[ v23 p160 ]
The decision of the Authority follows:
23 FLRA No. 20 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3748 Union and U.S. DEPARTMENT OF AGRICULTURE, AGRICULTURAL RESEARCH SERVICE, NORTHERN STATES AREA Agency Case No. O-NG-1101 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is 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) and concerns the negotiability of three Union proposals. II. Background Two fo the three Union proposals concern Cooperative Agreements which are devices used by the Agency to accomplish certain projects. According to the Agency, a Cooperative Agreement may be one of several types of agreements providing for mutual undertaking and contribution between a Federal agency and a cooperator to perform research, extension, information or education service or work. In this case, cooperators are State Land-Grant colleges and universities or State Agricultural Experiment Stations. There are three types of such Cooperative agreements commonly used by the Agency: A Broadform Cooperative Agreement is an agreement between the Agricultural Research Service (ARS) and other parties covering a broad area of cooperative research, extension, information or education work where specific details are planned jointly as the project proceeds. Such an agreement may cover a broad area and deal with numerous individual research problems. Federal and State resources may be brought to bear on a problem by mixing funds, personnel, equipment, lab space, soil plots and computer use. A General Cooperative Agreement is also an agreement between the ARS and other parties. It describes in detail a particular research, extension, information or education program usually of long duration and funded on a fiscal year basis. A Specifc Cooperative Agreement is similarly an agreement between ARS and other parties, describing in detail a specific research, extension, information or education project. The duration may be short or could extend up to five years. Broadform agreements are a means of providing nonprofessional personnel to support research programs. The other two types of agreements make available professional as well as nonprofessional personnel. Subsequent to the statements of positions by the parties summarized below, the Agency distributed a memorandum to all employees of the Agricultural Research Service dated September 1985, and notified the Union by letter dated November 15, 1985, announcing discontinuance of use of Broadform Cooperative Agreements by October 1986. In the letter to the Union, the Agency stated that it had already discontinued the use of General Cooperative Agreements. As these two types of agreements would no longer be used, the Agency stated that the issues giving rise to the Union's concerns no longer applied and asked the Union to withdraw its petition with respect to the two proposals involving Cooperative Agreements. By letter of December 17, 1985, the Union declined to withdraw the petition as "not in the best interest of the Union." There is no basis for a finding that the Agency's announced intention to discontinue some or all of the Cooperative Agreements has rendered Union Proposals 1 and 2 moot. In any event, the continued existence of such agreements is not itself a prerequisite to finding negotiable proposals like the ones involved here which require that, to the extent Cooperative Agreements exist, they will be administered in accordance with applicable laws and regulations and the identity of Cooperative Agreement employees will be furnished to the Union. Accordingly, we proceed to consider the parties' contentions concerning the negotiability of those proposals. III. Union Proposals 1 and 2 Proposal 1: Section 4 Upon request, location management will provide the union President with an updated list of Cooperative Agreement Employees. Proposal 2: Section 6 Area and location management agree to comply with OMB Circular No. A-76 and all other applicable laws and regulations on contracting out and cooperative agreements. (Only the underlined portion of this proposal is in dispute). A. Positions of the Parties The Agency contends that Proposal 1 is nonnegotiable because "it does not have custody over the requested information and it does not maintain lists of cooperative agreement employees in the regular course of business. Further, it is the Agency's position that the information cannot be considered 'agency records' subject to disclosure under the Freedom of Information Act." Agency Statement at 6. Finally, the Agency contends that the Proposal 1 does not concern a condition of employment of unit employees and that it thus has no bargaining obligation under the Statute. The Union's position is that Proposal 1 concerns conditions of employment of unit employees, and that the Agency's arguments regarding its records and the Freedom of Information Act (FOIA) are irrelevant. The Agency's position as to Union Proposal 2 is that, like Proposal 1, it is nonnegotiable because it does not concern conditions of employment of unit employees. In addition, the Agency asserts the proposal is inconsistent with Government-wide rules and regulations. The Union takes issue with both arguments. B. Analysis and Conclusions 1. Union Proposal 1 Whether Union Proposal 1 is negotiable depends, first, on whether a proposal for management to give the Union a list of Cooperative Agreement employees concerns conditions of employment of unit employees. Although Cooperative Agreement employees are not members of the bargaining unit, we agree with the Union that knowledge of when, where and how these employees work in relation to unit employees is directly related to conditions of employment of unit employees. Specifically, and without contravention by the Agency, the Union points out that it is common to fill unit vacancies with Cooperative Agreement employees, thereby reducing the size of the unit, which in turn reduces promotion or reassignment opportunities for unit employees. Further, Cooperative Agreement employees "work side-by-side with and are often trained by unit employees." Union Reply Brief at 3. Because Cooperative Agreement employees and unit employees are jointly enegaged in furtherance of a common agency objective -- the accomplishment of a cooperative project -- the information sought by the Union is necessary so that unit employees can be properly evaluated on training assignments and on their overall performance of the cooperative project. As the Authority concludes that Union Proposal 1 does affect working conditions of unit employees, it is necessary to review the other bases for the Agency's assertion that the proposal is nonnegotiable. As to the Agency's arguments that it does not maintain the data sought and that such information cannot be considered Agency records subject to disclosure under the FOIA, the Agency does not contend, nor does anything in the record establish, that local management could not provide such information. Further, the Agency does not assert, nor does it otherwise appear, that providing this information would be inconsistent with law or Government-wide regulation. We therefore reject these Agency arguments as bases for finding the proposal nonnegotiable. In view of the foregoing, the Authority finds that the proposal that "upon request, location management will provide the Union President with a list of Cooperative Agreement employees" is negotiable. 