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29 FLRA No. 67

U.S. DEPARTMENT OF AGRICULTURE AND
U.S. DEPARTMENT OF AGRICULTURE
AGRICULTURAL MARKETING SERVICE
LIVESTOCK DIVISION, MEAT GRADING
AND CERTIFICATION BRANCH
WASHINGTON, D.C.

                        Respondents

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL MEAT
GRADERS COUNCIL

                        Charging Party

Case No. 3-CA-70226

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of our Rules and Regulations, based on a stipulation entered into by the parties. The issues presented in this case are: (1) whether the Respondent U.S. Department of Agriculture, Agricultural Marketing Service, Livestock Division, Meat Grading and Certification Branch, Washington, D.C. (the Activity) violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by refusing to negotiate with the Charging Party (the Union) concerning the payment of travel and per diem expenses to Union representatives; and (2) whether the Respondent U.S. Department of Agriculture (the Agency) violated section 7116(a)(1) and (5) of the Statute by directing the Activity not to negotiate concerning the Union's proposal.

We find that: (1) because the Activity's action was taken pursuant to directions from the Agency, the Activity did not violate section 7116(a)(1) and (5) of the Statute when it declared the Union's proposal to be nonnegotiable; [PAGE] and (2) the Agency violated section 7116(a)(1) and (5) of the Statute by directing the Activity to refuse to negotiate with the Union concerning the Union's proposal.

II. Background

The Union is the exclusive representative of a nationwide unit of all permanent, full-time meat graders (GS-5, 7 and 9), Meat Grading and Certification Branch, Livestock Division, Agriculture Marketing service, U.S. Department of Agriculture. By letter dated May 12, 1986, the Agency directed the Activity to follow certain procedures contained in the Agency's Department Personnel Manual (DPM) Letter No. 711-10. Those procedures prohibited management negotiators from negotiating any agreement with any union which would authorize the payment of travel and per diem expenses to union representatives. See Joint Exhibit No. 11. In November 1986, during the course of ground rules negotiations with the Activity for a new collective bargaining agreement, the Union submitted a proposal which provided that the Activity would pay travel and per diem expenses incurred by the Union's unit employee negotiating team during negotiations for a new agreement. By letter dated December 5, 1986, the Activity declared the Union's proposal to be nonnegotiable.

III. Positions of the Parties

The Agency first contends that the Activity did not violate section 7116(a)(1) and (5) because the Activity was specifically barred by the Agency's written policy from negotiating over proposals concerning the payment of travel and per diem expenses to union representatives. Further, acknowledging Authority precedent to the contrary, the Agency argues that proposals providing for the payment of travel and per diem expenses to union representatives are nonnegotiable because they are inconsistent with the Travel Expense Act, regulations of the General Services Administration, and decisions of the Comptroller General. Thus, according to the Agency, the Union's proposal is inconsistent with applicable law, rule, and regulation. Therefore, the Agency asserts that it did not violate section 7116(a)(1) and (5) by directing the Activity not to negotiate concerning the Union's proposal because the Activity had no underlying duty to bargain on proposals concerning the payment of travel and per diem expenses to union representatives. [ v29 p2 ]

The General Counsel first contends that the Agency and the Activity violated section 7116(a)(1) and (5) of the Statute by declaring the Union's proposal to be nonnegotiable. In particular, the General Counsel argues that the facts do not show that the Activity acted at the direction of the Agency in declaring the proposal nonnegotiable. In the alternative, the General Counsel contends that if the Activity is found to have acted pursuant to the Agency's direction, the Agency should be found to have violated section 7116(a)(1) and (5) of the Statute.

IV. Discussion

As the Agency acknowledges, the proposal which it directed the Activity to declare nonnegotiable is without material difference from the proposal the Authority found negotiable in National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine Program, 24 FLRA No. 16 (1986), petition for review filed sub nom. Department of Agriculture, Animal and Plant Health Inspection Service v. FLRA, No. 87-1009 (D.C. Cir. Jan. 12, 1987). If an agency refuses to bargain over a proposal which is without material difference from a proposal which the Authority has previously determined to be negotiable, that refusal constitutes a violation of section 7116(a)(1) and (5) of the Statute. Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981), aff'd sub nom. Department of the Air Force, United States Air Force Academy v. FLRA, 717 F.2d 1314 (10th Cir. 1983). Accordingly, we find that the Agency violated section 7116(a)(1) and (5) of the Statute by directing the Activity to refuse to bargain on the Union's proposal.

