26:0589(72)NG - NTEU and Treasury, Bureau of the Public Debt -- 1987 FLRAdec NG
[ v26 p589 ]
26:0589(72)NG
The decision of the Authority follows:
26 FLRA No. 72
NATIONAL TREASURY EMPLOYEES UNION
Union
and
DEPARTMENT OF THE TREASURY
BUREAU OF THE PUBLIC DEBT
Agency
Case No. 0-NG-1348
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed by the Union under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of the following proposal:
The employer agrees to pay the travel and per diem expenses
incurred by employee members of the Union Negotiating Committee
while using official time available under the terms of this
agreement.
We find the proposal to be negotiable.
II. Positions of the Parties
The Agency contends that the proposal does not concern a condition of
employment because it is inconsistent with the Travel Expense Act, 5
U.S.C. section 5701 et seq., the Supreme Court's decision in Bureau of
Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983), and
decisions of the Comptroller General. The Agency also contends that the
proposal does not concern conditions of employment because it is not
related to the working conditions of unit employees. Finally, the
Agency argues that the proposal is inconsistent with Government-wide
rules or regulations.
The Union contends that the proposal is an attempt to negotiate for
the payment of travel and per diem expenses of employee union
representatives by establishing criteria for determining that travel
related to labor relations activity is sufficiently within the interest
of the Government so as to constitute official business.
III. Analysis and Conclusion
A. The Proposal Concerns a Condition 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. March 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 of bargaining unit employees.
B. The Proposal Is Not Inconsistent With Federal Law and
Government-wide Rules and Regulations
In Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
(1983) (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.
In Customs Service the Authority 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 non-negotiable. The Authority found that under the Travel
Expense Act, 5 U.S.C. section 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. Nothing in
these authorities requires that this necessary determination be made
unilaterally by management and only on a case-by-case basis. An agency
may determine, generally, that travel in the context of labor relations
activities is sufficiently within the interest of government to
constitute official business. Further, we reject the Agency's argument
that it lacks discretion which is sufficient to place the matter within
its duty to bargain. We find that the "certification process,"
described by the Agency as the act of declaring a particular
circumstance to be in the primary interest of the United States, is an
exercise of its discretion and is subject to the duty to bargain.
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. See, for
example, 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). There is nothing in the proposal in this case which
prevents the Agency from complying with the requirements of law and
regulation. The proposal was not intended to, and could not, require
the Agency to use specific authorization procedures and practices
relating to actual travel which conflict with the FTRs. It would not
foreclose individual determinations regarding the propriety under the
FTRs of authorizing particular travel and expenses. To the extent that
case-by-case determinations are required under law and regulation, this
proposal would not be inconsistent with such procedures. See Customs
Service, 21 FLRA No. 2, slip op. at 6-7.
Based on the foregoing analysis, we find that the proposal concerns a
condition of employment and is not inconsistent with law or
Government-wide regulation. Therefore, the proposal is within the duty
to bargain. /*/
IV. Order
The agency must upon request, or as otherwise agreed to by the
parties, bargain on the Union's proposal.
Issued, Washington, D.C. April 20, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, III
Henry B. Frazier, III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In finding that the proposal is within the duty to bargain, we
express no judgment as to its merits.