29:1288(101)NG - NTEU VS TREASURY, IRS



[ v29 p1288 ]
29:1288(101)NG
The decision of the Authority follows:


29 FLRA NO. 101

NATIONAL TREASURY EMPLOYEES UNION

                  Union

      and

DEPARTMENT OF TREASURY
INTERNAL REVENUE SERVICE

                  Agency

Case No. 0-NG-1338

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute). The appeal concerns the negotiability of a single Union proposal, which we find is within the Agency's duty to bargain.

II. Proposal

The employer will pay travel and per diem for all union negotiators.

A. Positions of the Parties

The Agency requested that the Authority stay this case until judicial review of cases involving the negotiability of travel and per diem payments is completed. In support of its position, the Agency refers to 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) (Customs) and National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 21 FLRA No. 126 (1986), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 86-1373 (D.C. Cir. June 25, 1986) (IRS). More particularly, the Agency argues that the language and meaning of the proposal in IRS is identical to the language and meaning of the proposal presented here. Since a stay of the Authority's decision in IRS was granted by the Court of Appeals, a stay should likewise be granted by the Authority in this case, according to the Agency.

As to the merits of the proposal, the Agency takes the position that the proposal is outside the duty to bargain because (1) it is inconsistent with Federal law; (2) it is inconsistent with a Government-wide regulation; (3) it does not concern a condition of employment; and (4) it interferes with management's right to determine its budget and its mission.

The Union argues that the proposal is within the duty to bargain and does not violate management's rights, as alleged.

B. Analysis and Conclusion

1. The Proposal is Within the Duty to Bargain

The Agency makes essentially the same arguments that were made in both the customs and IRS decisions. In those decisions, the Authority concluded that proposals authorizing the payment of travel and per diem to employee union negotiators concerned conditions of employment and were not inconsistent with Federal law or Government-wide regulations. We reach the same conclusion here.

Additionally, in Customs, the Authority rejected an agency argument that the authorization of travel expenses conflicted with the agency's right to determine its budget. The Authority further found, however, that an agency cannot be required to bargain over budgetary matters relating to programs and operations to be included in the agency's estimation of proposed expenditures and the corresponding funding levels. Similarly, an agency may not be required to bargain over a matter where a substantial demonstration is made that a significant and unavoidable increase in costs will result which are not offset by compensating benefits.

In this case, the Agency argued that the proposal would require it to establish and fund a separate travel and per diem program for employee/union negotiators. The Agency indicated that this account would be different from its normal travel account in one important respect--the account established by the proposal would not be subject to the Agency's control while the normal travel account can be reduced or eliminated as needed by the Agency.

We find that the Agency's argument lacks merit. The proposal does not prescribe a particular program or operation to be included in the Agency's budget. As the Agency acknowledges, it already maintains a travel account. There is nothing in the proposal that mandates the establishment of a separate account and nothing to indicate that the Agency's existing account could not be used to fund travel and per diem for negotiations.

We also reject the Agency's argument that the proposal conflicts with the right to determine its mission. The Agency states that its mission is to administer and enforce the internal revenue laws of the United States. The Agency claims that since the proposal would require it to establish and fund a separate travel and per diem account, over which the Agency has no control, the proposal would interfere with the Agency's determination as to where to expend necessary funds in order to accomplish its mission. In support of its argument, the Agency cited to the decisions in American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA No. 92 (1986) and Department of the Air Force, Lowry Air Force Base, Colorado, 16 FLRA 1104 (1984) in which the Authority found that hours of operation were mission related and therefore were outside the obligation to bargain.

In our view, the Agency has not demonstrated that negotiations over the proposal would interfere with its mission. First, the cases cited by the Agency are not applicable. In Social Security Administration, the proposal specified the hours of operation for one of the agency's field offices. The Authority found that since a part of the agency's mission was to provide services to the public, a decision regarding the particular hours the office would be open to the public was mission related and, therefore, the proposal was inconsistent with management's right to determine its mission. In Lowry Air Force Base, the Authority found that there was no obligation to bargain over commissary store hours since part of the agency's mission was to provide commissary services to various personnel.

Second, we find nothing in the proposal itself which interferes with the administration and enforcement of the internal revenue laws. The proposal is merely concerned with authorizing travel and per diem payments for union negotiators. Moreover, the Agency's argument appears to be premised on its view that the proposal would require the establishment and funding of a separate travel account. As we noted in connection with the Agency's argument concerning its budget, nothing in the proposal requires such action by the Agency.

2. The Request for a Stay is Denied

We find that the Agency has failed to provide persuasive reasons for holdi