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23:0010(3)NG - National Joint Council of Food Inspection Locals, AFGE and Food Safety and Inspection Service, Agriculture -- 1986 FLRAdec NG

[ v23 p10 ]
The decision of the Authority follows:

 23 FLRA No. 3
                                            Case No. 0-NG-1061
                         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 concerns the
 negotiability of six provisions on travel and per diem.  /1/ The Agency
 head disapproved the provisions in reviewing a negotiated agreement
 under section 7114(c) of the Statute.  The disapproval was limited to
 those aspects of the provisions which would allow payment of travel and
 per diem expenses for employee representatives.  The disputed provisions
                               (Provision 1)
                      Section A -- Representatives:
          The Chairman of the Council, the Presidents of the Regional
       Councils, the Presidents of affiliated Locals and designated plant
       representative or their designees are recognized as Union
       representatives at their respective organizational levels within
       the Service . . .  Similarly, the Local President(s) will
       designate to the appropriate area office one (1) plant
       representative for each plant having an assigned supervisor who
       will be expected to deal with the Service supervisor of that plant
       on day-to-day matters covered by this Agreement or applicable
       regional agreements.  There will be no restriction upon the Local
       President with respect to whom he/she appoints as a plant
       representative.  However, if a Local President appoints an
       individual who is located over twenty-five (25) miles from the
       plant to which he/she was appointed to serve as a plant
       representative, the entitlement to official time and expense shall
       be restricted to that which he/she would normally have received
       had he/she been located within the twenty-five (25) mile radius.
                               (Provision 2)
                     Section C -- Official Expenses:
          Per diem and travel expenses at official rates shall be paid
       Union representatives to attend meetings, and official
       proceedings, and to present grievances pursuant to paragraphs
       1(a), (b), and (c) of Section B.
          However, per diem and travel expenses not to exceed $150 shall
       be paid representatives to attend an oral conference pursuant to
       paragraph 1(c) of Section B.
                               (Provision 3)
                     ARTICLE XIII -- HEALTH AND SAFETY
                         Section J -- Duty Time:
          Each Union representative serving on a Health and Safety
       Committee shall be afforded official time to engaged in such
       tasks.  If such tasks involve travel, official travel allowances
       will be paid.
                               (Provision 4)
                         Section D -- Procedures:
          Disciplinary Actions shall be initiated and processed in
       accordance with applicable regulations.  Grievances over
       disciplinary action decisions shall be processed in accordance
       with the provisions of Article XXXII, and of Article XXXIII if
       arbitration is invoked.  It is further agreed by the Parties that:
                       * * * * * * *
          If the employee is not represented by the Union, the Union
       shall have the right to have an observer present at the oral
       conference, subject to a contrary determination by an oral
       conference officer when the employee objects on the grounds of
          The Union observer shall be on official time and expenses for
       attendance at the meeting up to twelve (12) hours and $150.  The
       Union shall be notified sufficiently in advance of the oral
       conference to permit attendance.
                               (Provision 5)
                     Section E -- Role of the Union:
          The Union shall be recognized as the representative of the
       aggrieved employee(s) unless such employee(s) wishes to personally
       handle the grievance and so informs the official to whom the
       grievance is being presented.  No employee representative other
       than the Union will be recognized under these procedures.
          If any employee presents a grievance on his/her own behalf, the
       Union shall have the right to have a representative present during
       the grievance proceeding on official time and expense.
                               (Provision 6)
                       ARTICLE XXXIII -- ARBITRATION
                    Section B -- Arbitration Hearing:
          1.  The arbitration hearing will be held on Service premises or
       premises furnished by the Service during the regular day-shift
       hours of the basic workweek.  The grievant(s), his/her Union
       representative and up to four (4) witnesses shall be allowed
       official time and expenses for the proceedings.  All other
       witnesses deemed necessary by the arbitrator will be allowed
       official time for the proceedings.
