31:0856(61)NG - NTEU and Treasury, Bureau of Public Debt -- 1988 FLRAdec NG
[ v31 p856 ]
The decision of the Authority follows:
31 FLRA NO. 61 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF THE TREASURY BUREAU OF THE PUBLIC DEBT Agency Case No. 0-NG-1453 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 one Union proposal. The proposal seeks payment of travel and per diem expenses, in accordance with Federal Travel Regulations (FTRs), for members of the Union Negotiating Committee while on official time. For the reasons that follow, we find the proposal to be negotiable. II. Proposal Members of the Union Negotiating Committee who are on official time shall receive full travel and per diem allowances in accordance with current Federal Travel Regulations. III. Background On August 3, 1987, the Union requested an allegation of nonnegotiability from the Agency regarding this proposal. The Agency did not respond to the Union's request. On September 3, 1987, the Union filed its petition for review with the Authority. Subsequently, the Agency informed the Union that it had not been served with a copy of the petition for review and that, therefore, it did not know that the 30-day period to file its response had begun. On November 5, 1987, the Union served the Agency with a copy of the petition for review. The Agency did not file a statement of position with the Authority. Rather, on December 18, 1987, it served on the Union its allegation of nonnegotiability. IV. Positions of the Parties The Agency asserts in its allegation of nonnegotiability that the proposal is nonnegotiable because it does not involve a condition of employment and also because it is inconsistent with Government-wide regulations. The Agency provided no arguments in support of its allegation. The Union argues that the proposal involves a condition of employment, and that it is within the duty to bargain. V. 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 6 (1986) (U.S. Customs Service), affirmed sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988), the Authority found that representation of employees in matters concerning their employment affects the working conditions of those employees. The Authority held that a proposal relating to payment of travel and per diem expenses for union representatives while on official time concerned conditions of employment of bargaining unit employees. Therefore, it was within the duty to bargain. Thus, for the reasons more fully expressed in U.S.Customs Service, we find that the proposal before us concerns a bargainable condition of employment. B. The Proposal Is Not Inconsistent With Federal Law and Government-wide Rules and Regulations In U.S. Customs Service the Authority found that payment of travel and per diem expenses for union representatives was consistent with law and regulations, and that, therefore, it was within the duty to bargain. In U.S.Customs Service the Authority found that under the Travel Expenses Act, 5 U.S.C. 5701 et seq., and the Federal Travel Regulations (FTRs), 41 C.F.R. 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. In affirming U.S. Customs Service, the D.C. Circuit Court noted that the Travel Expense Act (TEA) authorizes reimbursement of travel expenses to employees on official business when the travel is determined to be sufficiently in the interest of the United States so as to be regarded as official business. The court stated that "Congress deemed collective bargaining sufficiently in the public interest to require that employees be paid for time spent in that activity." 836 F.2d at 1385. The court also stated that "Congress did not deem the activity always sufficiently in the public interest to be equivalent to "official business." Such activity has, however, been deemed "official business" when it is determined that the travel in the course of the activity serves the convenience of the agency or is otherwise in the primary interest of the government." Id. The court concluded that the Authority had correctly decided that the discretion involved in the determination of an agency's convenience and the Government's primary interest is bargainable. The Authority has 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 522 (1986), petition for review filed sub nom. National Labor Relations Board v. FLRA, No. 86-1504 (D.C. Cir. Sept. 8, 1986). Nothing in the proposal before us prevents the Agency from complying with the requirements of law and regulations. In fact, the proposal requires that payment of travel and per diem expenses be made in compliance with current Federal Travel Regulations. Further, nothing in the proposal prevents the Agency from making individual determinations regarding whether to authorize travel expenses under the FTRs. Thus, to the extent that case-by-case determinations are required under law and regulation, we find that this proposal is not inconsistent with such procedures. See U.S. Customs Service, 21 FLRA 6. For the reasons stated above, we find that this proposal concerns conditions of employment and that it is consistent with the FTRs. Consequently, we find this proposal within the duty to bargain. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 26 FLRA 589 (1987); National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA 1067, 1067-71 (1987) (Proposals I and 2), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 87-1166 (D.C. Cir. Apr. 15, 1987); National Joint Council of Food Inspection Locals, AFGE, AFL - CIO and Food Safety and Inspection Service, U.S. Department of Agriculture, 23 FLRA 10, 11 (1986) (Provision 2), petition for review filed sub nom. Department of Agriculture, Food Safety and Inspection Service v. FLRA, No. 86-1476 (D.C. Cir. Aug. 25, 1986). VI. Order The Agency must, upon request, or as otherwise agreed to by the parties, bargain on the Union's proposal. */ Issued Washington, D.C., March 17, 1988. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote */ In finding that the proposal is within the duty to bargain, we express no judgment as to its merits.