21:0761(95)NG - NTEU and IRS -- 1986 FLRAdec NG
[ v21 p761 ]
The decision of the Authority follows:
21 FLRA No. 95 NATIONAL TREASURY EMPLOYEES UNION Union and INTERNAL REVENUE SERVICE Agency Case No. 0-NG-1111 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case The petition for review in this case comes before the Authority because of a negotiability 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 two proposals. II. Proposals Union Proposal 1 Article X Mid-Term Agreements, Section 3-A5 - Those receiving official time pursuant to (d) above will receive reasonable travel and per diem expenses to attend those negotiations. Union Proposal 2 Article 6 Stewards, Section 2H - When a grievant, appellant or employee is authorized official time and expenses to travel to any of the above, one union representative will also receive time and expenses to travel as long as he/she is the designated representative in the matter. (Only the underlined portion of the proposal is in dispute.) III. Positions of the Parties As explained by the Union, the proposals are not intended to conflict with any applicable law or regulation. The Union's position is that the proposal's "reasonable" standard allows for all relevant factors case law, regulations and other appropriate factors -- to be considered in determining what is or is not reasonable. Indeed, the Union states that the Agency could deny payment of travel expenses where reimbursement for a particular event is barred by law or regulation, where there is no nexus to government interests or when it is not in the best interest of the government. The Agency contends that the proposal is 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; and b. they are inconsistent with Federal law or Government-wide regulation. IV. Analysis A. "Conditions of Employment" The Agency involved in this case makes essentially the same "conditions of employment" argument 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 and it is rejected here for the same reasons set forth in that case. Representation of employees in matters concerning their employment affects the working conditions of those employees. A proposal seeking payment of travel expenses incurred because of such representational activity clearly involves a condition of employment not excepted from the definition thereof. 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, a proposal concerning such payment is not precluded as involving a matter specifically provided for by Federal statute so as to be excepted from the definition of conditions of employment. B. Inconsistent with Federal law or Government-wide rules or regulations The Agency contends, in essence, that under the Travel Expense Act, 5 U.S.C. Sections 5701, et seq. and the Federal Travel Regulations (FTRs), 41 CFR, Part 101-7, 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. For reasons set forth in its decision in Customs Service, the Authority has found that agencies have discretion, under the Travel Expense Act and implementing regulations, 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 and, hence, to pay for resulting appropriate expenses from Federal funds. The exercise of that discretion is subject to the negotiations process. The Agency here makes no specific argument that the proposals do not meet the statutory and regulatory standards discussed in Customs Service. Moreover, as noted in the Union's Position, the proposals envision case by case determinations as to 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 contention that the proposals are inconsistent with law and Government-wide regulations must be rejected. V. Conclusion Based on the foregoing analysis, the Authority finds that the proposals concern a condition of employment which is within the Agency's administrative discretion, and they are not inconsistent with law or Government-wide regulation. Therefore, they are within the duty to bargain. /*/ VI. 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 Union Proposals 1 and 2. Issued, Washington, D.C., May 12, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In finding these proposals within the duty to bargain, the Authority makes no judgment as to their merits.