24:0121(16)NG - NAAE and Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine Program -- 1986 FLRAdec NG



[ v24 p121 ]
24:0121(16)NG
The decision of the Authority follows:


 24 FLRA No. 16
 
 NATIONAL ASSOCIATION OF 
 AGRICULTURE EMPLOYEES
 Union
 
 and
 
 U.S. DEPARTMENT OF AGRICULTURE, 
 ANIMAL AND PLANT HEALTH INSPECTION
 SERVICE, PLANT PROTECTION AND 
 QUARANTINE PROGRAM
 Agency
 
                                            Case No. 0-NG-1280
 
                 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
 negotiability of the following provision of a locally negotiated
 supplemental agreement disapproved by the Agency head as provided in
 section 7114(c)(4) of the Statute:
 
       Travel and per diem for negotiations and other activities directly
       related to negotiations shall be negotiated.
 
    We find the provision to be negotiable.
 
                       II.  Positions of the Parties
 
    The Agency contends that payment of travel and per diem expenses is
 specifically provided for by law and the provision is therefore
 nonnegotiable because it does not concern a condition of employment of
 bargaining unit employees within the meaning of section 7103(a)(14)(C)
 of the Statute.  The Agency also argues that the decision of the Supreme
 Court in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
 (1983) (BATF) requires a conclusion that travel and per diem payments
 for employees engaged in union representational activities is not within
 the duty to bargain.  The Agency contends, therefore, that the
 Authority's decisions 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) and
 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. U.S. Department of Agriculture, Federal Grain
 Inspection Service v. FLRA, No. 86-1295 (D.C. Cir. May 21, 1986), are
 incorrect.  The Agency maintains that for authorization of payment for
 travel and per diem expenses to be consistent with law and regulation it
 "can only be made as a unilateral decision of management, based on a
 case-by-case review of the circumstances of each proposed travel
 situation," and not through negotiation.  Agency Statement of Position
 at 6.  Finally, the Agency argues that the provision is inconsistent
 with section 7101(b) of the Statute because whatever action it takes
 would involve it in "lengthy and costly litigation," which is contrary
 to the accomplishment of an effective and efficient government.  Agency
 Statement of Position at 8.
 
    The Union states that the provision does not require payment of
 travel and per diem expenses but only a commitment by the Agency to
 negotiate about such payment when the issue arises.  The provision is
 negotiable under the Authority's decisions in Customs Service and
 Federal Grain Inspection Service, the Union argues, because in those
 decisions the Authority rejected each of the arguments made by the
 Agency in this case.  The Union contends that the Agency's one new
 argument, that the provision would result in costly litigation contrary
 to section 7101(b) is a "patent fallacy" because it would mean that any
 negotiability dispute would be contrary to the Statute.  Union Response
 to Agency Statement of Position at 5.
 
                       III.  Analysis and Conclusion
 
           A.  The Provision Concerns a Condition of Employment
 
    In Customs Service, 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
 of bargaining unit employees.  For the reasons expressed in that
 decision, the Authority finds that the provision concerns a condition of
 employment of bargaining unit employees.
 
        B.  The Provision Is Not Inconsistent With Federal Law and
 
                Government-wide Rules and Regulations
 
    In BATF the Supreme Court held that payment of travel and per diem
 expenses for employees engaged in union representational activities was
 not required by the Statute.  The Supreme Court did not hold that
 agencies and unions were precluded by law from negotiating over the
 payment of such expenses, only that payment was not required by law.
 
    In Customs Service we rejected the same argument which the Agency
 makes here, namely, that payment of travel and per diem expenses for
 union representatives is inconsistent with law and regulation and
 therefore nonnegotiable.  We found that 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, 46 Comp.
 Gen. 21 (1966), agencies have discretion to make determinations that
 travel in the context of union activity is sufficiently within the
 interest of the Government to constitute official business.  Following
 this determination, otherwise proper travel and p