35:1008(109)NG - - NFFE and Agriculture, Forest Service - - 1990 FLRAdec NG - - v35 p1008



[ v35 p1008 ]
35:1008(109)NG
The decision of the Authority follows:


35 FLRA No. 109

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE

(Agency)

0-NG-1733

DECISION AND ORDER ON NEGOTIABILITY ISSUE

May 7, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of a provision which would enable the Union to use various mail services, including "penalty mail," for representational purposes.(1) The provision was agreed to by the Union and the Forest Service and disapproved by the Department of Agriculture pursuant to section 7114(c) of the Statute. For the following reasons, we find that the provision concerns a condition of employment of bargaining unit employees and is within the Agency's duty to bargain.

II. Provision

Mail Service: The internal mail distribution service of management shall be available for reasonable use of the Union. The Union will have the availability of mail services which includes the United States mail, messenger service operated by the U.S. Postal Service, use of the United States mail under indicia and certified mail for representational purposes.

(Only the underlined sentence is in dispute.)

III.Positions of the Parties

A.Agency Position

The Agency contends that "the Union is seeking the right to have the Agency--the United States Government--pay its postage fees." Statement of Position at 5. The Agency asserts that none of the Union's representational functions "can be or are 'official business of the Government'". Id. The Agency also argues that, based on the Union's statutory and contractual rights, "[t]he list of 'representational purposes' is infinite." Id. at 4.

According to the Agency, the provision does not concern a condition of employment within the meaning of section 7103(a)(14) of the Statute. The Agency argues that "[a]lowing the Union the use of United States penalty, indicia, or franked mail has no bearing whatsoever on the work situation or employment relationship of bargaining unit employees." Id. at 12. Therefore, the Agency asserts that the disputed sentence "does not directly affect working conditions of bargaining unit employees and is outside the Agency's obligation to bargain." Id.

The Agency also maintains that the provision is inconsistent with law, specifically 39 U.S.C. §§ 3201 and 3202. Section 3201 defines penalty mail as "official mail, other than franked mail, which is authorized by law to be transmitted in the mail without prepayment of postage[.]" Section 3202 describes the type of documents that may be "transmitted as penalty mail" as official mail of "officers of the Government of the United States[.]" 39 U.S.C. § 3202(a)(1)(A). The Agency asserts that "documents placed in the United States mail by the Union are not 'official business of the Government,' without regard to the content of the specific documents mailed." Statement of Position at 7.

The Agency maintains that the Union's mail is not official Government business and that the Union may use penalty mail only if the material it is sending can "legitimately be considered official business of the United States Government." Id. The Agency asserts that in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF), the Supreme Court "rejected the FLRA's argument that labor-management negotiations qualify as 'official business' within the meaning of the Travel Expense Act, 5 U.S.C. 5702[.]" Statement of Position at 7. The Agency asserts that consistent with BATF, "any correspondence the Union prepares in representing unit employees cannot be construed to be official business of the Government." Id. at 8.

In addition, the Agency cites Matter of: Use of Penalty Mail By Court Reporters in Mailing of Official Court Correspondence, 59 Comp. Gen. 52 (1979) (Court Reporters). The Agency states that in Court Reporters, the Comptroller General found that court reporters may not use penalty mail envelopes for "fee-generating correspondence even though they reimburse the Administrative Office of the United States Courts" if the Office "determines that such activities are not official business." Statement of Position at 8. Based on Court Reporters, the Agency argues that the Union's use of penalty mail for representational activities would be impermissible even if the Union reimbursed the Activity for the postage used.

The Agency maintains that "[s]ince the Union's representational activities are not 'official business,' and an Agency may use appropriated funds only for 'official business,' extending access to the penalty mail system to the Union does not fall within the four corners of the Statute." Id. at 10. Accordingly, the Agency asserts that the provision is inconsistent with law and is nonnegotiable.

B.Union Position

The Union contends that the use of penalty mail would be limited to representational purposes such as grievance handling, negotiations, and statutory appeals work. The Union argues that the Agency's assertion that the list of representational purposes is infinite "is simply unsupportable." Union's Response at 2.

The Union maintains that "[t]he use of penalty mail by the union for representational purposes is a condition of employment." Id. at 7. The Union contends that the provision directly affects bargaining unit employees because the use of penalty mail would be limited to representational purposes which necessarily involve bargaining unit employees and because "[c]ommunication is at the heart of effective representation, and effective representation necessarily has a major impact on the working conditions of employees." Union's Response at 8. The Union relies on Authority decisions holding that a union's use of Government office space is a negotiable condition of employment.

The Union argues that "[a]lthough 39 U.S.C. Sections 3201 and 3202 do not expressly limit the use of penalty mail only to the official business of the government, such a limitation may be inferred from the statutory language." Id. The Union notes, however, that the statutory provisions "are silent as to what constitutes official business[.]" Id. at 3. The Union maintains, therefore, that "[t]he critical question is whether there is anything in the relevant statutory provisions or case law prohibiting a union's representational work from being considered official business of the government." Id.

According to the Union, the Court's decision in BATF supports its position. The Union argues that although the Supreme Court found "that union negotiators were not automatically entitled to travel and per diem expenses," the Court further recognized that the payment of travel and per diem expenses was "fully negotiable." Id. at 4 (emphasis in original). The Union notes that the Authority has followed the Court's ruling in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986) (NTEU and Treasury), affirmed sub nom. Department of Treasury, Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988), where it found that although the Union was not entitled to the payment of travel and per diem expenses, the matter was fully negotiable.

