30:0022(6)CA - Agriculture and AFGE Local 2831 -- 1987 FLRAdec CA



[ v30 p22 ]
30:0022(6)CA
The decision of the Authority follows:


30 FLRA No. 6

UNITED STATES DEPARTMENT
OF AGRICULTURE

             Respondent

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2831

             Charging Party

Case No. 2-CA-70099

DECISION AND ORDER

I. Statement of 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 based upon a stipulation entered into by the Respondent, the Charging Party (the Union) and the General Counsel. The General Counsel and the Respondent have filed briefs with the Authority. 1

The complaint alleges that the Respondent violated section 7116 (a) (1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by preventing through its Personnel Letter No. 711-10 (May 16, 1984), its subordinate organization Farmers Home Administration, New Jersey (FmHA, New Jersey) from engaging in collective bargaining over the Union's contract proposal concerning travel and per diem expenses associated with labor relations activities. As a result, the Respondent interfered in the collective bargaining relationship between FmHA, New Jersey and the Union. [PAGE]

II. Background

Since April 27, 1983, the Union and FmHA, New Jersey have been parties to a collective bargaining agreement with a term of 3 years with the agreement subsequently effective pending renegotiations. Article 2, Section 2.5 of the agreement provides as follows:

2.5 MILEAGE AND PER DIEM: When necessary, the Employer will pay the mileage and per diem of the Union officials who are engaged in representation activities. The Union agrees its stewards will attempt to resolve grievances by telephone before traveling to the worksite of the grieving employee. A steward will represent only the employees in the specific area in which the steward is a designated representative. Mileage and per diem will be kept to a minimum and will be paid only to Union officials.

In January 1986, the Union requested renegotiation of the agreement. During the course of negotiations, the Union submitted a contract proposal for Article 2, Section 2.5 requiring payment by FmHA, New Jersey of travel and per diem expenses for Union representatives engaged in labor-management activities. The proposal required payment of travel and per diem expenses by deleting the phrase "when necessary" from the existing contract language.

On October 27, 1986, based on the Respondent's Personnel Letter 711-10, FMHA, New Jersey declared the Union's proposal regarding travel and per diem to be nonnegotiable. Personnel Letter 711-10 pertinently provided:

PROCEDURE

The following procedures are established regarding the payment of travel and per diem expenses to employee union representatives when official time is granted for negotiations and/or contract administration activities under 5 USC 7131(a) and (d).

(2) Management negotiators cannot negotiate any agreement with any union which would authorize payment of travel and per diem to union negotiators and/or representatives. It is the Department's position that the issue is non-negotiable. [ v30 p2 ]

In their stipulation of facts, the parties agree that the Union's proposal on travel and per diem expenses is substantially similar to a proposal found negotiable by the Authority in National Treasury Employees Union and Department of Treasury, U.S. Customs Service, 21 FLRA 6 (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), which was decided and issued on January 31, 1986. In their stipulation of facts, the parties further agree that through its personnel letter, the Respondent prevented its subordinate organization FmHA, New Jersey from engaging in collective bargaining over the Union's contract proposal concerning travel and per diem expenses.

III. Positions of the Party

The Respondent acknowledges that the language of the Union's proposal is identical to the language of the proposal the Authority held negotiable in Customs Service. However, the Respondent contends that in contrast to Customs Service, there is no statement of intent and no other evidence in the record that indicates that the proposal requires the payment of travel and per diem expenses to comport with the Travel Expense Act and Federal Travel Regulations. Consequently, the proposal must be construed to require the payment of travel and per diem expenses regardless of whether such payment comports with the Travel Expense Act and the Federal Travel Regulations. Accordingly, the Respondent argues that because it is inconsistent with Federal law and Government-wide regulation, the proposal must be found outside the duty to bargain.