2. Union Proposal 2 For the reasons set out above in the discussion of Proposal 1, the Authority finds that Proposal 2 concerns conditions of employment of unit employees. The Agency also asserts that the proposal is nonnegotiable because it is inconsistent with Government-wide rules and regulations. Essentially, it argues that an agreement to "comply with OMB Circular No. A-76 and all other applicable laws and regulations on contracting out and Cooperative agreements" is nonnegotiable as to the underlined phrase because Circular No. A-76 does not regulate the use of cooperative agreements. The Union states that since the reference to OMB Circular No. A-76 is clearly followed by "and all applicable laws and regulations," it "does not intend, and the proposal does not require, OMB A-76 to be applied to the administration of cooperative agreements." Union Response at 4. Rather, it states that the proposal was inclusive because of the Union's "legitimate interest in (assuring) the employer's compliance with applicable procedures when it exercise(s) either the right to contract out or to enter a cooperative agreement." Id. at 4-5. If this proposal were revised to more precisely implement the Union's stated intent of requiring decisions to contract out or to enter into cooperative agreements merely to comply with applicable laws and regulations, it would be negotiable. See American Federation of Government Employees, AFL-CIO, National Council of EEOC Locals and Equal Employment Opportunity Commission, 10 FLRA 3 (1982) (Proposal 1), enforced sub nom. EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed, 54 U.S.L.W. 4408 (U.S. April 29, 1986) (per curiam). However, the Union's stated intent is inconsistent with the plain language of the proposal which expressly requires OMB Circular A-76 to be applied to cooperative agreements. Consequently, although we find that Union Proposal 2 concerns conditions of employment of unit employees, we conclude that to the extent the proposal requires OMB Circular No. A-76 to be applied to Cooperative Agreements, it is inconsistent with that Government-wide regulation and therefore outside the duty to bargain under section 7117(a)(1) of the Statute. IV. Union Proposal 3 Section 17 Any union representative required to represent an employee at a location other than his own will be given official time, travel and per diem. (Only the underlined portion of this proposal is in dispute). A. Positions of the Parties The Agency contends that the proposal is nonnegotiable because (1) there is no entitlement to travel and per diem expenses for Union representatives either by law or collective bargaining and (2) it is inconsistent with a published Agency regulation for which there is a compelling need. The Union disputes in detail the Agency's argument regarding the legality of negotiated provisions for travel and per diem expenses for Union representatives, and argues that the Agency has not established a compelling need for its published regulation under the rules and regulations of the Authority. B. Analysis and Conclusions Since the parties filed their statements of position in this case, the Authority has found a proposal which would require payment by an agency of the travel expenses of Union representatives using official time to be within the duty to bargain. 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). In Customs Service, the Authority found that agencies have discretion, under the Travel Expense Act and implementing regulations, to determine whether and under what circumstances travel related to labor-management relations activities is sufficiently within the primary interest of the United States so as to constitute official business for which employees may receive 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 this proposal concerning the circumstances under which otherwise appropriate travel expenses would be payable does not meet the statutory and regulatory standards discussed in Customs Service. Moreover, the proposal does not preclude case-by-case determinations as to the appropriateness of specific travel and expenses which are necessary and proper under law and governing regulation. See also American Federation of Government Employees, AFL-CIO, National EPA Council and Environmental Protection Agency, 21 FLRA No. 80 (1980) (Union Proposal 1). For the reasons stated in those cases, the Authority concludes that Union Proposal 3 is negotiable, unless it conflicts with an Agency regulation for which there is a compelling need. The Agency issued Personnel Letter No. 711-10 on May 16, 1984, "to establish procedures for agencies as a result of the . . . decision of the Supreme Court" in Bureau of Alcohol, Tobacco, and Firearms v. Federal Labor Relations Authority, 464 U.S. 89 (1983) (BATF), and OPM guidance contained in FPM Letter 711-162. The Personnel Letter stated as background that travel and per diem payments to Union negotiators are nonnegotiable and that such payments could only be made unilaterally by the Agency. The letter also set out various procedures regarding payment of travel and per diem as determined by the Agency. In its statement of position, the Agency asserts that a compelling need exists for this regulation because it implements a "mandate" to the Agency flowing from the Supreme Court's decision in BATF, cited above. The "mandate," according to the Agency, is that agencies comply with the requirements of a decision of the Comptroller General, 46 Comp. Gen. 21 (1966), cited in BATF. However, in view of the Authority's decisions subsequent to BATF finding that certain aspects of travel and per diem are negotiable, BATF does not preclude negotiating over travel and per diem expenses, nor would it constitute a "mandate" to sustain a compelling need for the Agency's regulation under section 2424.11(c) of the Authority's Rules and Regulations. See National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA No. 127 (1986) (Provision 3). Therefore, Union Proposal 3 is found to be negotiable. V. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review, as it relates to Proposal 2, found to be nonnegotiable, be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain on Union Proposals 1 and 3. * Issued, Washington, D.C., August 15, 1986. /s/ J. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTE$ --------------- (*) In finding these proposals to be within the duty to bargain, the Authority makes no judgment as to their merits.