30:0690(87)NG - NTEU and Treasury, IRS -- 1987 FLRAdec NG
[ v30 p690 ]
The decision of the Authority follows:
30 FLRA NO. 87 30 FLRA 690 31 DEC 1987 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE Agency Case No. O-NG-1371 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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) and involves the negotiability of two proposals which concern (1) employee use of the General Services Administration's (GSA) "city pairs" program for travel conducted while engaged in labor-management activities and (2) the earning of "credit hours" by employees while engaged in labor-management activities. We find that Proposal 1 is nonnegotiable because it is inconsistent with a Government-wide rule or regulation. We find that Proposal 2 is negotiable. II. Proposal 1 Union representatives, e.g. stewards, chief stewards, and chapter presidents, will be permitted to use the GSA city-pairs air travel program for all labor-management travel for which official time is granted and where the agency is not otherwise reimbursing the union official for the travel expenses. Where the union chooses to use the program, it will reimburse the agency the cost of the ticket. Where the agency is reimbursing the union the cost of the travel, the union will be free to reject the use of the "city-pairs" program without adverse impact. A. Positions of the Parties The Agency asserts that this proposal is nonnegotiable because it is inconsistent with law, the Travel Expense Act, and Government-wide regulations, the Federal Travel Regulations and Federal Property Management Regulation (FPMR) A-30. The Agency also asserts generally that the payment of travel and per diem expenses to Union negotiators is nonnegotiable and requests the Authority to reconsider its decision in National Treasury Employees Union and Department of the 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. Mar. 27, 1986). The Union asserts that because the proposal covers travel by Union representatives only while they are on official time granted under section 7131 of the Statute, the travel involved qualifies as "official" travel within the context of the laws and regulations governing "official government travel." Therefore, the Union contends that the proposal is negotiable because it is consistent with applicable laws and regulations. B. Analysis and Conclusions The "city pairs" program applies only to individuals who are engaged in official travel conducted at Government expense. Under the "city pairs" program GSA has entered into contracts with U.S. certified carriers to furnish airline/rail passenger transportation for official Government travel between selected U.S. and international cities/airports at reduced rates. 1 Under the Federal Travel Regulations (FTRs), use of the discount fares offered under the "city pairs" program is generally mandatory for authorized air travel between "city pairs." FTRs, 1-2.2c(1)(b). The FTRs also require all agencies, with exceptions not relevant here, to follow the policies, procedures and requirements established in FPMR Temporary Regulation A-22 for use of contract carriers for official air travel between "city pairs." FTRs, 1-3.4b. FPMR Temporary Regulations A-22 has been supplanted by FPMR A-30. 51 Fed. Reg. 40805. The stated purpose of FPMR A-30 is to govern the use of carriers under contract to GSA to provide specified transportation services to "Federal employees and other persons authorized to travel at Government expense." FPMR A-30, Attachment A, section 1. The Union does not dispute that the "city pairs" program is limited to "official Government travel." However, it argues that any travel conducted while on official time granted under section 7131 of the Statute automatically qualifies as official Government travel. We disagree. Employees are not necessarily on official business or in an official capacity for purposes of engaging in "official" travel simply because they are engaging in union representational activity on official time. See Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Authority, 464 U.S. 89 (1983). Under some circumstances, such employees may be considered to be engaged in official business and, consequently, permitted to travel at Government expense. See National Treasury Employees Union and Department of the 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. Mar. 27, 1986). This proposal, however, is not so limited. It would apply without regard to the particular circumstances to all employees who are traveling while on official time granted pursuant to section 7131 of the Statute. We also reject the Union's argument that the proposal is consistent with governing regulations because employees traveling on official time are analogous to the types of persons authorized in FPMR A-30 to use the "city pairs" program on a permissive basis. 2 The provision relied upon by the Union applies to specific enumerated categories. The Union has shown no basis in the regulation or otherwise which would indicate that the categories are merely illustrative so that the provision may be applied to persons in analogous situations. Moreover, the persons in the specified categories are "Federal employees and other persons authorized to travel at Government expense" and clearly come within the confines of the "city pairs" program. FPMR A-30, Attachment A, section 1. Employees who are traveling on official time granted under section 7131, but not at Government expense, do not. Because the proposal is inconsistent with the policies, procedures and requirements established in FPMR A-30, the proposal also is inconsistent with section 1-3.4b of the FTRs, which mandates compliance with the governing FPMR. It is also inconsistent with the FTRs insofar as it would allow employees traveling at Government expense while on official time to reject use of the "city pairs" program. Section 1-2.2c(l)(b) of those regulations requires mandatory use of the "city pairs" program for air travel between "city pairs." Under that program, exceptions to use of contract carriers are allowed only under circumstances specified in FPMR A-30, Attachment A, section 9.b. This proposal would require that exceptions be allowed without regard to whether those circumstances were present. The FTRs are a Government-wide