24:0430(45)NG - NFFE and GSA -- 1986 FLRAdec NG
[ v24 p430 ]
The decision of the Authority follows:
24 FLRA No. 45 NATIONAL FEDERATION OF FEDERAL EMPLOYEES Union and GENERAL SERVICES ADMINISTRATION Agency Case No. 0-NG-1109 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority on a petition for review of negotiability issues filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute and part 2424 of the Authority's Rules and Regulations. It raises issues concerning the negotiability of two Union proposals. /1/ We find both proposals to be negotiable. II. Proposal 1 Each office to be occupied by one of the Union's National Council officers will be provided with normal office furniture and a telephone. (Only the underlined portions are in dispute.) Proposal 2 Council officers and local Union officials may use FTS for necessary communications in handling issues that arise between the Union and Management. The use of facility telephone services is also available for communications. III. Positions of the Parties The Agency states that its objection is not based on use of the telephones by the Union for internal union business within the proscription of section 7131(b) of the Statute. According to the Agency, the parties are in agreement that the telephones are not to be used for internal union business. Rather, the Agency's position is that the proposals are nonnegotiable because both the installation by the Agency of telephones in union offices and the use by the Union of those telephones and existing government telephones for local or long-distance telephone calls are contrary to law and government-wide regulation. Specifically, the Agency argues that such proposals are contrary to 31 U.S.C. Section 1348(b) and 41 CFR Section 201-38.007 which both restrict use of a government telephone to "official business" or "official Government business." The Agency maintains that a labor organization and labor-management relations activities are no different than any other private organization and its activities. The Agency further argues that because of this restriction of installation and use of the government telephone, the proposals also are contrary to 31 U.S.C. Section 1301, which provides that appropriations shall be applied only for appropriate purposes. The Union disputes these Agency contentions. IV. Analysis and Conclusions The Agency's position on both proposals is essentially the same: use of a government telephone for the purpose of conducting labor-management relations activities is not for the purpose of official Government business and hence is contrary to law and government-wide regulation. 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. Mar. 27, 1986), we found that a proposal providing for agency payment of travel expenses attendant to labor-management relations activities was within the duty to bargain under the Statute. We rejected the agency's contention that the proposal was inconsistent with the Travel Expense Act which, in sum, provides that Federal employees traveling on official business are entitled to appropriate expenses and allowances. 5 U.S.C. Section 5701 et seq. We noted that neither the Act nor travel regulations specifically define the term "official business," but that the term had been construed to require a determination that the activity was sufficiently within the interest of the United States. Concluding that such determinations are within the discretionary administrative authority of an agency, we consequently held that the agency was obligated under the Statute to exercise that discretion through negotiation unless precluded by regulatory or statutory provisions. Applying these principles in this case, we find that both proposals are negotiable. Initially, we must reject the Agency's assertion that a labor organization operation as an exclusive representative of employees in an appropriate unit and performing labor-management relations activities under the Statute is no different than any other private organization and its activities. As expressly set forth in section 7101 of the Statute and as specifically acknowledged by the Authority, labor organizations and collective bargaining are in the public interest. See Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9, 11 (1981). More specifically, Congress found that statutory protection of the right of employees to bargain collectively through labor organizations safeguards the public interest, contributes to the effective conduct of public business, and facilitates and encourages amicable settlement of disputes. Thus, the Agency's reliance on decisions prohibiting provision of telephone service to private organizations is misplaced. The issue is whether the proposals are outside the duty of the Agency to bargain under the Statute. As in U.S. Customs Service, the statutory and regulatory provisions cited by the Agency do not specifically define the terms "official business" or "official Government business" for which purpose the use of any government telephone is restricted. The terms have been construed as requiring a determination that the purpose of the use of the government telephone is in the interest of the United States. Matter of: Gerald S. Mathews, Comptroller General Decision No. B-220104, Aug. 4, 1986. Consequently, as in U.S. Customs Service, we find in this case that the proposals are not inconsistent with law or government-wide regulation, as alleged, specifically 31 U.S.C. Sections 1301, 1348(b) and 41 CFR Section 201-38.007. /2/ The Agency fails to cite any statutory or regulatory provision which would prohibit it from exercising through negotiations its discretion to determine that telephone installation and service for union offices relating to labor-management relations activities is sufficiently within the interest of the United States so as to constitute official business. Likewise, the proposals do not require telephone installation or service which does not comport with cited statutory and regulatory requirements and restrictions. In addition, we note that finding these proposals to be negotiable is consistent with other Authority decisions addressing proposals or provisions for telephone use by union officials in conducting labor-management relations activities under the Statute. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980) (Proposal II), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982); American Federation of Government Employees, AFL-CIO, Local 3748 and Department of Agriculture, Science and Education Administration, Personnel Division, Hyattsville, Maryland, 11 FLRA 122 (1983); Department of the Air Force, Flight Test Center, Edwards Air Force Base, California and Interdepartmental Local 3854, American Federation of Government Employees, AFL-CIO, 21 FLRA No. 61 (1986). See also National Treasury Employees Union and Internal Revenue Service, Denver District, 24 FLRA No. 30 (1986). Of course, telephone use by union officials in conducting labor-management relations activities under the Statute must be distinguished from telephone use by employees in performance of the official duties of their positions which use implicates management rights under section 7106(b)(1) of the Statute. American Federation of Government Employees, AFL-CIO, Local 3760 and Social Security Administration, Disability Analysis Branch, Field Assessment Office, 11 FLRA 576 (1983); American Federation of Government Employees, Local 644, AFL-CIO and U.S. Department of Labor, Mine Health and Safety Administration, Morgantown, West Virginia, 15 FLRA 902 (1984) (proposal 3). Accordingly, proposals 1 and 2 are within the duty to bargain under the Statute. V. Order The Agency must upon request (or as otherwise agreed to by the parties) bargain concerning proposals 1 and 2. /3/ Issued, Washington, D.C., December 12, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Union's motion for a hearing pursuant to 5 CFR Section 2424.9 is denied because there is sufficient evidence in the record upon which to base a reasoned decision. (2) Because 41 CFR Section 201-38.007 is generally applicable throughout the Federal Government, we find that it is a government-wide regulation within the meaning of section 7117 of the Statute. See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980). (3) In deciding that proposals 1 and 2 are within the Agency's duty to bargain, we make no judgment as to their merits.