26:0589(72)NG - NTEU and Treasury, Bureau of the Public Debt -- 1987 FLRAdec NG



[ v26 p589 ]
26:0589(72)NG
The decision of the Authority follows:


 26 FLRA No. 72
 
 NATIONAL TREASURY EMPLOYEES UNION
 Union

 and 
 
 DEPARTMENT OF THE TREASURY
 BUREAU OF THE PUBLIC DEBT
 Agency
 
                                            Case No. 0-NG-1348
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed by the Union under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of the following proposal:
 
          The employer agrees to pay the travel and per diem expenses
       incurred by employee members of the Union Negotiating Committee
       while using official time available under the terms of this
       agreement.
 
    We find the proposal to be negotiable.
 
                       II.  Positions of the Parties
 
    The Agency contends that the proposal does not concern a condition of
 employment because it is inconsistent with the Travel Expense Act, 5
 U.S.C. section 5701 et seq., the Supreme Court's decision in Bureau of
 Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983), and
 decisions of the Comptroller General.  The Agency also contends that the
 proposal does not concern conditions of employment because it is not
 related to the working conditions of unit employees.  Finally, the
 Agency argues that the proposal is inconsistent with Government-wide
 rules or regulations.
 
    The Union contends that the proposal is an attempt to negotiate for
 the payment of travel and per diem expenses of employee union
 representatives by establishing criteria for determining that travel
 related to labor relations activity is sufficiently within the interest
 of the Government so as to constitute official business.
 
                       III.  Analysis and Conclusion
 
            A.  The Proposal Concerns a Condition 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. March 27, 1986), 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.
 
         B.  The Proposal Is Not Inconsistent With Federal Law and
 
                Government-wide Rules and Regulations
 
    In Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
 (1983) (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.
 
    In Customs Service the Authority 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 non-negotiable.  The Authority found that under the Travel
 Expense Act, 5 U.S.C. section 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 per diem expenses may be paid from agency funds.  Nothing in
 these authorities requires that this necessary determination be made
 unilaterally by management and only on a case-by-case basis.  An agency
 may determine, generally, that travel in the context of labor relations
 activities is sufficiently within the interest of government to
 constitute official business.  Further, we reject the Agency's argument
 that it lacks discretion which is sufficient to place the matter within
 its duty to bargain.  We find that the "certification process,"
 described by the Agency as the act of declaring a particular
 circumstance to be in the primary interest of the United States, is an
 exercise of its discretion and is subject to the duty to bargain.
 
    Moreover, the Authority has consistently held that in the absence of
 a demonstration to the contrary, proposals providing for the payment of
 travel and per diem expenses for union representatives would not prevent
 management from making individual case-by-case determinations as to the
 propriety under the FTRs of authorizing particular payments.  See, for
 example, National Labor Relations Board Union and National Labor
 Relations Board, 22 FLRA No. 55 (1986), petition for review filed sub
 nom. National Labor Relations Board v. FLRA, No. 86-1504 (D.C. Cir.
 Sept. 8, 1986).  There is nothing in the proposal in this case which
 prevents the Agency from complying with the requirements of law and
 regulation.  The proposal was not intended to, and could not, require
 the Agency to use specific authorization procedures and practices
 relating to actual travel which conflict with the FTRs.  It would not
 foreclose individual determinations regarding the propriety under the
 FTRs of authorizing particular travel and expenses.  To th