24:0430(45)NG - NFFE and GSA -- 1986 FLRAdec NG



[ v24 p430 ]
24:0430(45)NG
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