21:0097(19)NG - NTEU and Dept. of Treasury, IRS -- 1986 FLRAdec NG

 21 FLRA No. 19
 
 NATIONAL TREASURY EMPLOYEES 
 UNION
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY 
 INTERNAL REVENUE SERVICE
 Agency
 
                                            Case No. 0-NG-1021
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    I.  Statement of the Case
 
    The petition for review in this case comes 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).
 It raises issues concerning the negotiability of a single Union
 Proposal.
 
    II.  Union Proposal
 
       Employee negotiators representing the union will be compensated by
       the agency for all travel and per diem expenses unless the agency
       can demonstrate just cause for not doing so.  At a minimum, cause
       will focus upon any disparate treatment of the management and
       union teams, the interest of the public, employee morale, and a
       viable labor management relationship.
 
    III.  Positions of the Parties
 
    As explained by the Union, the proposal is not intended to conflict
 with any applicable law or regulation.  Indeed, the Union states:
 
       This proposal permits any agency to examine the facts of each
       reimbursable incident and to decide after the event whether it is
       reimbursable.  By focusing upon a "just cause" standard we have
       chosen a nonquantitative term of art that allows for a variety of
       arguments to be raised by the agency.  The agency could raise the
       argument that reimbursement for a particular event is barred by
       law or regulation.  The agency could argue that there is no nexus
       to government interests or that it is not in the best interest of
       the government.  The arbitrator deciding this dispute would take a
       variety of factors into consideration and issue a decision based
       on a weighing of all arguments.  The only argument that could
       standing alone bar reimbursement without consideration of the
       other arguments is that reimbursement would violate law and
       regulation.
 
    See, Union Response at pages 8 and 9. Finally, the Union maintains
 that its proposal limits travel and per diem reimbursement to unit
 employees authorized to be at the bargaining table on official time.
 This number is limited to a number of employees equal to the number
 which represent the Agency.
 
    The Agency contends that the proposal is not within the duty to
 bargain for the following reasons:
 
       1. It does not concern conditions of employment within the meaning
       of section 7103(a) (14) of the Statute because payment of travel
       expenses is specifically provided for by law;  2. it is
       inconsistent with Federal law or Government-wide regulation;  and
       3. the demand for travel and per diem to employee/negotiators is
       not limited to those employee/negotiators who are receiving
       official time.
 
    IV.  Analysis
 
    A. "Conditions of Employment"
 
    The Agency makes an essentially identical "conditions of employment"
 argument to that made by the agency in National Treasury Employees Union
 and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2
 (1986).  The Authority rejected that argument in Customs Service and it
 is rejected here for the sane reasons set forth in that case.
 
    B. Inconsistent with Federal law or Government-wide Rules or
 Regulations
 
    The Agency contends, in essence, that under the Travel Expense Act, 5
 U.S.C. 5701 et seq., and the Federal Travel Regulations (FTRs), 41 CFR,
 Part 101-7, a determination as to whether an employee is on "official
 business" is dependent on the particular facts involved in each
 individual situation.  Consequently, such a determination is not a
 matter of unlimited discretion on the part of the Agency.
 
    In Customs Service, the Authority has 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
 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
 the proposal does not meet the statutory and regulatory standards
 discussed in Customs Service.  Moreover, as noted in the Union's
 Position, the proposal envisions case by case determinations as to the
 appropriateness of specific travel and expenses which are necessary and
 proper under law and governing regulation.  Given these circumstances,
 and for the reasons expressed in Customs Service, the Agency' s
 assertion that the proposal is inconsistent with law and Government-wide
 regulations must be rejected.
 
    C. Limited to those Employee/Negotiators Who Are Receiving Official
 Time.
 
    The Agency contends that the proposal, on its face, would permit
 employee/negotiators who are not receiving official time to be entitled
 to travel and per diem.  However, in our view the explicit language of
 the proposal does not require payment of travel and per diem to those
 employee/negotiators who are not receiving official time.  Indeed, the
 Union, as previously noted, interprets the proposal to limit travel and
 per diem reimbursement to only unit employees authorized to be at the
 bargaining table on official time.  In any event, nothing in Customs
 Service analysis indicates that travel and per diem must be tied to 7131
 official time in order to be negotiable.  Instead, negotiability of
 travel and per diem is based on consideration of whether travel involved
 is in the primary interest of the Government so as to constitute
 "official business" without consideration of section 7131.
 Consequently, we find the Agency's contention not to be supported.
 
    V. Conclusion
 
    Based on the foregoing analysis, the Authority finds that the
 proposal concerns a condition of employment which is not inconsistent
 with law or Government-wide regulation.  Therefore, the proposal is
 within the duty to bargain.  /1/
 
    VI.  Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request, or as
 otherwise agreed to by the parties, bargain concerning the Union
 Proposal.
 
    Issued, Washington, D.C., March 20, 1986
                                       (s)---
                                       Jerry L. Calhoun, Chairman
                                       (s)---
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ In deciding that the proposal is negotiable, the Authority makes
 no judgment as to its merits.