30:0022(6)CA - Agriculture and AFGE Local 2831 -- 1987 FLRAdec CA



[ v30 p22 ]
30:0022(6)CA
The decision of the Authority follows:


30 FLRA No. 6

UNITED STATES DEPARTMENT
OF AGRICULTURE

             Respondent

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2831

             Charging Party

Case No. 2-CA-70099

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority based on the Regional Director's "Order Transferring Case to the Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations based upon a stipulation entered into by the Respondent, the Charging Party (the Union) and the General Counsel. The General Counsel and the Respondent have filed briefs with the Authority. 1

The complaint alleges that the Respondent violated section 7116 (a) (1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by preventing through its Personnel Letter No. 711-10 (May 16, 1984), its subordinate organization Farmers Home Administration, New Jersey (FmHA, New Jersey) from engaging in collective bargaining over the Union's contract proposal concerning travel and per diem expenses associated with labor relations activities. As a result, the Respondent interfered in the collective bargaining relationship between FmHA, New Jersey and the Union. [PAGE]

II. Background

Since April 27, 1983, the Union and FmHA, New Jersey have been parties to a collective bargaining agreement with a term of 3 years with the agreement subsequently effective pending renegotiations. Article 2, Section 2.5 of the agreement provides as follows:

2.5 MILEAGE AND PER DIEM: When necessary, the Employer will pay the mileage and per diem of the Union officials who are engaged in representation activities. The Union agrees its stewards will attempt to resolve grievances by telephone before traveling to the worksite of the grieving employee. A steward will represent only the employees in the specific area in which the steward is a designated representative. Mileage and per diem will be kept to a minimum and will be paid only to Union officials.

In January 1986, the Union requested renegotiation of the agreement. During the course of negotiations, the Union submitted a contract proposal for Article 2, Section 2.5 requiring payment by FmHA, New Jersey of travel and per diem expenses for Union representatives engaged in labor-management activities. The proposal required payment of travel and per diem expenses by deleting the phrase "when necessary" from the existing contract language.

On October 27, 1986, based on the Respondent's Personnel Letter 711-10, FMHA, New Jersey declared the Union's proposal regarding travel and per diem to be nonnegotiable. Personnel Letter 711-10 pertinently provided:

PROCEDURE

The following procedures are established regarding the payment of travel and per diem expenses to employee union representatives when official time is granted for negotiations and/or contract administration activities under 5 USC 7131(a) and (d).

(2) Management negotiators cannot negotiate any agreement with any union which would authorize payment of travel and per diem to union negotiators and/or representatives. It is the Department's position that the issue is non-negotiable. [ v30 p2 ]

In their stipulation of facts, the parties agree that the Union's proposal on travel and per diem expenses is substantially similar to a proposal found negotiable by the Authority in National Treasury Employees Union and Department of Treasury, U.S. Customs Service, 21 FLRA 6 (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), which was decided and issued on January 31, 1986. In their stipulation of facts, the parties further agree that through its personnel letter, the Respondent prevented its subordinate organization FmHA, New Jersey from engaging in collective bargaining over the Union's contract proposal concerning travel and per diem expenses.

III. Positions of the Party

The Respondent acknowledges that the language of the Union's proposal is identical to the language of the proposal the Authority held negotiable in Customs Service. However, the Respondent contends that in contrast to Customs Service, there is no statement of intent and no other evidence in the record that indicates that the proposal requires the payment of travel and per diem expenses to comport with the Travel Expense Act and Federal Travel Regulations. Consequently, the proposal must be construed to require the payment of travel and per diem expenses regardless of whether such payment comports with the Travel Expense Act and the Federal Travel Regulations. Accordingly, the Respondent argues that because it is inconsistent with Federal law and Government-wide regulation, the proposal must be found outside the duty to bargain.

The General Counsel contends that the Authority's decision in Customs Service is dispositive of the issues in this case. The General Counsel maintains that the Union sought to negotiate the travel and per diem proposal consistent with that decision. Consequently, the General Counsel argues that the Respondent violated section 7116(a)(1) and (5) of the Statute by preventing its subordinate organization FmHA, New Jersey from bargaining with the Union over a negotiable proposal and as a result by interfering in the bargaining relationship between FmHA, New Jersey and the Union.

IV. Analysis and Conclusion

We agree with the General Counsel that the decision in Customs Service is dispositive. Accordingly, we find that the Respondent violated the Statute as alleged. [ v30 p3 ]

It is well established that an agency violates section 7116(a)(1) and (5) of the Statute when it refuses to bargain over a proposal that is substantially identical to a proposal the Authority has previously determined to be negotiable under the Statute. For example, Internal Revenue Service, 28 FLRA 14 (1987). In the case before us, the parties have stipulated that the Union's proposal is substantially similar to the proposal the Authority found negotiable in Customs Service. We find, contrary to the Respondent's contentions, that in entering into such a stipulation, the parties agreed that the intended meaning as well as the literal language of the proposal submitted by the Union are substantially similar to the intended meaning and literal language of the proposal found negotiable in Customs Service. We, therefore, reject the Respondent's contention that the Union's proposal is nonnegotiable because it is inconsistent with Federal law and Government-wide regulations. Accordingly, we find that the refusal to bargain over the Union's proposal constituted a violation of section 7116(a)(1) and (5) of the Statute. See Internal Revenue Service, 28 FLRA 14, 15-16.

Based on the stipulation by the parties, we further find that the Respondent violated section 7