21:0006(2)NG - NTEU and Dept. of the Treasury, U.S. Customs Service -- 1986 FLRAdec NG

[ v21 p6 ]
The decision of the Authority follows:

 21 FLRA No. 2
                                            Case No. 0-NG-293
                                                    9 FLRA 629
                       DECISION AND ORDER ON REMAND
    I. Statement of the Case
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the District of Columbia Circuit.
 The sole question presented is whether payment by an agency of travel
 expenses and per diem allowances incurred by employees using official
 time in the conduct of labor-management relations is within the duty to
 bargain under the Federal Labor-Management Relations Statute (the
    In a previous decision in this case, National Treasury Employees
 Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 629
 1982 , the Authority found the following Union proposal to be within the
 duty to bargain.
       The employer agrees to pay the travel expenses incurred by
       employees while using official time available under the terms of
       this agreement.
    The original finding of negotiability was premised upon the
 conclusion that where "official time" had been granted by the Statute,
 or negotiated between the parties, employees using it are on "official
 business" and thus, under law, are entitled to travel expenses and per
 diem allowances.  See Interpretation and Guidance, 2 FLRA 265 (1979).
 That interpretation was rejected by the Supreme Court in Bureau of
 Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983).  In
 footnote 17 at p. 107 of its decision the Supreme Court stated that,
 "unions may presumably negotiate for such payments in collective
 bargaining as they do in the private sector." In light of the decision,
 the Authority requested, and the Court of Appeals ordered, remand of the
 instant case.  Upon remand, the Authority issued a "Notice of Reopened
 Proceedings and Request for Statements of Position" in which it
 solicited a statement of position from each of the parties as to the
 effect of the Supreme Court's decision on the negotiability of the above
    II.  Positions of the Parties
    As explained by the Union, the proposal seeks agreement as to what
 categories of union activities shall be construed to be in the primary
 interest of the Government and, hence, "official business" for purposes
 of reimbursement of incidental and otherwise proper travel expenses.
 Once such a determination is made the Union acknowledges that "of
 course, all the specific Travel Regulations apply."
    The Agency contends that the proposal is not within the duty to
 bargain for three independent reasons:
    a. It does not concern conditions of employment within the meaning of
 section 7103(a) (14) of the Statute because payment of travel expenses
 is specifically provided for by law;
    b. it is inconsistent with Federal law and Government wide
    c. it interferes with its right to determine its budget under section
    III.  Analysis
    A. "Condition of Employment"
    The proposal clearly involves a condition of employment not excepted
 from the definition thereof.  Representation of employees in matters
 concerning their employment affects the "working conditions" of those
 employees.  American Federation of Government Employees, AFL-CIO and Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
 604 (1980) (Union Proposal II), enf'd as to other matters sub nom.
 Department of Defense v. FLRA, 659 F.2d 1140(D.C. Cir. 1981, cert.
 denied sub nom.  American Federation of Government Employees, AFL-CIO v.
 FLRA, 455 U.S. 945 (1982).  For relevant private sector decisions
 similarly finding such expenses to be conditions of employment, see
 Midstate Telephone Corporation v. NLRB, 706 F.2d 401 (2nd Cir. 1983) and
 Axelson, Inc. v. NLRB, 599 F.2d 91 (5th Cir. 1979).
    Whether travel expenses incurred in the conduct of labor-management
 relations activity are payable from federal funds is not specifically
 addressed by the Statute or the Travel Expense Act, 5 U.S.C. 5701, et
 seq.  The Statute and its legislative history are silent on this
 subject.  Indeed if it were not, the present litigation might well be
 unnecessary.  While the Travel Expense Act governs the general subject
 of payment of travel expenses for employees traveling on "official
 business," it does not specifically address payment for travel engaged
 in while conducting labor-management activity.  Thus the Agency' s
 contention that the proposal involves a matter specifically provided for
 by Federal statute so as to be excepted from the definition of
 conditions of employment must be rejected.
    B. "Inconsistent with Federal Law or Government-Wide Rules or
    The thrust of the Agency' s argument is that because no law
 specifically provides for such payment of expense, it must be inferred
 that such payments are precluded.  /1/ It further argues that the
 Federal Travel Regulations (hereinafter FTRs) limit payment to those
 travel expenses which are essential to the transacting of official
 business, and that the granting of "official time" does not confer
 "official business" status on travel undertaken while on official time.
 /2/ It contends that a determination as to whether an employee is on
 "official business" is dependent on the particular facts involved in
 each individual situation.  Consequently, such a determination is not a
 matter of "unlimited discretion" on the part of the Agency.  /3/
    The provisions of the Travel Expense Act and the FTRs are set forth,
 in relevant part, in appendices A and B. Briefly summarized the
 statutory provisions state that federal employees traveling on "official
 business" are entitled to appropriate expenses and allowances.  The
 regulations in turn limit such reimbursement to that" which is necessary
 to accomplish the purposes of Government effectively and economically."