The Union argues that "[t]he [C]ourt's reasoning applies with equal force in this case, where the use of penalty mail is authorized for government business." Union's Response at 4. The Union contends that all representational matters are related to Government business because the Union is either initiating or responding to Agency concerns. The Union also maintains that "[e]ven if representational work is not viewed as 'official business' under the Federal Labor-Management Relations Statute, there is nothing to preclude the Forest Service from sanctioning the union's use of penalty mail because of its intrinsic connection to the business of the government." Id. at 4-5.

The Union also maintains that Postal Service regulations support its position. The Union cites a provision in the Domestic Mail Manual which states:

Departments and agencies authorized to mail matter as penalty mail should maintain rules and guidelines for the use of penalty mail privileges, which should include provisions concerning the circumstances, if any, when officers or employees may mail retirement announcements, Christmas cards, job resumes, complaints, grievances, and similar materials, as penalty mail.

Id. at 5 (emphasis in original), citing Domestic Mail Manual, Section 137.241 (incorporated by reference, 39 C.F.R. § 111.1), published at 49 Fed. Reg. 33567 (1984). Under this provision, the Union contends that the Agency has discretion to determine that the use of penalty mail for representational purposes is in the Government's interest.

Finally, the Union maintains that the Agency's reliance on the Comptroller General's decision in Court Reporters is misplaced. The Union contends that the decision in that case was based on a determination that the Court Reporter's Act requires court reporters to furnish their own supplies, including preprinted envelopes and postage fees. The Union argues that as the Comptroller General also found that the determination of what constitutes official mail is within the discretion of an agency, the decision supports its position that the use of penalty mail is fully negotiable.

IV. Analysis

A. Preliminary Matter

Although the provision describes several forms of mail service, the parties' arguments address only penalty mail. It appears from the parties' positions, therefore, that the only aspect of the provision that is in dispute is the Union's use of penalty mail. Accordingly, we will address only that portion of the provision.

B. The Provision Concerns a Condition of Employment under Section 7103(a)(14) of the Statute

Section 7103(a)(14) of the Statute defines "conditions of employment," in relevant part, as "personnel policies, practices, and matters . . . affecting working conditions."

We conclude that the subject matter of the provision clearly satisfies the statutory definition.

The provision would enable the Union to use penalty mail for representational purposes. The Union asserts that the "representational purposes" encompassed within the provision would be limited to "grievance handling, negotiations and statutory appeals work." Union's Response at 2. The Union's assertion is consistent with the plain wording of the provision and, accordingly, we adopt it for the purposes of this decision. Consequently, we reject the Agency's assertion that "the list of 'representational purposes' is infinite." Statement of Position at 4.

The Union's representation of employees in matters concerning their employment affects the working conditions of those employees. See American Federation of Government Employees, AFL-CIO, National Council of SSA Field Operations Locals and Social Security Administration, 25 FLRA 622, 625 (1987) (Proposal 2). Further, proposals which provide union access to agency facilities for the purpose of carrying out labor-management relations activities are directly related to the working conditions of unit employees. See American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 609 (1980) (Proposal II), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). Consequently, we conclude that this provision, which would provide the Union access to penalty mail for representational purposes, concerns a personnel policy, practice, or matter affecting the working conditions of unit employees.

C. The Provision is Not Contrary to Law, Rule, or Regulation

In order to decide whether the disputed sentence is negotiable, we must determine whether the Union's use of penalty mail is consistent with statutory and regulatory provisions governing the use of penalty mail. After a careful review of the relevant statutory and regulatory provisions, we find that a determination by the Agency that the Union's representational activities are official business of the Government would not be contrary to law, rule, or regulation.

Nothing in the penalty mail statute prohibits a determination that the Union's representational mail is official business of the Government. In fact, the statute does not define official business. In addition, Postal Service regulations state, in relevant part, that an "agency should determine which matter relates exclusively to its own business." Domestic Mail Manual, Section 137.241 (incorporated by reference, 39 C.F.R. 111.1), published at 49 Fed. Reg. 33,567 (1984). As the Union noted, the Manual lists complaints and grievances as examples of the type of material that may, at an agency's discretion, be sent as penalty mail.

As the relevant statute is silent as to the definition of official business, and the Domestic Mail Manual states that the determination of what material constitutes official business is within an agency's discretion, we find that it is within the discretion of the Agency to determine that the Union's representational functions constitute official business for the purpose of using penalty mail. Matters which are within the discretion of an agency and are not otherwise inconsistent with law, rule, or regulation are negotiable. NTEU, Chapter 6 and IRS, New Orleans District, 3 FLRA 748, 759-60 (1982). The Union's use of penalty mail for representational purposes is a matter within the Agency's discretion and is not inconsistent with law, rule, or regulation. Therefore, the provision is negotiable. See AFGE, AFL-CIO, Local 1631 and Veterans Administration Medical Center, Chillichothe, Ohio, 25 FLRA 366, 369 (1987) (Provision 1) (proposal permitting the union use of office space found negotiable because it was within the discretion of the agency and was not otherwise nonnegotiable).

Our conclusion is consistent with the Authority's ruling with respect to the term "official business" in section 5702(a) of the Travel and Expenses Act. See 5 U.S.C. § 5702(a)(1) (1988). In finding the payment of travel and per diem expenses for union officials performing representational functions negotiable, the Authority found that it is within an agency's discretion to determine what la