24:0682(71)CA - Agriculture, Washington, DC and Agriculture, Farmers Home Administration, Little Rock, AR and NFFE Local 108 -- 1986 FLRAdec CA



[ v24 p682 ]
24:0682(71)CA
The decision of the Authority follows:


 24 FLRA No. 71
 
 UNITED STATES DEPARTMENT OF 
 AGRICULTURE, WASHINGTON, D.C.
 
 and
 
 UNITED STATES DEPARTMENT OF 
 AGRICULTURE, FARMERS HOME ADMINISTRATION
 LITTLE ROCK, ARKANSAS
 Respondents
 
 and
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 108
 Charging Party
 
                                            Case No. 6-CA-50489
 
                            DECISION AND ORDER
 
                         I.  STATEMENT OT THE CASE
 
    This unfair labor practice case is before the Authority based on the
 Regional Director's "Order Transferring Case to the Authority" in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations.  The Parties to the case are the Department of Agriculture,
 Washington, D.C. and the Department of Agriculture, Farmers Home
 Administration, jointly called Respondents and separately called
 Respondent Agency and Respondent Activity, respectively, and the
 National Federation of Federal Employees, Local 108, (the Union).  The
 complaint alleged that the Respondent Agency violated section 7116(a)(1)
 and (5) of the Federal Service Labor-Management Relations Statute (the
 Statute) by causing its subordinate element, the Respondent Activity, to
 breach provisions of the collective bargaining agreement negotiated at
 the level of exclusive recognition with the Union which provide for the
 payment of travel and per diem expenses.  The complaint further alleged,
 in the alternative, that the Respondent Activity violated section
 7116(a)(1) and (5) of the Statute by breaching provisions of the
 collective bargaining agreement negotiated with the Union which provide
 for the payment of travel and per diem expenses, thereby failing and
 refusing to bargain in good faith with the Union.
 
                              II.  Background
 
    Respondent Activity and the Union have been parties to a collective
 bargaining agreement, effective from June 22, 1983 to June 22, 1986.
 Article 11 of the agreement concerned the payment of travel and per diem
 expenses.  /1/
 
    By letter dated June 25, 1984, the Respondent Activity informed the
 Union of a new policy and procedure concerning the payment of travel and
 per diem expenses for employees representing labor organizations.
 Attached to the letter was a copy of USDA Personnel Letter 711-10 (May
 16, 1984) issued by the Respondent Agency and an excerpt from 46 Comp.
 Gen. 21 (1966).  The USDA Personnel Letter set forth procedures
 concerning the payment of travel and per diem expenses based on
 interpretations of the decision of the United States Supreme Court in
 Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations
 Authority, 464 U.S. 89 (1983) and Office of Personnel Management
 guidance.  USDA Personnel Letter 711-10 stated in pertinent part:
 
          (S)ince there is no entitlement for travel and per diem for
       negotiating an agreement, there can be no entitlement to travel
       and per diem expenses for representation purposes.  Therefore,
       payment of travel and per diem expenses to union representatives
       can be made only as a unilateral management decision if such
       payments meet the primary interest of the Government . . . .
 
                       * * * * *
 
 
          (1) All USDA labor agreements containing either general or
       specific authorization for payment of travel and per diem expenses
       to union negotiators or representatives are unenforceable in
       accordance with FPM Letter 711-162 and 46 Comptroller General 21
       (1966).  Management must determine, on a case by case basis,
       whether or not the payment of travel and per diem meets the
       justification requirements of the Comptroller General and is
       warranted.
 
    On November 26 and December 13, 1984, the Respondent Activity and the
 Union met to discuss and negotiate changes in employee office hours and
 lunch breaks.  The Respondent Activity refused to pay travel and per
 diem expenses to representatives of the Union for attending these
 negotiation sessions based on USDA Personnel Letter 711-10.  On December
 10, 1984, the Respondent Agency briefed the Union on management's
 decision to contract out certain of its functions and subsequently
 informed the Union that employees who attended the briefing would be
 paid travel and per diem expenses as that meeting was not covered by the
 constraints of USDA Personnel Letter 711-10/
 
                      III.  Positions of the Parties
 
    The Respondent argues that since the payment by an agency of travel
 and per diem expenses is governed by the Travel Expense Act and not the
 Statute, such payment does not concern "conditions of employment" within
 the meaning of section 7103 (a)(14).  The Respondent further argues that
 under Federal Law and Government-wide regulations, the payment of travel
 and per diem expenses can be made only as a unilateral decision by an
 agency.  The General Counsel argues that Respondent Activity's refusal
 to pay travel and per diem for negotiation sessions constituted a
 repudiation of provisions of the parties' agreement in violation of
 section 7116(a)(1) and (5) of the Statute.  The General Counsel argues
 in the alternative that the Respondent Agency caused the Respondent
 Activity to repudiate provisions of the parties' agreement in violation
 of the Statute.
 