    In exercising his authority to render decisions on questions
 involving payments and vouchers pursuant to 31 U.S.C. 3529 (1982 ed.),
 the Comptroller General of the United States administers and interprets
 the Travel Expense Act.  Neither the Travel Expense Act nor the
 regulations specifically define the term "official business." As a
 general proposition the Comptroller General has ruled that payment is
 authorized where the activity involved was sufficiently in the interest
 of the United States so as to be regarded as official business.  44
 Comp.Gen. 189 (1964).
    In the labor-relations context, the Comptroller General has applied a
 similar standard.  Prior to passage of the Statute, an agency was not
 precluded from making payment of travel expenses and per diem allowances
 to union representatives upon a determination that it served the
 convenience of the agency or was otherwise in the primary interest of
 the Government.  BATF, supra, pp. 100-01 n. 11 and 107 n. 17 citing 46
 Comp.Gen. 21 (1966).  /4/
    Thus determinations concerning whether to make such payments are
 within the discretionary administrative authority of an agency.  The
 Authority has consistently held that insofar as an agency has discretion
 regarding a matter affecting conditions of employment it is obligated
 under the Statute to exercise that discretion through negotiation unless
 precluded by regulatory or statutory provisions.
    National Treasury Employees Union, Chapter 6 and Internal Revenue
 Service, New Orleans District, 3 FLRA 748, 759-60 (1980).  Moreover,
 nothing in the Statute limits this duty to matters over which an agency
 has total discretion.  American Federation of Government Employees,
 AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C.,
 8 FLRA 409 (1982.  In the instant case, the Agency has not cited any
 legal or regulatory provision, nor is any apparent, which would
 absolutely prohibit it from exercising through negotiations the
 discretion which it possesses to determine whether, and under what
 circumstances, travel attendant to labor-management relations activities
 is sufficiently within the interest of the United States so as to
 constitute official business.  /5/
    The Union has acknowledged that payment of any travel expenses
 flowing from this proposal, if agreed upon, would be subject to the
 provisions of the FTRs.  /6/ Hence, we conclude the proposal would not
 require the Agency to authorize either specific travel or expenses which
 do not comport with the regulatory requirements and restrictions.  The
 proposal was not intended to, and could not, require the Agency to use
 specific authorization procedures and practices relating to actual
 travel which conflicted with the FTRs.  It would not foreclose
 individual determinations regarding the propriety under the FTRs of
 authorizing particular travel and expenses.  To the extent that
 case-by-case determinations are required under law and regulation, this
 proposal would not be inconsistent with such procedures.  Cf.  U.S.
 Department of Justice v. FLRA, 727 F.2d 481, 489-90 (5th Cir. 1984
 (wherein the Court held in the circumstances presented that law and
 regulations required case-by-case determination as to method or means of
 travel used by employees).  Thus the Agency's contention that the
 proposal is inconsistent with Federal law, and Government-wide
 regulations must be rejected.
    C. "Conflicts with the Right to Determine (the Agency's) Budget"
    The Authority has previously held that interference with the right of
 an agency to determine its budget under section 7106 insulates the
 negotiation process in two fundamental respects.  First, an agency
 cannot be required to negotiate particular budgetary matters relating to
 the determination of the programs and operations to be included in its
 estimation of proposed expenditures and the amounts required to fund
 them.  Second, where an agency makes a substantial demonstration that a
 significant and unavoidable increase in costs, not off set by
 compensating benefits, will result, an otherwise negotiable proposal may
 be found to violate this section 7106(a) right of the Agency.  American
 Federation of Government Employees, AFL-CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, supra, at page 608.
    The Agency acknowledges that the Union Proposal does not expressly
 require that a line item be added to the Agency' s budget and tacitly
 concedes that it would not prescribe an amount to be allocated in the
 Agency's budget for programs or operations.  The Agency argues (without
 specific support) that the proposal would entail significant and
 unavoidable costs which are not offset by compensating benefits to the
 Agency.  It only claims generally that the significance and
 unavoidability of increased costs attendant to the payment of travel
 expenses resulting from labor-management relations activities has been
 "officially recognized." /7/
    No specific information or estimates of the financial impact of the
 proposal have been presented.  Based on this record, the Agency's poorly
 supported assertion cannot provide a ground for concluding that there is
 a substantial demonstration that the proposal would result in a
 significant and unavoidable increase in costs.  Therefore, its
 allegation that the proposal is inconsistent with its right to determine
 its budget cannot be sustained.  American Federation of Government
 Employees, AFL-CIO, Local 32 and Office of Personnel Management,
 Washington, D.C., 6 FLRA 423 1981), aff'd mem. sub nom.  Office of
 Personnel Management v. FLRA, 706 F.2d 1229 D.C. Cir. 1983.
