations activities is sufficiently within the primary
 interest of the United States so as to constitute official business for
 which employees may receive appropriate expenses from Federal funds.
 The exercise of that discretion was held to be subject to the
 negotiation process.  The Agency here makes no specific argument that
 this proposal concerning the circumstances under which otherwise
 appropriate travel expenses would be payable does not meet the statutory
 and regulatory standards discussed in Customs Service.  Moreover, the
 proposal does not preclude case-by-case determinations as to the
 appropriateness of specific travel and expenses which are necessary and
 proper under law and governing regulation.  See also American Federation
 of Government Employees, AFL-CIO, National EPA Council and Environmental
 Protection Agency, 21 FLRA No. 80 (1980) (Union Proposal 1).  For the
 reasons stated in those cases, the Authority concludes that Union
 Proposal 3 is negotiable, unless it conflicts with an Agency regulation
 for which there is a compelling need.
    The Agency issued Personnel Letter No. 711-10 on May 16, 1984, "to
 establish procedures for agencies as a result of the . . . decision of
 the Supreme Court" in Bureau of Alcohol, Tobacco, and Firearms v.
 Federal Labor Relations Authority, 464 U.S. 89 (1983) (BATF), and OPM
 guidance contained in FPM Letter 711-162.  The Personnel Letter stated
 as background that travel and per diem payments to Union negotiators are
 nonnegotiable and that such payments could only be made unilaterally by
 the Agency.  The letter also set out various procedures regarding
 payment of travel and per diem as determined by the Agency.  In its
 statement of position, the Agency asserts that a compelling need exists
 for this regulation because it implements a "mandate" to the Agency
 flowing from the Supreme Court's decision in BATF, cited above.  The
 "mandate," according to the Agency, is that agencies comply with the
 requirements of a decision of the Comptroller General, 46 Comp. Gen. 21
 (1966), cited in BATF.  However, in view of the Authority's decisions
 subsequent to BATF finding that certain aspects of travel and per diem
 are negotiable, BATF does not preclude negotiating over travel and per
 diem expenses, nor would it constitute a "mandate" to sustain a
 compelling need for the Agency's regulation under section 2424.11(c) of
 the Authority's Rules and Regulations.  See National Federation of
 Federal Employees and U.S. Department of the Interior, U.S. Geological
 Survey, Eastern Mapping Agency, 21 FLRA No. 127 (1986) (Provision 3).
 Therefore, Union Proposal 3 is found to be negotiable.
                                 V.  Order
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review, as it relates
 to Proposal 2, found to be nonnegotiable, be, and it hereby is,
 dismissed.  IT IS FURTHER ORDERED that the Agency shall upon request (or
 as otherwise agreed to by the parties) bargain on Union Proposals 1 and
 3.  *
    Issued, Washington, D.C., August 15, 1986.
                                       /s/ J. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTE$ ---------------
    (*) In finding these proposals to be within the duty to bargain, the
 Authority makes no judgment as to their merits.