                               IV.  Analysis
 
    We reject the Respondent's contention that the payment of travel and
 per diem expenses does not concern conditions of employment.  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) the Authority found that the Travel
 Expense Act, 5 U.S.C. Sections 5701, et seq., does not specifically
 address payment of travel expenses incurred by employees engaged in
 labor-management activity.  Therefore, the payment of travel and per
 diem expenses is not a matter which is excepted from the definition of
 conditions of employment under section 7103(a)(14).
 
    The Authority further found in Department of the Treasury, U.S.
 Customs Service, that agencies have discretion under the Travel Expense
 Act, 5 U.S.C. Sections 5701 et seq., and implementing regulations, to
 determine whether and under what circumstances travel related to
 labor-management relations activities is sufficiently within the
 interest of the United States so as to constitute official business for
 which employees may receive appropriate expenses from Federal funds.
 Consequently, based on controlling precedent the Authority held that the
 exercise of such discretion is subject to negotiations.  /2/ The
 Authority noted, however, that determinations as to the appropriateness
 of specific travel and per diem expenses which are necessary and proper
 under law and governing regulations would have to be made on a
 case-by-case basis.  See Department of the Treasury, U.S. Customs
 Service, 21 FLRA No. 2, slip op. at 6-7 (1986).
 
    In this case, the Respondent Activity and the Union had negotiated
 for the payment of travel and per diem expenses and had included those
 provisions in Article 11 of their collective bargaining agreement.  The
 Respondent has not shown that the provisions of Article 11 are
 inconsistent with law and regulation, so as to be outside the duty to
 bargain.  In Department of Defense Dependents Schools System, 21 FLRA
 No. 125 (1986), the Authority concluded that an agency's conduct in
 repudiating provisions of a negotiated agreement authorizing the payment
 of travel and per diem expenses violated section 7116(a)(1) and (5) of
 the Statute.  Similarly, in Adjutant General, State of Ohio, Ohio Air
 National Guard, Worthington, Ohio, 21 FLRA No. 124 (1986), the Authority
 found that the unilateral termination and repudiation of a memorandum of
 understanding which set forth ground rules for upcoming negotiations and
 provided for the payment of travel and per diem expenses of employees
 serving as the union's negotiations violated section 7116(a)(1) and (5)
 of the Statute.  On the same basis, we find here that the Respondent
 Activity's refusal to pay travel and per diem expenses to the Union's
 representatives on November 26 and December 3, 1984 constituted a
 repudiation of their collective bargaining agreement which was
 inconsistent with the Respondent Activity's good-faith bargaining
 obligation in violation of the Statute.  See Office of the General
 Counsel, National Labor Relations Board, 22 FLRA No. 25 (1986).
 Petition for review filed sub nom. National Labor Relations Board,
 Office of the General Counsel v. FLRA, No. 86-1468 (D.C. Cir. Aug. 22,
 1986).
 
    We further find that the Respondent Activity at the level of
 exclusive recognition was following the dictates of higher level Agency
 management when it refused to pay the representatives of the Union.  The
 Respondent Agency's Personnel Letter 711-10 concerning payment of travel
 and per diem expenses foreclosed such payments by subordinate levels
 because it contained the directive that all USDA labor agreements
 authorizing payment of travel and per diem expenses were unenforceable
 and that such payment can be made only as a unilateral management
 decision.  The Authority has held that when higher-level agency
 management prevents management at a subordinate level of exclusive
 recognition from complying with its obligations under the Statute, the
 higher-level management violates the Statute.  See Department of Health
 and Human Services, Social Security Administration, Region VI and
 Department of Health and Human Services, Social Security Administration,
 Galveston, Texas District, 10 FLRA 26 (1982).  The Authority has held
 further that where the subordinate entity is deprived of discretion to
 comply with its statutory obligations it will not also be found to have
 violated the Statute.  See Social Security Administration, Region VI.
 
    Consistent with this precedent we find here that Respondent Agency's
 directive to Respondent Activity not to comply with Article 11 of the
 collective bargaining agreement negotiated with the Union at the level
 of exclusive recognition constitutes a violation of section 7116(a)(1)
 and (5) by Respondent Agency.  Further, Respondent Agency's directive
 not to comply with the collective bargaining agreement afforded
 Respondent Activity no discretion to do otherwise.  Consequently, its
 non-compliance with the collective bargaining agreement was ministerial
 in nature.  We therefore find that Respondent Activity's action was not
 an independent violation of section 7116(a)(1) and (5).
 