regulation. See, for example, National Federation of Federal Employees, Local 29 and U.S. Army Engineer District, Kansas City, Missouri, 13 FLRA 23 (1983). Because the proposal is inconsistent with a Government-wide regulation, it is not within the duty to bargain. In view of this conclusion, we do not pass on the Agency's contention that FPMR A-30, itself, constitutes a Government-wide regulation. Insofar as the Agency raises general arguments concerning the payment of travel and per diem expenses which were addressed in the Authority's decision in U.S. Customs Service, 21 FLRA 6, we reject them here for the reasons expressed in that decision. Also, we decline to reconsider our decision in that case as the Agency requests. III. Proposal 2 Union representatives, e.g. stewards, chief stewards, and chapter presidents, may earn credit hours while performing the duties listed in Section 2D above, e.g. attending formal meetings with managers, attending grievance meetings, etc. so long as they comply with all other requirements of the credit hours program, e.g. securing their manager's agreement that the time may be worked as credit hours, and so long as they are otherwise on a credit hour program in their normal work schedule. Union representatives may earn credit hours while performing the duties listed in Section 2F above, e.g., investigating grievances, interviewing witnesses, conferring about contract problems, so long as they comply with all other requirements of the credit hour program and so long as they are otherwise on a credit hour program in their normal work schedule. A. Positions of the Parties The Agency argues that this proposal is nonnegotiable because it conflicts with the Federal Employees Flexible and Compressed Work Schedules Act (the Act). The Union denies that this proposal conflicts with the Act. B. Analysis and Conclusions In National Treasury Employees Union, Chapter 65 and Department of the Treasury, Internal Revenue Service, 25 FLRA 373 (1987), we found that a proposal which would allow employees to earn credit hours for time spent in labor-management activities was negotiable. In that decision, we found that the Act allows employees to earn credit hours, up to specified limits, by working beyond their basic work requirement on a given day. The credit hours may then be applied toward meeting the employee's basic work requirement at some other time. We found that time spent engaging in representational duties on official time which fell within the employee's regularly scheduled flexible tour of duty constituted duty time and could be counted toward earning credit hours under the Act. We noted that our conclusion in that case was not inconsistent with other decisions in which the Authority had held that employees could not receive overtime compensation for labor-management activities performed outside their regular tour of duty because such hours constituted nonduty time. 3 Unlike the proposal in Internal Revenue service, 25 FLRA 373, the proposal in this case is not limited to allowing credit hours to be earned for participation in management controlled or initiated meetings. This proposal would also allow credit hours to be earned for activities conducted on "bank time." Based on the record, we conclude that "bank time" is simply a form of official time granted pursuant to section 7131(d) of the Statute. Inasmuch as "bank time" activities, like other official time activities, may be performed within the employee's regularly scheduled flexible tour of duty and, consequently, on duty time, the holding in Internal Revenue Service applies to "bank time" activities. This proposal, like that in Internal Revenue Service, would allow employees to earn credit hours based on the performance of labor-management activities while on official time within their regularly scheduled flexible tour of duty. For the reasons expressed in Internal Revenue Service, which are summarized above, we conclude that this proposal does not conflict with the Federal Employees Flexible and Compressed Work Schedules Act. It is within the duty to bargain. We decline to reconsider our decision in Internal Revenue Service as the Agency requests. IV. Order The Union's petition for review as to Proposal 1 is dismissed. The Agency shall upon request, or as otherwise agreed to by the parties, bargain on Proposal 2. 4 Issued, Washington, D.C., December 31, 1987. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 FPMR (Federal Property Management Regulation) A-30, Attachment A, section 1. FPMR A-30 appears at 41 C.F.R., Chapter 101, subchapter A, appendix. Footnote 2 FPMR A-30 provides at Attachment A, section 3.b.: b. The following persons are exempt from the mandatory use of this regulation; however, they are authorized to obtain services under this regulation at the option of the contractors when seating space is available: (1) Uniformed members of the Public Health Service, the National Oceanic and Atmospheric Administration, and the U.S. Coast Guard; (2) Members and employees of the U.S. Congress; (3) Employees of the judicial branch of the Government; (4) Employees of the U.S. Postal Service; (5) Foreign service officers; (6) Cost-reimbursable contractors working for the Government; and (7) employees of any agency having independent statutory authority to prescribe travel allowances and who are not subject to the provisions of 5 U.S.C. 5701 through 5709. Footnote 3 Social Security Administration and American Federation of Government Employees, Local 1164, AFL-CIO, 19 FLRA 43 (1985); Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 21 FLRA 580 (1986). The decisions in those cases relied on the District Court decision, NTEU v. Gregg, No. 83-546 (D.D.C. Sept. 28, 1983), which the Agency cites in support of its position in this case. Like Social Security Administration and Patent and Trademark Office, NTEU v. Gregg involved the performance of labor-management activities on nonduty time. Internal Revenue Service involved the performance of labor-management activities on duty time. Based on that difference, Internal Revenue Service is distinguishable from NTEU v. Gregg as well as Social Security Administration and Patent and Trademark Office. Footnote 4 In finding that Proposal 2 is within the duty to bargain, we make no judgment as to its merits.