22:0451(45)NG - NAAE and DOA, Animal And Plant Health Inspection Service -- 1986 FLRAdec NG

 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.