    Respondent relies upon the Authority's decisions in Department of the
 Treasury, Internal Revenue Service, Washington, D.C. and its
 Indianapolis, Indiana and Dallas, Texas Districts 16 FLRA 176 (1984) and
 United States Air Force, Air Force Logistics Command, Wright-Patterson
 Air Force Base, Ohio, 15 FLRA 151 (1981), affirmed on other grounds sub
 nom. Department of the Air Force, et. al. v. FLRA, 775 F. 2d 727 (6th
 Cir. 1985) where the Authority found that the agencies' refusal to pay
 travel and per diem expenses to union representatives in connection with
 labor-management activities was not in violation of the Statute.  Those
 cases are materially distinguishable from the present case.  In Internal
 Revenue Service and Wright-Patterson Air Force Base, Ohio, the General
 Counsel did not allege nor did the records establish that the Respondent
 had repudiated a collective bargaining agreement which provided for the
 payment of travel and per diem expenses.  In the present case, the
 General Counsel alleged and established that the collective bargaining
 agreement was repudiated.  Thus the cases relied on by the Respondent in
 this connection are inapposite.
 
                              V.  Conclusion
 
    We conclude that the Respondent Agency interfered with the Respondent
 Activity's obligation to bargain in good faith in violation of section
 7116(a)(1) and (5).  We also conclude that the Respondent Activity did
 not violate the Statute as alleged in the complaint.  To remedy this
 unfair labor practice, we shall order the Respondent Agency to cease and
 desist from directing the Respondent Activity not to comply with the
 terms of Article 11 of the collective bargaining agreement, effective
 June 22, 1983, between the Respondent Activity and the Union and to
 direct Respondent Activity to pay travel and per diem expenses to the
 bargaining unit employees who incurred expenses at the negotiation
 sessions of November 16 and December 13, 1984 and submit or previously
 submitted appropriate claims of such payments under the terms of Article
 11 of the parties' collective bargaining agreement.  Of course, such
 payments must be consistent not only with the terms of the parties'
 collective bargaining agreement, but also with law and regulation,
 including the Federal Travel Regulations.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 ordered that the Department of Agriculture, Washington, D.C.:
 
    1.  Cease and desist from:
 
          (a) Directing the U.S. Department of Agriculture, Farmers Home
       Administration, Little Rock, Arkansas not to comply with the terms
       of Article 11 of the collective bargaining agreement, effective
       June 22, 1983, between the Farmers Home Administration, Little
       Rock, Arkansas and the National Federation of Federal Employees,
       Local 108, the exclusive representative of its employees at the
       Farmers Home Administration, Little Rock, Arkansas facility, which
       provides for the payment of travel and per diem expenses.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Direct the Farmers Home Administration, Little Rock,
       Arkansas to comply with the terms of Article 11 of the collective
       bargaining agreement, effective June 22, 1983, between the Farmers
       Home Administration, Little Rock, Arkansas and the National
       Federation of Federal Employees, Local 108, which provides for the
       payment of travel and per diem expenses to representatives of the
       National Federation of Federal Employees, Local 108 in connection
       with labor-management activities.
 
          (b) Direct the Farmers Home Administration, Little Rock,
       Arkansas to pay travel and per diem expenses to the bargaining
       unit employees who incurred expenses at the negotiation sessions
       of November 26 and December 13, 1984 and submit or previously
       submitted appropriate claims for such payments under the terms of
       Article 11 of the collective bargaining agreement which was
       effective June 22, 1983, to the extent that such payments are
       consistent with the terms of the collective bargaining agreement,
       law and regulation, including the Federal Travel Regulations.
 
          (c) Post at its Farmers Home Administration, Little Rock
       Arkansas facility where bargaining unit employees represented by
       the National Federation of Federal Employees, Local 108 are
       located, copies of the attached Notice on forms to be furnished by
       the Federal Labor Relations Authority.  Upon receipt of such
       forms, they shall be signed by the Director and shall be posted
       and maintained for 60 consecutive days thereafter, in conspicuous
       places, including all bulletin boards and other places where
       notices to employees are customarily posted.  Reasonable steps
       shall be taken to ensure that such Notices are not altered,
       defaced, or covered by any other material.
 
          (d) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region VI, Federal
       Labor Relations Authority, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply
       with it.
 
