22:0522(55)NG - NLRBU and NLRB -- 1986 FLRAdec NG

 22 FLRA No. 55
 
 NATIONAL LABOR RELATIONS BOARD 
 UNION
 Union
 
 and
 
 NATIONAL LABOR RELATIONS BOARD
 Agency
 
                                            Case No. 0-NG-1112
 
                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 three alternative
 proposals presented by the Union involving the payment by the Agency of
 travel and per diem expenses to employees when engaged in
 representational activities.
 
                           II.  Union Proposals
 
                       Alternative Proposal Number 1
 
          During the term of the Agreements, the Agency will pay the
       travel and per diem expenses of NLRBU employee representatives
       participating:  (1) on the Incentive Awards, EEO and Health and
       Safety Committees;  (2) in consultations at the National Level;
       (3) in negotiations at the Local level;  and (4) in mutually
       agreed upon meetings and visits to resolve disputes under Article
       28, Section 3(a), paragraphs 1 and 2.
 
                       Alternative Proposal Number 2
 
          (a) During the term of the Agreements, the participation of the
       NLRBU in the activities of the Incentive Wards, EEO and Health and
       Safety Committees will be considered to be in the primary interest
       of the government by the Agency and the Agency will pay the travel
       and per diem expenses of NLRBU employee representatives serving on
       such committees.
 
          (b) During the term of the Agreements. the payment of the
       travel and per diem expenses of the NLRBU employee representatives
       when they attend consultations (at the National level), engage in
       negotiations at the Local level, or in mutually agreed upon
       meetings and visits to resolve disputes under Article 28, Section
       3(a), paragraphs 1 and 2, will be considered to be in the primary
       interest of the government by the Agency and Agency will pay such
       expenses.
 
                       Alternative Proposal Number 3
 
          (a) During the term of the Agreements, when the Agency
       determines that the participation of the NLRBU in the scheduled
       activities of the Incentive Awards, EEO and Health and Safety
       Committees is in the primary interest of the government, the
       Agency will pay the travel and per diem expenses of NLRBU employee
       representatives serving on such committees.
 
          (b) During the term of the Agreement, when the Agency
       determines that the payment of the travel and per diem expenses of
       NLRBU employee representatives participating in consultations (at
       the National level), engaged in negotiations at the Local level,
       or in mutually agreed upon meetings and visits to resolve disputes
       under Article 28, Section 3(a), paragraphs 1 and 2, is in the
       primary interest of the government, the Agency will pay such
       expenses.
 
                      III.  Positions of the Parties
 
    As explained by the Union, Alternative Number 1 seeks to obligate the
 agency to pay the travel and per diem expenses of field office Union
 employee representatives who by law and agreement are entitled to
 official time under the circumstances described in the proposal.  In
 presenting this Alternative, the Union states that it presupposes the
 negotiability of travel and per diem expenses without regard to the
 "primary interest test." /1/ The Union states further that Alternative
 Number 2 is intended to apply only if Alternative Number 1 is determined
 to be nonnegotiable because a "primary interest test" must be made in
 order for travel and per diem expenses to be paid.  Finally, Alternative
 Number 3 is intended to apply only if Alternative Numbers 1 and 2 are
 determined to be nonnegotiable because a primary interest test must be
 made and such a test is in the sole discretion of the Agency to make.
 
    The Agency contends that all of the Alternatives are nonnegotiable
 because the reimbursement of Federal employees for travel expenses is a
 matter specifically provided for by statute and thus is not a condition
 of employment within the meaning of section 7103(a)(14) of the Statute.
 The Agency also contends that Alternative Number 1 is nonnegotiable
 because it disregards the primary interest test and thus conflicts with
 law and Government-wide rules and regulations, and that Alternative
 Number 2 is nonnegotiable because the determination of primary interest
 cannot be made bilaterally or in advance of actual situations.
 
                               IV.  Analysis
 
    The Union's Alternative Proposals and the positions of the parties in
 this case are identical in effect to those at issue in National Labor
 Relations Board Union and National Labor Relations Board, The Board and
 Office of the General Counsel, 22 FLRA No. 50 (1986), also issued this
 day.  There the Authority determined that all three Alternative
 Proposals concern a condition of employment based on the reasons set
 forth in U.S. Customs Service (see fn. 1).
 