    IV.  Conclusion
    Based on the foregoing analysis, the Authority finds that the Union
 Proposal concerns a condition of employment which is within the Agency's
 administrative discretion, and is not inconsistent with law or
 Government-wide regulation.  Therefore, it is within the duty to
 bargain.  /8/ In making this finding, it is noted that while the Agency
 must bargain in good faith over the disputed proposal it is under no
 obligation to agree to this particular formulation.  Consideration by
 management of the consequences of the proposal are a legitimate aspect
 of the bargaining process.  Should matters of concern to the Agency,
 such as perceived potential for increased expenditures, prevent the
 parties from reaching agreement, such considerations could be presented
 to the Federal Service Impasses Panel in a proceeding pursuant to
 section 7119 of the Statute.
    V. Order
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain concerning the Union
    Issued, Washington, D.C., January 31, 1986
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ To the extent the Agency contends that the expenditure of funds
 to pay the travel expenses and per diem allowances of Agency employees
 using official time to conduct labor-management relations is unsupported
 by a congressional appropriation of funds, the claim is without merit.
 In September 1979, Congress appropriated funds for the "necessary
 expenses" of the Customs Service for fiscal year 1980.  Treasury, Postal
 Service, and General Government Appropriations Act of 1980, Pub.L. No.
 96-74, 93 Stat. 559, 560.  A line item for "travel and transportation of
 persons" was included in the Customs Service's budget estimate for that
 fiscal year.  Budget of the United States Government, Fiscal Year 1980,
 Appendix, at p. 762.  Subsequent to fiscal year 1980 the activities of
 the Customs Service, including travel of employees, have been carried
 out under continuing resolutions.  See, e.g., Continuing Resolution of
 1984, Pub.L. No. 98-151, 97 Stat. 964.  Such congressional appropriation
 acts, which presumably have supported travel by employees representing
 the Agency in connection with labor relations activities, also would
 support the disbursement of funds for such travel by Agency employees as
 may occur under the Union's proposal in this case.
    /2/ The FTRs have been held to be Government-wide rules or
 regulations within the meaning of the Statute.  National Federation of
 Federal Employees, Local 29 and U.S. Army Engineer District, Kansas
 City, Missouri, 13 FLRA 23(1983).
    /3/ The Agency incorporates by reference guidance issued by the
 Office of Personnel Management (OPM) that a determination that specific
 travel related to union activities is in the primary interest of the
 Government and, hence, constitutes "official business" is a decision
 reserved solely and exclusively to agencies.  FPM Letter 711-162
 (Subject:  Payment of Travel and Per Diem Expenses for Employee
 Negotiators Representing Unions in Collective Bargaining) dated January
 19, 1984.  The Authority notes that such guidance is merely that and is
 not binding on the various federal agencies.  See National Treasury
 Employees Union v. Devine, 587 F. Supp. 960, 963 (D.D.C. 1984);  see
 also Federal/Postal/Retiree Coalition v. Devine, 751 F.2d 1424 (D.C.
 Cir. 1985).
    /4/ Relying upon the principles enunciated by the Comptroller General
 in that opinion, the Federal Labor Relations Council, established by
 E.0. 11491 to administer labor-management relations in the Federal
 service, held a proposal seeking travel costs for certain contract
 administration activities to be within the duty to bargain under the
 provisions of that Executive Order.  National Treasury Employees Union
 and Department of the Treasury, U.S. Customs Service, Region VII, 5 FLRA
 250 1977.
    /5/ See also Unpublished Decision of the Comptroller General,
 B-195409, July 7, 1980 (wherein the Comptroller General, in ruling on a
 particular employee's entitlement to travel expenses, noted that payment
 of such expenses could be authorized by, among other things, provisions
 of a negotiated agreement).  It is noted that where a determination as
 to whether something is in the Government' s interest is within an
 agency's administrative discretion, such determination is subject to
 bargaining.  American Federation of Government Employees, AFL-CIO, Local
 3525 and U.S. Department of Justice, Board of Immigration Appeals, 10
 FLRA 61, 65(1982.
    /6/ Union Reply Brief to Agency Statement of Position at 4:  "of
 course, all the specific Travel Regulations apply."
