[ v24 p121 ]
The decision of the Authority follows:
24 FLRA No. 16 NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES Union and U.S. DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION SERVICE, PLANT PROTECTION AND QUARANTINE PROGRAM Agency Case No. 0-NG-1280 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 the following provision of a locally negotiated supplemental agreement disapproved by the Agency head as provided in section 7114(c)(4) of the Statute: Travel and per diem for negotiations and other activities directly related to negotiations shall be negotiated. We find the provision to be negotiable. II. Positions of the Parties The Agency contends that payment of travel and per diem expenses is specifically provided for by law and the provision is therefore nonnegotiable because it does not concern a condition of employment of bargaining unit employees within the meaning of section 7103(a)(14)(C) of the Statute. The Agency also argues that the decision of the Supreme Court in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF) requires a conclusion that travel and per diem payments for employees engaged in union representational activities is not within the duty to bargain. The Agency contends, therefore, that the Authority's decisions 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) and 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. U.S. Department of Agriculture, Federal Grain Inspection Service v. FLRA, No. 86-1295 (D.C. Cir. May 21, 1986), are incorrect. The Agency maintains that for authorization of payment for travel and per diem expenses to be consistent with law and regulation it "can only be made as a unilateral decision of management, based on a case-by-case review of the circumstances of each proposed travel situation," and not through negotiation. Agency Statement of Position at 6. Finally, the Agency argues that the provision is inconsistent with section 7101(b) of the Statute because whatever action it takes would involve it in "lengthy and costly litigation," which is contrary to the accomplishment of an effective and efficient government. Agency Statement of Position at 8. The Union states that the provision does not require payment of travel and per diem expenses but only a commitment by the Agency to negotiate about such payment when the issue arises. The provision is negotiable under the Authority's decisions in Customs Service and Federal Grain Inspection Service, the Union argues, because in those decisions the Authority rejected each of the arguments made by the Agency in this case. The Union contends that the Agency's one new argument, that the provision would result in costly litigation contrary to section 7101(b) is a "patent fallacy" because it would mean that any negotiability dispute would be contrary to the Statute. Union Response to Agency Statement of Position at 5. III. Analysis and Conclusion A. The Provision Concerns a Condition of Employment In Customs Service, 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 of bargaining unit employees. For the reasons expressed in that decision, the Authority finds that the provision concerns a condition of employment of bargaining unit employees. B. The Provision Is Not Inconsistent With Federal Law and Government-wide Rules and Regulations In BATF the Supreme Court held that payment of travel and per diem expenses for employees engaged in union representational activities was not required by the Statute. The Supreme Court did not hold that agencies and unions were precluded by law from negotiating over the payment of such expenses, only that payment was not required by law. In Customs Service we rejected the same argument which the Agency makes here, namely, that payment of travel and per diem expenses for union representatives is inconsistent with law and regulation and therefore nonnegotiable. We found that 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, 46 Comp. Gen. 21 (1966), agencies have discretion to make determinations that travel in the context of union activity is sufficiently within the interest of the Government to constitute official business. Following 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. The Agency does not argue that travel connected with negotiations or activities related to negotiations could not meet this required standard. /2/ Moreover, the Authority has consistently held that in the absence of a demonstration to the contrary, proposals providing for the payment of travel and per diem expenses for union representatives would not prevent management from making individual case-by-case determinations as to the propriety under the FTRs of authorizing particular payments. National Labor Relations Board Union and National Labor Relations Board, 22 FLRA No. 55 (1986), petition for review filed sub nom. National Labor Relations Board v. FLRA, No. 86-1504 (D.C. Cir. Sept. 8, 1986). Compare National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, 22 FLRA No. 45 (1986) (Union Proposal 2) (Authority unable to conclude based on the record in the case that the provision would allow for compliance with law and regulation.) There is nothing in the provision in this case which prevents the Agency from complying with the requirements of law and regulation. In fact, since this provision provides for bargaining on such matters "as the issue arises," it clearly is not inconsistent with any requirement under law and regulation for case-by-case determinations. Compare National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, 22 FLRA No. 45 (1986) (Union Proposal 1 was a "general request to bargain" and it was not sufficiently specific and delineated to meet the conditions for review set forth in the Authority's Regulations). Finally, as to the Agency's section 7101(b) argument, in our opinion the possibilities alluded to by the Agency constitute no basis for reversing the conclusion reached in Customs Service. Based on the foregoing analysis, the Authority finds that the provision concerns a condition of employment and is not inconsistent with law or Government-wide regulation. Therefore, the provision is within the duty to bargain. /3/ IV. Order Pursuant to section 2424.10 of the Authority's Rules and Regulations, the Agency must rescind its disapproval of the disputed provision, which was bargained on and agreed to by the local parties. Issued, Washington, D.C., November 21, 1986. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) With respect to the Union's Motion for Waiver of Time Limits, the time limit for filing a petition for review of an agency's allegation of nonnegotiability is specified in section 7117(c)(4) of the Statute. It may not be waived or extended. There is no basis, however, for a determination that the allegation in this case was served on a date which would render the Union's petition untimely. It is, therefore, unnecessary to rule on the Motion. (2) As the Union points out, in agreeing to this provision the parties have agreed to bargain on this determination. Union Response to Agency Statement of Position at 4. (3) In finding that the provision is within the duty to bargain, we express no judgment as to its merits.