[ v21 p112 ]
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.