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22:0451(45)NG
The decision of the Authority follows:
22 FLRA No. 45
NATIONAL ASSOCIATION OF
AGRICULTURAL EMPLOYEES
Union
and
U.S. DEPARTMENT OF AGRICULTURE,
ANIMAL AND PLANT HEALTH INSPECTION
SERVICE
Agency
Case No. 0-NG-1028
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute). It raises issues
concerning the negotiability of two Union proposals. The Union
presented these two proposals in response to the issuance of an Agency
regulation which set forth procedures regarding the payment of travel
and per diem expenses to employee union representatives. Among other
things, the Agency regulation, issued in reaction to the Supreme Court's
decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
(1983) (BATF), declared unenforceable any labor agreements providing for
the payment of travel and per diem expenses to union representatives.
II. Union Proposals
(Union Proposal 1)
NAAE requests to bargain to the full extent allowed by law,
rule and regulation on Personnel Letter No. 711-10, payment of
travel and per diem expenses for employees representing labor
organizations.
(Union Proposal 2)
In regard to NAAE's request to bargain on Personnel Letter No.
711-10, NAAE's initial proposal is that PPQ honor the letter and
intent of the alleged current collective bargaining agreement
provisions concerning payment of travel and per diem expenses for
employees representing labor organizations until a new collective
bargaining agreement is negotiated.
III. Positions of the Parties
The Union states that Union Proposal 1 is intended to request
bargaining to the extent legally permissable over what it contends was
the Agency's proposed change in the past practice of paying travel and
per diem expenses for employee union representatives. Union Proposal 2
seeks to continue the past practice, as embodied in a collective
bargaining agreement negotiated prior to the BATF decision, with respect
to payment of travel and per diem. The Union describes this practice as
recognizing an automatic right to travel and per diem for employee union
representatives attending "official meetings."
Prior to 1981 the Union's name was Federal Plant Quarantine
Inspectors' National Association (FPQINA). The Agency asserts that the
Union has never filed a petition to change the name on its unit
recognition or certification to reflect the 1981 change. Because there
is no certification showing the Union, as currently named, as exclusive
representative of the bargaining unit involved, the Agency argues that
the Union lacks standing to file the petition in this case.
As to the merits of the proposals, the Agency contends that both lack
sufficient specificity to comply with the conditions for review of
negotiability issues which are set forth in the Statute and the
Authority's Rules and Regulations. It also argues that both proposals
conflict with an Agency regulation for which a compelling need exists.
As to Proposal 2, the Agency argues that the contract provisions which
the proposal seeks to continue are inconsistent with the Supreme Court's
decision in BATF and, therefore, unenforceable. It contends that they
are also inconsistent with the Travel Expense Act, the Federal Travel
Regulations and a Comptroller General's decision, 46 Comp. Gen. 21
(1966), which limits payment of travel and per diem to employee union
representatives to those situations where it has been determined that
their travel is in the primary interest of the Government. The Agency
asserts that this necessary determination can only be made on a case by
case basis and unilaterally by management. The Agency also contends
that travel and per diem is a matter specifically provided for by
Federal statute and, consequently, is not a condition of employment
under the Statute.
The Union did not file a response to the Agency's statement of
position.
IV. Procedural Issues
A. Legal Standing of the Union
As to the Agency's argument that the Union's name does not correspond
to that listed to the documents relating to its recognition as exclusive
representative for the bargaining unit involved, the Authority finds
that such a question should more appropriately be raised through
representation procedures rather than negotiability procedures.
Therefore, in this decision the Authority decides only the negotiability
issues raised under section 7105(a)(2)(D) and (E) of the Statute. If it
wishes, the Agency may pursue whatever question it has about the Union's
status as exclusive representative by filing an appropriate
representation petition. See American Federation of Government
Employees, AFL-CIO, Local 2736 and Department of the Air Force,
Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base,
Michigan, 14 FLRA 302 at 306, n. 6 (1984).