                       II.  Positions of the Parties
    The Agency states that although the negotiated agreement was executed
 after the Supreme Court's decision in Bureau of Alcohol, Tobacco and
 Firearms v. FLRA, 464 U.S. 89 (1983), the disapproved language was
 agreed to prior to that decision.  It asserts that the disputed portions
 of the provisions are not within the duty to bargain for the following
          a.  They do not concern conditions of employement within the
       meaning of section 7103(a)(14) of the Statute because payment of
       travel expenses is specifically provided for by law;
          b.  they are inconsistent with Federal law and Government-wide
       regulation;  and
          c.  they conflict with an Agency regulation for which a
       compelling need exists.
    The Union asserts that the provisions represent negotiation of a
 condition of employment about which the Agency has discretion, that is,
 whether to allow travel and per diem for travel occurring in the context
 of union representational activities.  It contends that the Agency has
 not established a compelling need for Personnel Letter 711-10, the
 agency regulation which is claimed to bar negotiations.
                              III.  Analysis
           A.  The Provisions Relate to Conditions of Employment
    The Agency makes essentially the same "conditions of employment"
 argument as that made by the agency 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. March 27, 1986).
 The Authority rejected that argument in Customs Service and we reject it
 here for the same reasons as set forth in that case.
        B.  The Provisions Are Not Inconsistent with Federal Law or
                Government-Wide Rules or Regulations
    Under the Travel Expense Act, 5 U.S.C. Sections 5701 et seq., and the
 Federal Travel Regulations (FTRs), 41 CFR, Part 101-7, as interpreted by
 the Comptroller General, /2/ agencies possess discretion to make
 determinations that travel in the context of union activity is
 sufficiently within the interest of the Government to constitute
 official business.  Upon this determination, otherwise proper travel and
 per diem expenses may be paid from agency funds.  Contrary to the
 Agency's argument, nothing in these authorities requires that this
 necessary determination be made only by management and only on a case by
 case basis.  Customs Service, 21 FLRA No. 2.  The Agency here makes no
 argument that travel flowing from the particular types of activities and
 circumstances set forth in the provisions could not meet this required
 standard.  /3/ Additionally, nothing in the provisions themselves or the
 parties' arguments suggests that these provisions would foreclose case
 by case determinations as to the appropriateness of specific travel and
 expenses which are proper under law and governing regulations.  Given
 these circumstances, and for the reasons expressed in Customs Service,
 we reject the Agency's assertion that the provisions are inconsistent
 with law and Government-wide regulations.
             C.  The Provisions Do Not Conflict with an Agency
                Regulation for Which a Compelling Need Exists
    The Agency argues, without further explanation, that these provisions
 conflict with Personnel Letter 711-10 -- an agency regulation which
 meets the criteria for compelling need under section 2424.11(c) of the
 Authority's Rules and Regulations.  The Agency has made a similar
 argument in various other negotiability appeals before us.  We have
 consistently found that the Agency failed to establish a compelling need
 for that regulation.  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);  American Federation of Government Employees, Council of Meat
 Grading Locals, AFL-CIO and Department of Agriculture, Agricultural
 Marketing Service, Meat Grading and Certification Branch, 22 FLRA No. 38
 (1986), and National Association of Agricultural Employees and U.S.
 Department of Agriculture, Animal and Plant Health Inspection Service,
 22 FLRA No. 45 (1986).  There is no basis here for concluding
                              IV.  Conclusion
    Based on the foregoing analysis, the Authority finds that the
 provisions concern conditions of employment and are not inconsistent
 with law or Government-wide regulation.  The provisions are not barred
 from negotiations because they are inconsistent with an Agency
 regulation for which a compelling need exists.  Therefore, they are
 within the duty to bargain.  /4/
                                 V.  Order
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall rescind its disapproval
 of Provisions 1 through 6 which were bargained on and agreed to by the
 parties at the local level.
    Issued, Washington, D.C., August 6, 1986.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) The petition originally included four additional provisions on
 other subjects.  The Union has since withdrawn its petition as to those
 four provisions.
    (2) 46 Comp. Gen. 21 (1966).
    (3) Of course, if such a question should arise, the parties have
 access to their negotiated grievance procedure as a means of resolving
 the issue.
    (4) In finding that these provisions are within the duty to bargain,
 we make no judgment as to their merits.