    IT IS FURTHER ORDERED that those portions of the complaint alleging a
 violation of the Statute by the Department of Argiculture, Farmers Home
 Administration, Little Rock, Arkansas, be, and they hereby are,
 dismissed.
 
    Issued, Washington, D.C. December 22, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) The pertinent provisions of Article 11 are set forth in the
 appendix to this decision.
 
    (2) See also 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)
 and National Treasury Employees Union and Department of the Treasury,
 Internal Revenue Service, 21 FLRA No. 19 (1986) petition for review
 filed sub nom. Department of the Treasury, Internal Revenue Service v.
 FLRA, No. 86-1290 (D.C.Cir. May 19, 1986), in which proposals
 authorizing payment of various travel and per diem expenses were found
 to be within the duty to bargain.
 
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE
 
                FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT direct the U.S. Department of Agriculture, Farmers Home
 Administration, Little Rock, Arkansas not to comply with the terms of
 Article 11 of the collective bargaining agreement, effective June 22,
 1983 between the Farmers Home Administration, Little Rock, Arkansas and
 the National Federation of Federal Employees, Local 108, the exclusive
 representative at the Farmers Home Administration, Little Rock, Arkansas
 facility, which provides for the payment of travel and per diem
 expenses.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL direct the Farmers Home Administration, Little Rock,
 Arkansas, to comply with the terms of Article 11 of the collective
 bargaining agreement, effective June 22, 1983, between the Farmers Home
 Administration, Little Rock, Arkansas and the National Federation of
 Federal Employees, Local 108, which provides for the payment of travel
 and per diem expenses to representatives of the National Federation of
 Federal Employees, Local 108 in connection with labor-management
 activities.
 
    WE WILL direct the Farmers Home Administration, Little Rock, Arkansas
 to pay travel and per diem expenses to the bargaining unit employees who
 incurred expenses at the negotiation sessions of November 26 and
 December 13, 1984 and who submit or have previously submitted
 appropriate claims for such payments under the terms of Article 11 of
 the collective bargaining agreement, effective June 22, 1983, to the
 extent that such payments are consistent with the terms of the
 collective bargaining agreement, law and regulation, including the
 Federal Travel Regulations.
                                       . . . (Acitvity)
 
    Dated:  . . . By. . . . (Signature) (title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region VI, whose address is:  Federal Office Building, 525
 Griffin Street, Suite 926, Dallas, Texas 75202 and whose telephone
 number is (214) 767-4996.
 
 
 
 
 
                                 APPENDIX
 
    11.1 LIMITATION:  Official time, travel expenses, and per diem
 granted by the Employer in this agreement will be given only to Union
 officials, stewards and union contract negotiators who are employees of
 the Employer.  Solicitation of membership, the collection of dues, or
 other internal business of the Union shall be conducted during the
 non-duty hours of the employees concerned.
 
                * * *
 
 
    11.5 INFORMATION, BRIEFING OR ORIENTATION:  The Employer agrees that
 Union representatives who are FHA employees shall be granted official
 time, ordinarily not to exceed sixteen (16) hours per person annually,
 up to 160 hours each year to receive information, briefing, or
 orientation relating to matters of mutual benefit to the Employer and
 the employee in the employee's capacity as labor organization
 representative.  Prior approval of the program to be attended must be
 given by the Employer.
 
    11.6 CONFERRING WITH MANAGEMENT:  Union officers will be allowed a
 reasonable amount of official time to meet and confer with management
 officials.
 
                * * *
 
 
    11.8 AUTHORIZED OFFICIAL TIME:  Union officers and officials,
 including stewards, shall be permitted reasonable time during working
 hours without loss of leave or pay to represent employees in accordance
 with this agreement.  Use of official time will not be limited to the
 confines of the office of the employee but will allow the representative
 to travel in accordance with the needs of the individual case.  Any
 travel and per diem incurred by a representative in such cases will be
 reimbursed by the Employer, in accordance with applicable travel
 regulations.  The Union and the Employer will endeavor jointly to keep
 mileage and per diem expenses to a minimum.
 
          (a) All negotiations and preparations therefore shall be
       conducted on official duty time.  This shall include time to
       prepare and present matters to the Federal Mediation and
       Conciliation Service and the Federal Service Impasses Panel.
 
          (b) Reasonable time for receiving, investigating, preparing and
       presenting a complaint, grievance or appeal must necessarily
       depend on the facts and circumstances of each case -- e.g., number
       and nature of allegations, number and complexity of supporting
       specifics, the v