[ v21 p575 ]
The decision of the Authority follows:
21 FLRA No. 73 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL 214 Union and DEPARTMENT OF THE AIR FORCE, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO Agency Case No. 0-NG-786 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)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It raises issues concerning the negotiability of the following Union proposal. This dispute arose while the parties were bargaining over ground rules in preparation for contract negotiations. UNION PROPOSAL Proposal 2(a). The employer agrees to provide official time, and to pay per diem and constructive travel costs in accordance with the Joint Travel Regulations and Civil Service Reform Act for up to ten (10) union negotiating team members as follows: (1) For five (5) calendar days at dates designated by The Union at Wright-Patterson Air Force Base to prepare proposals, counterproposals, etc., prior to the start of across-the-table negotiations. (2) For an initial across-the-table bargaining session of up to four (4) weeks. If bargaining is not completed within that time, the negotiating period will be extended by mutual consent, or a second bargaining period will be established. (3) for any additional sessions by the Federal Mediation and Conciliation Service or the Federal Service Impasses Panel. (The underscored portion is in dispute.) II. Position of the Parties The parties' arguments focus on the issues of whether additional official time can be negotiated over and above that to which union negotiators are entitled under the Statute and whether travel and per diem expenses are within the duty to bargain. Under Section 7131(a)of the Statute, the number of employees entitled to official time while participating on the Union negotiating team would be limited to the same number as the management team. The Union proposal here seeks negotiated official time, as well as travel and per diem, for up to ten Union negotiating team members because the Agency had expressed its intent to limit its management negotiating team to three or less members. The Union asserts that official time for Union team members, over and above that to which there is an entitlement under Section 7131(a), is negotiable under Section 7131(d). The Union specifically says it does not intend its proposal to affect the size of the management negotiating team. The Union argues that the negotiation of travel and per diem expenses is a condition of employment and that the proposal is not inconsistent with the Travel Expense Act as interpreted by the Comptroller General. The Agency contends that the parties have entered into a ground rules agreement through the Mediation/Arbitration process. It argues that this agreement has effectively resolved the parties' dispute over the subjects of official time and travel and per diem. Because there is no longer an outstanding dispute over these issues, it contends that the petition is moot and moves that it be dismissed. As to the merits of the proposal, the Agency argues that negotiation of official time for Union negotiators over and above that provided in section 7131(a) of the Statute conflicts with section 7131 of the Statute. It also asserts that the proposal effectively seeks to determine the numerical size of the Agency negotiating team and is nonnegotiable for that reason as well. With respect to travel and per diem, the Agency asserts that it is not a condition of employment within the meaning of the Statute because payment of travel expenses is specifically provided for by law. It also asserts that Congress did not intend to require agencies to pay travel and per diem expenses of employees representing a union in collective bargaining and that whatever discretion agencies may possess under the Travel Expense Act to do so cannot appropriately be exercised through negotiation. III Analysis a. Question of Mootness As noted earlier this proposal was presented during ground rules negotiations between the parties. Having reached an impasse in those negotiations, and based on a recommendation by the Federal Service Impasses Panel (FSIP), the parties submitted their ground rules dispute to Mediation/Arbitration. The Mediator/Arbitrator held that the issue of official time for additional union negotiators was nonnegotiable and that the Union negotiators were strictly limited to the amount of official time provided pursuant to section 7131(a) of the Statute.The Mediator/Arbitrator therefore held that under the Statute the parties could not negotiate over official time for Union negotiating team members who exceeded the number of Agency team members. The Mediator/Arbitrator directed the parties to choose between alternative dispositions of their travel and per diem dispute. The alternatives were: (1) Negotiations would be held at Wright-Patterson Air Force Base, Ohio -- the Agency's preferred location -- with the Agency paying certain specified travel costs for up to seven Union negotiating team members; (2) Negotiations would be held at Tinker Air Force Base, Oklahoma -- the Union's preferred location with each side bearing the travel expenses for its own team. The record indicates that the parties agreed to the second alternative and that contract negotiations were held at Tinker Air Force Base. Since the parties reached agreement as to the site of negotiations and since that agreement was coupled with an agreement on payment of travel expenses, the Authority finds that there is no longer an outstanding issue as to whether travel and per diem is within the parties' duty to bargain under the Statute. A valid, binding agreement disposing of this aspect of the proposal has been reached by the parties. Therefore, this portion of the petition is moot. See Federal Employees Metal Trades Council, AFL-CIO, and Department of the Navy, Mare Island Naval Shipyard, 7 FLRA 701 (1982). The Authority wishes to point out that it has recently found a proposal which would require payment by an agency of the travel expenses of union representatives using official time to be within the duty to bargain. National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986). That case, in the Authority's view, addresses arguments similar to those which the parties in this case raise as to the merits of the question of the negotiability of travel and per diem. However, in view of the parties' agreement as to the site of negotiations and the payment of travel expenses, no order to bargain is appropriate or warranted here. With respect to that portion of the petition concerning the negotiation of additional official time for Union negotiators, the Mediator/Arbitrator's aware was based on her determination that official time for additional Union negotiators was nonnegotiable. The merits of the Union's proposal were never considered nor was any agreement reached with respect to this issue. Therefore, the Authority does not consider this aspect of the petition moot. B. Official Time Issue The Union has specifically stated that the proposal is not intended to prescribe the number of members on the Agency's negotiating team. This interpretation comports with the plain language of the proposal. The Agency's contention that the proposal effectively dictates the size of its team is rejected. The Authority has previously held that, under section 7131(d) of the Statute, a proposal seeking more union negotiators than the number designated by management and official time for those additional negotiators is within the duty to bargain. American Federation of Government Employees, AFL-CIO and U.S. Environmental Protection Agency, 15 FLRA 461 (1984) (Union Proposal 2). The Authority finds that the official time provisions of this Union Proposal are within the duty to bargain for the reasons set forth in that case. The parties' arguments do not specifically address the aspect of the proposal involving the types of activities for which official time will be authorized. However, we note that under Section 7131(a) employees representing unions in negotiation of a collective bargaining agreement are entitled to official time for such purposes as attendance at impasse proceedings. Additionally, the Authority has previously found that under Section 7131(d) official time for union representatives to prepare for negotiations, impasse resolution and counterproposals is a negotiable matter. Federal Uniformed Firefighters, Local F-159 and U.S. Army Armament Research & Development Command, Dover, New Jersey, 3 FLRA 317 (1981). IV. Conclusion The Authority finds that, because the parties have reached an agreement on the travel and per diem issue, the Union's petition as to this issue is moot. However, as far as the issue of official time for additional Union negotiators is concerned, the petition has not been rendered moot. The Authority finds that this aspect of the Union Proposal is within the duty to bargain under Section 7131(d) 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 that portion of the proposal which relates to authorizing official time for Union negotiating team members. /*/ IT IS FURTHER ORDERED that that portion of the petition which relates to per diem and travel costs be, and it hereby is, dismissed. Issued, Washington, D.C. April 30, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier, III, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES (*) In finding this portion of the proposal within the duty to bargain the Authority makes no judgment as to its merits.