    We also found that conformance with the requirements specified by the
 Comptroller General in administering and interpreting the Travel Expense
 Act is a necessary condition for finding that a proposal involving the
 payment of travel expenses and per diem allowances is negotiable.  See
 U.S. Customs Service.  The Comptroller General has stated that an agency
 is not precluded from making payment of travel expenses and per diem
 allowances to union representatives upon a determination that it serves
 the convenience of the agency or is otherwise in the primary interest of
 the Government.  46 Comp. Gen. 21 (1966).  However, insofar as the Union
 specified that Alternative Number 1 presupposes the negotiability of
 travel and per diem expenses without regard to the "primary interest
 test," the Authority agrees with the Agency's contention that this
 formulation of the proposal conflicts with law and Government-wide
 regulation.
 
    As to the Agency's contention that Alternative Number 2 is
 nonnegotiable because the determination of primary interest cannot be
 made bilaterally or in advance of actual situations, the Authority must
 disagree.  In U.S. Customs Service the Authority specifically found that
 determinations concerning whether to make payments for otherwise proper
 travel expenses and per diem allowances are within the discretionary
 administrative authority of an agency.  Moreover, it is well-established
 that insofar as an agency has discretion regarding a matter affecting
 conditions of employment, it is obligated under the Statute to exercise
 that discretion through negotiations unless precluded by regulatory or
 statutory provisions.  National Treasury Employees Union, Chapter 6 and
 International Revenue Service, New Orleans District, 3 FLRA 747, 759-60
 (1980).  In this case, the Agency has not cited any legal or regulatory
 provision which would absolutely prohibit it from exercising through
 negotiations that discretion which it possesses to determine whether,
 and under what circumstances, travel attendant to labor-management
 relations activities is in the primary interest of the Government.  /2/
 
    While the Authority found in U.S. Customs Service that the
 determination that such payments are in the primary interest of the
 Government is a necessary (and itself bargainable) condition for the
 negotiability of proposals requiring the payment of travel and per diem
 expenses, a primary interest determination is not the only condition for
 finding such proposals negotiable.  As previously mentioned, such
 proposals must also be in conformance with all other applicable
 regulatory and statutory provisions.  In this case the Agency does not
 contend that Alternative Number 2 would conflict with, for example, the
 requirements of the Federal Travel Regulations (FTRs) other than those
 relating to the determination of primary interest, or with any other
 applicable laws or regulations.  The Authority notes that there is
 nothing in alternative Number 2 or the submissions of the parties which
 indicates that its provisions are to be applied in any manner which is
 inconsistent with applicable legal and regulatory requirements.
 Alternative Number 2 would not require the Agency to use, for example,
 specific authorization procedures and practices relating to travel which
 conflicted with the FTRs.  It would not foreclose individual
 determinations regarding the propriety under the FTRs of authorizing
 particular travel and expenses.  Finally, to the extent that
 case-by-case determinations are required under law and regulation, this
 proposal would not be inconsistent with such procedures.  See U.S.
 Customs Service.
 
                              V.  Conclusion
 
    The Authority finds that all three alternative formulations of the
 Union proposal concern a condition of employment.  Alternative Number 1
 conflicts with law and Government-wide regulation, and, therefore, is
 outside the duty to bargain.  Alternative Number 2 is within the
 Agency's administrative discretion, and is not inconsistent with law or
 Government-wide regulations.  /3/ Therefore, it is within the duty to
 bargain.  /4/
 
                                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 Alternative
 Proposal Number 2.  Furthermore, IT IS ORDERED that the Union's petition
 for review as to Union Alternative Proposals 1 and 3 be, and it hereby
 is, dismissed.
 
    Issued, Washington, D.C., July 11, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The "primary interest test" refers to the Comptroller General's
 decision, 46 Comp. Gen. 21 (1966), interpreting the provisions of the
 Travel Expense Act, 5 U.S.C. Sections 5701, et seq., that an agency is
 not precluded from making payment of travel expenses and per diem
 allowances to union representatives upon a determination that it serves
 the convenience of the agency or is otherwise in the primary interest of
 the Government.  For a complete discussion of the issue of the
 negotiability of the payment of travel and per diem expenses, see the
 Authority's lead decision, 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. March 27, 1986).
 
    (2) We do not read the Comptroller General decision in 46 Comp. Gen.
 21 (1966) as requiring that the primary interest determination can only
 be made on a case-by-case basis.  Rather, an agency may in the context
 of collective bargaining determine in advance that certain
 representational activity is within the primary interest of the
 Government.
 
    (3) Here, as in National Labor Relations Board, The Board and Office
 of the General Counsel, the Authority finds it unnecessary to address
 further the negotiability of Alternative Number 3 given the result that
 Alternative Number 2 is negotiable.
 
    (4) In finding alternative Number 2 within the duty to bargain the
 Authority makes no judgement as to its merits.