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






                                            Case No. 0-NG-1453


     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

     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,

     Nothing in the proposal before us prevents the A