B. Lack of Specificity
Union Proposal 1 is nothing more than a general request to bargain
over the Agency's Personnel Letter which articulated its policy
concerning payment of travel and per diem to employee union
representatives. This proposal is not sufficiently specific and
delimited and does not meet the conditions for review set forth in
section 2424.1 of the Authority's Rules and Regulations. American
Federation of Government Employees, AFL-CIO, Local 3525 and United
States Department of Justice, Board of Immigration Appeals, 10 FLRA 61
(1982) (Union Proposals 2-4). However, the Authority would like to note
that it has previously rejected the Agency's argument that its Personnel
Letter is not subject to bargaining because it is an agency-wide
regulation for which a compelling need exists. The argmuents presented
in this case are identical to those presented in American Federation of
Government Employees, AFL-CIO, National Council of Federal Grain
Inspection Locals and U.S. Department of Agriculture, Federal Grain
Inspection Service, 21 FLRA No. 21 (1986) petition for review filed sub
nom. Department of Agriculture, Federal Grain Inspection Service v.
FLRA, No. 86-1295 (D.C. Cir. May 21, 1986). The Agency's argument is
rejected in this case for the same reasons that it was rejected in that
case.
Union Proposal 2 is distinguishable from Union Proposal 1 in that it
is sufficiently specific and delimited to meet the statutory and
regulatory conditions for review. As contrasted with a general request
for bargaining, it specifically proposes the continuation of previous
practices as provided in the parties' agreement instead of the adoption
of the new practices set forth in the Agency's Personnel Letter. The
Agency's assertion that Union Proposal 2 is procedurally deficient is
rejected. See National Federation of Federal Employees, Local 1363 and
Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA 68 (1980),
remanded as to other matters sub nom. Department of Defense, Department
of the Army v. FLRA, 685 F.2d 641 (D.C. Cir. 1982).
V. Analysis and Conclusions as to Union Proposal 2
A. Conditions of Employment
In National Treasury Employees Union and Department of the Treasury,
U.S. Customs Service, 21 FLRA No. 2 (1986), petition for review filed
sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No.
86-1198 (D.C. Cir. Mar. 27, 1986), the Authority rejected the same
argument as that made here, namely, that a proposal relating to travel
and per diem for employee union representatives did not concern
conditions of employment. For the reasons expressed in that decision,
the Authority finds that Union Proposal 2 does concern a condition of
employment.
B. Inconsistent with Federal Law and Government-wide Rules
and Regulations
As interpreted by the Comptroller General, /1/ the Travel Expense Act
and Federal Travel Regulations (FTRs) allow payment of otherwise proper
travel and per diem expenses to employee union representatives when it
has been determined that they have been incurred primarily in the
interest of the Government. In Customs Service the Authority, noting
that this determination was within the agency's discretion, found a
proposal which effectively sought to negotiate over the exercise of that
discretion within the duty to bargain. Contrary to the Agency's
argument, the Authority finds that nothing in the Travel Expense Act,
the FTRs or the Comptroller General's decision requires that this
necessary determination be made only by management and only on a case by
case basis. See Customs Service. However, the determination must be
made in order for travel expenses to be paid from agency funds. Unlike
the circumstances in Customs Service, where the union expressly stated
that it was seeking to negotiate over this determination, there is
nothing in the record of this case to show that Union Proposal 2 would
allow for this determination to be made as a prerequisite to payment of
any travel and per diem for travel relating to union activities.
Rather, as described by the Union, this proposal appears to require
payment of travel and per diem without regard to whether the statutory
and regulatory requirements for payment, discussed in Customs Service,
have been met. /2/ Because the Authority cannot conclude that Union
Proposal 2 would allow for compliance with the requirements of the
Travel Expense Act and the FTRs, it finds the proposal is not consistent
with Federal law and Government-wide rule or regulation. /3/ It,
therefore, is not within the duty to bargain.
VI. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulation, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed.
Issued, Washington, D.C., July 9, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) 46 Comp. Gen. 21 (1966).
(2) As noted in Customs Service, for a travel and per diem proposal
to be found negotiable, it must also allow for compliance with the
various other requirements of the Travel Expense Act and FTRs as well as
the primary interest of the Government determination.
(3) The FTRs are a Government-wide rule or regulation. Customs
Service, n. 2.