29:0940(67)CA - Agriculture and Agricultural Marketing Service, Livestock Division, Meat Grading and Certification Branch, Washington, DC and AFGE, National Meat Graders Council -- 1987 FLRAdec CA



[ v29 p940 ]
29:0940(67)CA
The decision of the Authority follows:


29 FLRA No. 67

U.S. DEPARTMENT OF AGRICULTURE AND
U.S. DEPARTMENT OF AGRICULTURE
AGRICULTURAL MARKETING SERVICE
LIVESTOCK DIVISION, MEAT GRADING
AND CERTIFICATION BRANCH
WASHINGTON, D.C.

                        Respondents

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL MEAT
GRADERS COUNCIL

                        Charging Party

Case No. 3-CA-70226

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of our Rules and Regulations, based on a stipulation entered into by the parties. The issues presented in this case are: (1) whether the Respondent U.S. Department of Agriculture, Agricultural Marketing Service, Livestock Division, Meat Grading and Certification Branch, Washington, D.C. (the Activity) violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by refusing to negotiate with the Charging Party (the Union) concerning the payment of travel and per diem expenses to Union representatives; and (2) whether the Respondent U.S. Department of Agriculture (the Agency) violated section 7116(a)(1) and (5) of the Statute by directing the Activity not to negotiate concerning the Union's proposal.

We find that: (1) because the Activity's action was taken pursuant to directions from the Agency, the Activity did not violate section 7116(a)(1) and (5) of the Statute when it declared the Union's proposal to be nonnegotiable; [PAGE] and (2) the Agency violated section 7116(a)(1) and (5) of the Statute by directing the Activity to refuse to negotiate with the Union concerning the Union's proposal.

II. Background

The Union is the exclusive representative of a nationwide unit of all permanent, full-time meat graders (GS-5, 7 and 9), Meat Grading and Certification Branch, Livestock Division, Agriculture Marketing service, U.S. Department of Agriculture. By letter dated May 12, 1986, the Agency directed the Activity to follow certain procedures contained in the Agency's Department Personnel Manual (DPM) Letter No. 711-10. Those procedures prohibited management negotiators from negotiating any agreement with any union which would authorize the payment of travel and per diem expenses to union representatives. See Joint Exhibit No. 11. In November 1986, during the course of ground rules negotiations with the Activity for a new collective bargaining agreement, the Union submitted a proposal which provided that the Activity would pay travel and per diem expenses incurred by the Union's unit employee negotiating team during negotiations for a new agreement. By letter dated December 5, 1986, the Activity declared the Union's proposal to be nonnegotiable.

III. Positions of the Parties

The Agency first contends that the Activity did not violate section 7116(a)(1) and (5) because the Activity was specifically barred by the Agency's written policy from negotiating over proposals concerning the payment of travel and per diem expenses to union representatives. Further, acknowledging Authority precedent to the contrary, the Agency argues that proposals providing for the payment of travel and per diem expenses to union representatives are nonnegotiable because they are inconsistent with the Travel Expense Act, regulations of the General Services Administration, and decisions of the Comptroller General. Thus, according to the Agency, the Union's proposal is inconsistent with applicable law, rule, and regulation. Therefore, the Agency asserts that it did not violate section 7116(a)(1) and (5) by directing the Activity not to negotiate concerning the Union's proposal because the Activity had no underlying duty to bargain on proposals concerning the payment of travel and per diem expenses to union representatives. [ v29 p2 ]

The General Counsel first contends that the Agency and the Activity violated section 7116(a)(1) and (5) of the Statute by declaring the Union's proposal to be nonnegotiable. In particular, the General Counsel argues that the facts do not show that the Activity acted at the direction of the Agency in declaring the proposal nonnegotiable. In the alternative, the General Counsel contends that if the Activity is found to have acted pursuant to the Agency's direction, the Agency should be found to have violated section 7116(a)(1) and (5) of the Statute.

IV. Discussion

As the Agency acknowledges, the proposal which it directed the Activity to declare nonnegotiable is without material difference from the proposal the Authority found negotiable in National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine Program, 24 FLRA No. 16 (1986), petition for review filed sub nom. Department of Agriculture, Animal and Plant Health Inspection Service v. FLRA, No. 87-1009 (D.C. Cir. Jan. 12, 1987). If an agency refuses to bargain over a proposal which is without material difference from a proposal which the Authority has previously determined to be negotiable, that refusal constitutes a violation of section 7116(a)(1) and (5) of the Statute. Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981), aff'd sub nom. Department of the Air Force, United States Air Force Academy v. FLRA, 717 F.2d 1314 (10th Cir. 1983). Accordingly, we find that the Agency violated section 7116(a)(1) and (5) of the Statute by directing the Activity to refuse to bargain on the Union's proposal.

The Agency also contends that the proposal in this case is like the proposal in National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, 22 FLRA No. 45 (1986) (Proposal 2), and requires "that all travel vouchers submitted by union representatives in connection with basic agreement negotiations must be approved and paid." Agency's Brief at 17 (emphasis in original). This contention cannot be sustained. The proposal in Animal and Plant Health Inspection Service was described by the union as providing for an "automatic right" on the part of union negotiators to the payment of travel and per diem expenses. In that case, the Authority found that by requiring the "automatic" payment [ v29 p3 ] of travel and per diem, the proposal was inconsistent with law and regulation because it did not permit a determination as to whether those expenses were incurred in the primary interest of the Government.

Nothing in the record of this case supports the Agency's contention that the Union intends its proposal to require the Agency to pay travel and per diem expenses of union representatives in a manner that is inconsistent with law and applicable regulation. Unlike the union in Animal and Plant Health Inspection Service, the Union in this case does not claim that its pro