    /7/ This claim is apparently premised or made in reliance upon the
    a. A report in Government Employees Relations Report (GERR) regarding
 an OPM estimate that payment of travel and per diem for union
 negotiators on official time under section 7131(a) of the Statute would
 cost 15 sample agencies $2 million per year.  GERR (BNA) No. 852 at 11
    b. Information contained in the record of an unrelated impasse
 proceeding before the Federal Service Impasses Panel (FSIP) wherein the
 agency in that proceeding stated that in the contract negotiations
 involved in that dispute, travel and per diem for the union team cost
 $187,302.25.  Equal Employment Opportunity Commission, Washington, D.C.
 and Equal Employment Opportunity Commission Council 216, American
 Federation of Government Employees, AFL-CIO, 80 FSIP 38, Report No. 179
 (1981 .
    c. The statement of the Supreme Court in BATF at 464 U.S. 100 that:
       Under the 1962 Executive Order establishing the first federal
       labor relations program, the decision whether to pay union
       representatives for the time spent in collective bargaining was
       left within the discretion of their employing agency, apparently
       on the ground that, without some control by management, the length
       of such sessions could impose too great a burden on government
       business.  (Citation and footnote omitted.)
    /8/ In finding this proposal within the duty to bargain the Authority
 makes no judgment as to its merits.
       Relevant Provisions of Travel Expense Act 5 U.S.C. 5701 et seq.
    5702. Per diem;  employee traveling on official business
    (a) Under regulations prescribed under section 5707 of this title, an
 employee while traveling on official business away from his designated
 post of duty, or in the case of an individual described under section
 5703 of this title, his home or regular place of business, is entitled
 to (1) a per diem allowance for travel inside the continental United
 States at a rate not to exceed $50, and (2) a per diem allowance for
 travel outside the continental United States, that may not exceed the
 rate established by the President, or his designee, for each locality
 where travel is to be performed.  For travel consuming less than a full
 day, such rate may be allocated proportionately.
    (c) Under regulations prescribed under section 5707 of this title,
 the Administrator of General Services, or his designee, may prescribe
 conditions under which an employee may be reimbursed for the actual and
 necessary expenses of official travel when the maximum per diem
 allowance would be less than these expenses, except that such
 reimbursement shall not exceed $75 for each day in a travel status
 within the continental United States when the per diem otherwise
 allowable is determined to be inadequate (1) due to the unusual
 circumstances of the travel assignment, or (2) for travel to high rate
 geographical areas designated as such in regulations prescribed under
 section 5707 of this title.
    5704. Mileage and related allowances
    (a) Under regulations prescribed under section 5707 of this title, an
 employee who is engaged on official business for the Government is
 entitled to not in excess of--
    (1) 20 cents a mile for the use of a privately owned motorcycle;
    (2) 25 cents a mile for the use of a privately owned automobile;  or
    (3) 45 cents a mile for the use of a privately owned airplane;
    instead of actual expenses of transportation when that mode of
 transportation is authorized or approved as more advantageous to the
 Government.  A determination of such advantage is not required when
 payment on a mileage basis is limited to the cost of travel by common
 carrier including per diem.  Notwithstanding the preceding provisions of
 this subsection, in any case in which an employee who is engaged on
 official business for the Government chooses to use a privately owned
 vehicle in lieu of a Government vehicle, payment on a mileage basis is
 limited to the cost of travel by a Government vehicle.
    (b) In addition to the mileage allowance authorized under subsection
 (a) of this section, the employee may be reimbursed for--
       (1) parking fees;  (2) ferry fees;  (3) bridge, road, and tunnel
       costs;  and (4) airplane landing and tie-down fees.
    5706. Allowable travel expenses
    Except as otherwise permitted by this subchapter or by statutes
 relating to members of the uniformed services, only actual and necessary
 travel may be allowed to an individual holding employment or appointment
 under the United States.
    5707. Regulations and reports
    (a) The Administrator of General Services shall prescribe regulations
 necessary for the administration of this subchapter, except that the
 Director of the Administrative Office of the United States Courts shall
 prescribe such regulations with respect to official travel by employees
 of the judicial branch of the Government.
                          Relevant Provisions of
                        Federal Travel Regulations
    1-1.3. General rules.
    b. Reimbursable expenses.  Traveling expenses which will be
 reimbursed are confined to those expenses essential to the transacting
 of official business.
    1-1.4. Authorization of travel.
    a. Travel policy.  It is the policy of the Government that agencies
 shall authorize only that travel which is necessary to accomplish the
 purposes of the Government effectively and economically.
    b. Agency responsibilities.
    (1) Except as otherwise provided by law, all travel shall be either
 authorized or approved by the head of the agency or by an official to
 whom such authority has been delegated.  Ordinarily, a travel
 authorization shall be issued before the incurrence of the expenses.
 Agencies shall prescribe procedures for travel situations where it is
 not practical or possible to issue a written authorization in advance.
    (2) Agency heads shall communicate the Government's travel policy
 (see a, above) to all travel authorizing officials at all levels within
 their respective agencies and establish controls to ensure that only
 travel that is essential to the purposes of the Government and for
 accomplishment of the agency's mission is authorized or approved.
    (3) Travel authorizing officials shall authorize or approve only that
 travel necessary to accomplish the agency mission in the most effective
 and economi