U.S. Federal Labor Relations Authority

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21:1101(126)NG - NTEU and Dept. of the Treasury, IRS -- 1986 FLRAdec NG

[ v21 p1101 ]
The decision of the Authority follows:

 21 FLRA No. 126
                                             Case No. 0-NG-1013
                         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 a single Union
                            II.  Union Proposal
          The employer will pay travel and per diem for all union
       employee negotiators.
                       A.  Positions of the Parties
    The Agency contends that the proposal is not within the duty to
 bargain for the following reasons:
          1.  It does 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;
          2.  it is inconsistent with Federal law and Government-wide
       regulation;  and
          3.  the demand for travel and per diem to employee/negotiators
       is not limited to those employee/negotiators who are receiving
       official time.
    In its response, the Union states that the proposal "must conform to
 the Travel Act -- a point we do not contest . . . ." See Union Response
 at page 4.  Finally, the Union maintains that its proposal is intended
 to provide travel and per diem reimbursement only to unit employees
 authorized to be at the bargaining table on official time.
                               B.  Analysis
                      1.  "Conditions of Employment"
    The Agency makes an essentially identical "conditions of employment"
 argument to that made by the agency in National Treasury Employees Union
 and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2
 (1986) appeal docketed sub nom. Department of Treasury, U.S. Customs
 Service v. FLRA, Case No. 86-1198 (D.C. Cir. March 27, 1986).  The
 Authority rejected that argument in Customs Service and it is rejected
 here for the same reasons set forth in that case.
        2.  Inconsistent with Federal Law and Goverment-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 our 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 was held to be subject to the negotiation process.  The
 Agency here makes no specific argument that the proposal does not meet
 the statutory and regulatory standards discussed in Customs Service.
 There is no indication in the record that the Union intends the proposal
 to be applied contrary to the Federal Travel Regulations.  On the
 contrary, we note that the Union's Response indicates that the proposal
 is to be read to be in conformity with the Travel Act.  Given these
 circumstances, and for the reasons fully expressed in Customs Service,
 the Agency's assertion that the proposal is inconsistent with law and
 Government-wide regulations must be rejected.
        3.  Limited to Those Employee/Negotiators Who Are Receiving
                Official Time
    The Agency contends that the proposal would entitle
 employee/negotiators who are not receiving official time to travel and
 per diem.  However, in our view the proposal does not necessarily
 require payment of travel and per diem to those employee/negotiators who
 are not receiving official time.  Indeed, the Union, as previously
 noted, interprets the proposal to limit travel and per diem
 reimbursement to only unit employees authorized to be at the bargaining
 table on official time.  We adopt the Union's interpretation of its
 proposal for purposes of our decision noting, in any event, that nothing
 in our analysis in Customs Service indicates that travel and per diem
 payments depend upon a contemporaneous grant of official time under
 section 7131.  Instead, the negotiability of travel and per diem is
 based on consideration of whether the travel involved is in the primary
 interest of the Government so as to constitute "official business".
 Consequently, we find the Agency's contention not to be supported.
                              C.  Conclusion
    Based on the foregoing analysis, the Authority finds that the
 proposal concerns a condition of employment which is not inconsistent
 with law or Government-wide regulation.  Therefore, the proposal is
 within the duty to bargain.  /*/
                                III.  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 the Union
    Issued, Washington, D.C., May 30, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (*) In deciding that the proposal is negotiable, the Authority makes
 no judgment as to its merits.