21:0112(21)NG - AFGE, National Council of Federal Grain Inspection Locals and DOA,FGIS -- 1986 FLRAdec NG
[ v21 p112 ]
21:0112(21)NG
The decision of the Authority follows:
21 FLRA No. 21
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
NATIONAL COUNCIL OF FEDERAL
GRAIN INSPECTION LOCALS
Union
and
U.S. DEPARTMENT OF AGRICULTURE,
FEDERAL GRAIN INSPECTION SERVICE
Agency
Case No. 0-NG-1034
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
The petition for review in this case is before the Authority because
of an appeal filed under section 7105(a)(2)(D) and (E) of the Federal
Service Labor-Management Relations Statute (the Statute). It raises
issues concerning the negotiability of the underlined portions of the
following provisions of a negotiated agreement disapproved by the Agency
head under section 7114(c) of the Statute.
Provision 1
ARTICLE 7 REPRESENTATION
Section 1. The parties acknowledge the right of bargaining unit
members at all locations to have access to Union representation.
The following sections provide the procedures for representation
activities on official time other than bargaining and for the
payment of travel expenses for Area Representatives meeting the
criteria established in this Article. Employees will contact the
Union representative nearest the employee's location unless the
representative is not available. In that case, the Area
Representative may be contacted. Provision 2
Statement 3(B)
If travel is necessary, Area Representatives may request a
reasonable amount of official time for representation duties from
their supervisor. The request shall include the general nature of
the representational duty, the names and location of the
employee(s) involved, and the estimated time required. The
requested time shall be approved unless the current work needs of
the Agency cannot be met, in which case mutually agreeable
arrangements will be made to approve the request as soon as
possible. Each Union representative or unit employee authorized
to be on official time for the representational activity shall
record the item involved in the remarks section of their time card
or similar document. Seventy-five hundred dollars ($7500) of
travel expenses for representation duties shall be provided in
accordance with applicable law and Government-wide regulations,
provided that no more than $5,000 of the allocation may be
expended during the first two years. Travel expenses necessary
for a representative to present a case at an Arbitration or MSPB
proceeding shall not be deducted from the allocation. In
addition, travel expenses for participation in FLRA proceedings
shall be authorized in accordance with 5 CFR 2429.13. Provision 3
ARTICLE 14 ARBITRATION
Section 4.
Official time shall be granted to bargaining unit employees acting
as the representative for employees or the Union. Official time
shall be granted to bargaining unit employees who testify as
witnesses. Official time for witnesses shall be limited to the
time needed to travel to and from the proceeding and testify.
Official time, transportation costs, and per diem shall be
provided by the Employer for Union representatives within the area
involved and all witnesses deemed necessary by mutual agreement of
the Parties. If the Parties cannot agree that a witness is
necessary, the matter shall be submitted to the arbitrator, whose
decision shall be final and binding. Witnesses determined to be
necessary by the arbitrator shall be compensated pursuant to that
expressed above. Travel time and expenses and official time are
not authorized for expert advisors or observers.
II. Positions of the Parties
As explained by the Union, the provisions are not intended to
conflict with any applicable law or regulation. Rather, they are
limited to establishing the circumstances under which travel occurring
in the context of union activities will be construed to be in the
primary interest of the Government and, hence, official business for
purposes of payment of incidental and otherwise proper travel expenses.
The Union states that under the provisions the Agency can grant or deny
requests for actual travel. Thus, the Agency retains the ability to
make appropriate case by case determinations regarding specific travel
and/or expenses.
The Agency contends that the provisions are not within the duty to
bargain for the following reasons:
a. They do 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. they are inconsistent with Federal law and Government-wide
regulation; and
c. they conflict with an agency regulation for which a compelling
need exists.
III. Analysis
A. "Conditions of Employment"
The Agency involved in this case makes essentially the same
"conditions of employment" argument as that made by the agency in
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 21 FLRA No. 2 (1986). The Authority rejected that
argument in Customs Service. It is rejected here for the same reasons
as set forth in that case.
B. Inconsistent with Federal Law or Government-Wide Rules or
Regulations
The Agency asserts that under the Travel Expense Act, 5 U.S.C. 5701
et seq., and the Federal Travel Regulations (FTRs), 41 CFR, Part 101-7,
as interpreted by the Comptroller General, determinations that travel
expenses incurred in the context of union activity are in the primary
interest of the Government and that ensuing expenses are payable from
agency funds must be made by management alone on a case by case basis.
In Customs Service, the Authority found that agencies have
discretion, under the Travel Expense Act and implementing regulations,
to determine whether and under what circumstances travel related to
labor-management relations activities is sufficiently within the
interest of the United States so as to constitute official business for
which employees may receive appropriate expenses from Federal funds.
The exercise of that discretion was held to be subject to the
negotiation process. The Agency here makes no specific argument that
the provisions here concerning the circumstances under which otherwise
appropriate travel expenses would be payable do not meet the statutory
and regulatory standards discussed in Customs Service. Moreover, the
provisions do not preclude case by case determinations as to the
appropriateness of specific travel and expenses which are necessary and
proper under law and governing regulation. Given these circumstances,
and for the reasons expressed in Customs Service, the Agency's assertion
that the provisions are inconsistent with law and Government-wide
regulations must be rejected.
C. Inconsistent with an Agency Regulation for which a Compelling Need
Exists
The Agency regulation upon which the Agency relies was issued by the
Department of Agriculture and purports to establish procedures for the
payment of travel and per diem expenses to union representatives when
official time has been granted under section 7131(a) and (d) of the
Statute. The regulation provides that determinations on whether to pay
travel and per diem may be made only on a case by case basis and solely
by management. The Agency argues that the regulation is essential to
comply with the Travel Expense Act and implementing regulations. In
Customs Service the Authority has found that neither the Travel Expense
Act nor the Federal travel Regulations require that determinations as to
whether travel related to labor-management relations activities is
primarily in the interest of the United States be made unilaterally by
management and only on a case by case basis. Therefore there is no
support for the Agency's contention that its regulation is essential to
compliance with the Travel Expense Act and implementing regulations.
The Agency's argument that a compelling need exists for its regulation
is rejected.
IV. Conclusion
Based of the foregoing analysis, the Authority finds that the
provisions concern a condition of employment and are not inconsistent
with law or Government-wide regulation. Nor are the provisions barred
from negotiations because they are inconsistent with an agency
regulation for which a compelling need exists. Therefore, they are
within the duty to bargain. /1/
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall rescind its disapproval
of Provisions 1, 2 and 3 which were bargained on and agreed to by the
parties at the local level.
Issued, Washington, D.C., March 25, 1986
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In finding these provisions within the duty to bargain the
Authority makes no judgment as to their merits.