The Agency also contends that the proposal in this case is like the proposal in National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, 22 FLRA No. 45 (1986) (Proposal 2), and requires "that all travel vouchers submitted by union representatives in connection with basic agreement negotiations must be approved and paid." Agency's Brief at 17 (emphasis in original). This contention cannot be sustained. The proposal in Animal and Plant Health Inspection Service was described by the union as providing for an "automatic right" on the part of union negotiators to the payment of travel and per diem expenses. In that case, the Authority found that by requiring the "automatic" payment [ v29 p3 ] of travel and per diem, the proposal was inconsistent with law and regulation because it did not permit a determination as to whether those expenses were incurred in the primary interest of the Government.

Nothing in the record of this case supports the Agency's contention that the Union intends its proposal to require the Agency to pay travel and per diem expenses of union representatives in a manner that is inconsistent with law and applicable regulation. Unlike the union in Animal and Plant Health Inspection Service, the Union in this case does not claim that its proposal requires the "automatic" payment of travel and per diem. The proposal in this case would not prevent the Agency from determining whether those expenses were incurred in the primary interest of the Government. Therefore, Animal and Plant Health Inspection Service is not controlling in this case.

With respect to the Activity, the Authority has, as the Agency correctly points out, previously addressed the issue of whether a subordinate activity should be found to have violated the Statute when it is directed to comply, and does comply, with orders or directions of higher level management. In U.S. Department of the Treasury and National Treasury Employees Union, 27 FLRA No. 102 (1987), petition for review as to other matters filed sub nom. United States Department of the Treasury v. FLRA No. 87-1447 (D.C. Cir. Aug. 28, 1987), the Authority found that no violation of section 7116(a)(1) and (5) was present where a subordinate activity did not initiate a change in an established condition of employment but merely complied with a directive from agency management at a higher level because it had no choice except to do so. We conclude, based on the above precedent, that the Activity did not violate the Statute by performing the ministerial act of declaring nonnegotiable the Union's proposal concerning the payment of travel and per diem expenses of Union representatives engaged in new contract negotiations as it was directed to do by the Agency in the memorandum of May 12, 1986.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the U.S. Department of Agriculture shall: [ v29 p4 ]

1. Cease and desist from:

(a) Directing the u.S. Department of Agriculture, Agricultural Marketing Service, Livestock Division, Meat Grading and Certification Branch, Washington, D.C. to declare nonnegotiable proposals made in the course of negotiations for a new collective bargaining agreement by the American Federation of Government Employees, AFL - CIO, National Meat Graders Council which are not materially different from proposals previously determined to be negotiable by the Federal Labor Relations Authority.

(b) In any like or related manner interfering with, restraining, or coercing 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 carry out the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Upon request of the American Federation of Government Employees, AFL - CIO, National Meat Graders council, direct the U.S. Department of Agriculture, Agricultural Marketing Service, Livestock Division, Meat Grading and Certification Branch, Washington, D.C. to negotiate concerning the Union's proposal providing for the payment of travel and per diem expenses of employee negotiators involved in new contract negotiations.

(b) Post at the facilities of the U.S. Department of Agriculture, Agricultural Marketing Service, Livestock Division, Meat Grading and Certification Branch, Washington, D.C., 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 of Personnel, U.S. Department of Agriculture, 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.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. [ v29 p5 ]

Further, that part of the complaint which alleges a violation of section 7116(a)(1) and (5) of the Statute by the U.S. Department of Agriculture, Agricultural Marketing Service, Livestock Division, Meat Grading and Certification Branch, Washington, D.C. is dismissed.

Issued, Washington, D.C., October 15, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p6 ]

                  NOTICE TO ALL EMPLOYEES
    AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
           AND TO EFFECTUATE THE POLICIES OF THE
     FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
               WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT declare nonnegotiable any proposals made in the course of new contract negotiations by the American Federation of Government Employees, AFL - CIO, National Meat Graders Council which are not materially different from proposals previously determined to be negotiable by the Federal Labor Relations Authority.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL upon request of the American Federation of Government Employees, AFL - CIO, National Meat Graders Council negotiate concerning the union's proposal providing for the payment of travel and per diem expenses of employee negotiators involved in new contract negotiations.

                             ______________________________
                                      (Agency)

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 of the Federal Labor Relations Authority, Region III, 1111 18th Street, NW, Room 700 (P.O. Box 33758), Washington, DC 20033-0758, and whose telephone number is: (202) 653-8500. [PAGE]

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