The General Counsel contends that the Authority's decision in Customs Service is dispositive of the issues in this case. The General Counsel maintains that the Union sought to negotiate the travel and per diem proposal consistent with that decision. Consequently, the General Counsel argues that the Respondent violated section 7116(a)(1) and (5) of the Statute by preventing its subordinate organization FmHA, New Jersey from bargaining with the Union over a negotiable proposal and as a result by interfering in the bargaining relationship between FmHA, New Jersey and the Union.

IV. Analysis and Conclusion

We agree with the General Counsel that the decision in Customs Service is dispositive. Accordingly, we find that the Respondent violated the Statute as alleged. [ v30 p3 ]

It is well established that an agency violates section 7116(a)(1) and (5) of the Statute when it refuses to bargain over a proposal that is substantially identical to a proposal the Authority has previously determined to be negotiable under the Statute. For example, Internal Revenue Service, 28 FLRA 14 (1987). In the case before us, the parties have stipulated that the Union's proposal is substantially similar to the proposal the Authority found negotiable in Customs Service. We find, contrary to the Respondent's contentions, that in entering into such a stipulation, the parties agreed that the intended meaning as well as the literal language of the proposal submitted by the Union are substantially similar to the intended meaning and literal language of the proposal found negotiable in Customs Service. We, therefore, reject the Respondent's contention that the Union's proposal is nonnegotiable because it is inconsistent with Federal law and Government-wide regulations. Accordingly, we find that the refusal to bargain over the Union's proposal constituted a violation of section 7116(a)(1) and (5) of the Statute. See Internal Revenue Service, 28 FLRA 14, 15-16.

Based on the stipulation by the parties, we further find that the Respondent violated section 7116(a)(1) and (5) of the Statute by preventing its subordinate organization FmHA, New Jersey from bargaining over the Union's proposal, and as a result by interfering in the collective bargaining relationship between FmHA, New Jersey and the Union. 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).

V. Decision

We conclude that the Respondent interfered with its subordinate organization's collective bargaining relationship with the Union in violation of section 7116(a)(1) and (5) of the Statute. To remedy this unfair labor practice, we will order the Respondent to cease and desist from directing FmHA, New Jersey to declare nonnegotiable proposals made in the course of negotiations by the Union which are substantially identical to proposals previously determined to be negotiable by the Authority. Furthermore, we will direct the Respondent, upon request of the Union, to permit FmHA, New Jersey to negotiate concerning the Union's proposal that would require the payment of travel and per diem expenses of employees engaged in union representation activities. [ v30 p4 ]

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the United

States Department of Agriculture, shall:

1. Cease and desist from:

(a) Directing the U.S. Department of Agriculture, Farmers Home Administration, New Jersey, to declare non-negotiable proposals made in the course of negotiations by American Federation of Government Employees, AFL - CIO, Local 2831 which are substantially identical to proposals previously determined to be negotiable by the Federal Labor Relations Authority.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of 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 by the American Federation of Government Employees, AFL - CIO, Local 2831, permit Farmers Home Administration, New Jersey, to negotiate concerning Local 2831's proposal that would require Farmers Home Administration, New Jersey, to pay the travel and per diem expenses of employee engaged in union representation activities.

(b) Post at its Farmers Home Administration, New Jersey facility where bargaining-unit employees represented by the American Federation of Government Employees, AFL - CIO, Local 2831 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 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, [ v30 p5 ] Region II, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, D.C., November 10, 1987

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v30 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 direct the U.S. Department of Agriculture, Farmers Home Administration, New Jersey, to declare nonnegotiable any proposals made in the course of negotiations by the American Federation of Government Employees, AFL - CIO, Local 2831 which are substantially identical to 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 our employees in the exercise of their rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL, upon request of the American Federation of Government Employees, AFL - CIO, Local 2831, permit Farmers Home Administration, New Jersey, to negotiate regarding the proposal providing for the payment of the travel and per diem expenses of employees engaged in union representation activities.

                                ___________________________
                                         (Agency)

Dated: ___________