U.S. Federal Labor Relations Authority

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21:0575(73)NG - AFGE, Council 214 and Air Force, AFLC, Wright-Patterson AFB, Ohio -- 1986 FLRAdec NG

[ v21 p575 ]
The decision of the Authority follows:

 21 FLRA No. 73
                                            Case No. 0-NG-786
                         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
          (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
          (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
                                 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
 (*) In finding this portion of the proposal within the duty to bargain
 the Authority makes no judgment as to its merits.