23:0010(3)NG - National Joint Council of Food Inspection Locals, AFGE and Food Safety and Inspection Service, Agriculture -- 1986 FLRAdec NG
[ v23 p10 ]
23:0010(3)NG
The decision of the Authority follows:
23 FLRA No. 3
NATIONAL JOINT COUNCIL
OF FOOD INSPECTION LOCALS,
AFGE, AFL-CIO
Union
and
FOOD SAFETY AND INSPECTION
SERVICE, U.S. DEPARTMENT
OF AGRICULTURE
Agency
Case No. 0-NG-1061
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute). It concerns the
negotiability of six provisions on travel and per diem. /1/ The Agency
head disapproved the provisions in reviewing a negotiated agreement
under section 7114(c) of the Statute. The disapproval was limited to
those aspects of the provisions which would allow payment of travel and
per diem expenses for employee representatives. The disputed provisions
follow:
(Provision 1)
ARTICLE V -- UNION REPRESENTATIVES, GENERAL PROVISIONS AND
EXPENSES
Section A -- Representatives:
The Chairman of the Council, the Presidents of the Regional
Councils, the Presidents of affiliated Locals and designated plant
representative or their designees are recognized as Union
representatives at their respective organizational levels within
the Service . . . Similarly, the Local President(s) will
designate to the appropriate area office one (1) plant
representative for each plant having an assigned supervisor who
will be expected to deal with the Service supervisor of that plant
on day-to-day matters covered by this Agreement or applicable
regional agreements. There will be no restriction upon the Local
President with respect to whom he/she appoints as a plant
representative. However, if a Local President appoints an
individual who is located over twenty-five (25) miles from the
plant to which he/she was appointed to serve as a plant
representative, the entitlement to official time and expense shall
be restricted to that which he/she would normally have received
had he/she been located within the twenty-five (25) mile radius.
(Provision 2)
Section C -- Official Expenses:
Per diem and travel expenses at official rates shall be paid
Union representatives to attend meetings, and official
proceedings, and to present grievances pursuant to paragraphs
1(a), (b), and (c) of Section B.
However, per diem and travel expenses not to exceed $150 shall
be paid representatives to attend an oral conference pursuant to
paragraph 1(c) of Section B.
(Provision 3)
ARTICLE XIII -- HEALTH AND SAFETY
Section J -- Duty Time:
Each Union representative serving on a Health and Safety
Committee shall be afforded official time to engaged in such
tasks. If such tasks involve travel, official travel allowances
will be paid.
(Provision 4)
ARTICLE XXX -- DISCIPLINARY ACTION
Section D -- Procedures:
Disciplinary Actions shall be initiated and processed in
accordance with applicable regulations. Grievances over
disciplinary action decisions shall be processed in accordance
with the provisions of Article XXXII, and of Article XXXIII if
arbitration is invoked. It is further agreed by the Parties that:
* * * * * * *
If the employee is not represented by the Union, the Union
shall have the right to have an observer present at the oral
conference, subject to a contrary determination by an oral
conference officer when the employee objects on the grounds of
privacy.
The Union observer shall be on official time and expenses for
attendance at the meeting up to twelve (12) hours and $150. The
Union shall be notified sufficiently in advance of the oral
conference to permit attendance.
(Provision 5)
ARTICLE XXXII -- GRIEVANCE PROCEDURE
Section E -- Role of the Union:
The Union shall be recognized as the representative of the
aggrieved employee(s) unless such employee(s) wishes to personally
handle the grievance and so informs the official to whom the
grievance is being presented. No employee representative other
than the Union will be recognized under these procedures.
If any employee presents a grievance on his/her own behalf, the
Union shall have the right to have a representative present during
the grievance proceeding on official time and expense.
(Provision 6)
ARTICLE XXXIII -- ARBITRATION
Section B -- Arbitration Hearing:
1. The arbitration hearing will be held on Service premises or
premises furnished by the Service during the regular day-shift
hours of the basic workweek. The grievant(s), his/her Union
representative and up to four (4) witnesses shall be allowed
official time and expenses for the proceedings. All other
witnesses deemed necessary by the arbitrator will be allowed
official time for the proceedings.
II. Positions of the Parties
The Agency states that although the negotiated agreement was executed
after the Supreme Court's decision in Bureau of Alcohol, Tobacco and
Firearms v. FLRA, 464 U.S. 89 (1983), the disapproved language was
agreed to prior to that decision. It asserts that the disputed portions
of the provisions are not within the duty to bargain for the following
reasons:
a. They do not concern conditions of employement within the
meaning of section 7103(a)(14) of the Statute because payment of
travel expenses is specifically provided for by law;
b. they are inconsistent with Federal law and Government-wide
regulation; and
c. they conflict with an Agency regulation for which a
compelling need exists.
The Union asserts that the provisions represent negotiation of a
condition of employment about which the Agency has discretion, that is,
whether to allow travel and per diem for travel occurring in the context
of union representational activities. It contends that the Agency has
not established a compelling need for Personnel Letter 711-10, the
agency regulation which is claimed to bar negotiations.
III. Analysis
A. The Provisions Relate to Conditions of Employment
The Agency makes essentially the same "conditions of employment"
argument as that made by the agency 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 that argument in Customs Service and we reject it
here for the same reasons as set forth in that case.
B. The Provisions Are Not Inconsistent with Federal Law or
Government-Wide Rules or Regulations
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, /2/ agencies possess discretion to make
determinations that travel in the context of union activity is
sufficiently within the interest of the Government to constitute
official business. Upon 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. Customs Service, 21 FLRA No. 2. The Agency here makes no
argument that travel flowing from the particular types of activities and
circumstances set forth in the provisions could not meet this required
standard. /3/ Additionally, nothing in the provisions themselves or the
parties' arguments suggests that these provisions would foreclose case
by case determinations as to the appropriateness of specific travel and
expenses which are proper under law and governing regulations. Given
these circumstances, and for the reasons expressed in Customs Service,
we reject the Agency's assertion that the provisions are inconsistent
with law and Government-wide regulations.
C. The Provisions Do Not Conflict with an Agency
Regulation for Which a Compelling Need Exists
The Agency argues, without further explanation, that these provisions
conflict with Personnel Letter 711-10 -- an agency regulation which
meets the criteria for compelling need under section 2424.11(c) of the
Authority's Rules and Regulations. The Agency has made a similar
argument in various other negotiability appeals before us. We have
consistently found that the Agency failed to establish a compelling need
for that regulation. 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. Department of Agriculture,
Federal Grain Inspection Service v. FLRA No. 86-1295 (D.C. Cir. May 21,
1986); American Federation of Government Employees, Council of Meat
Grading Locals, AFL-CIO and Department of Agriculture, Agricultural
Marketing Service, Meat Grading and Certification Branch, 22 FLRA No. 38
(1986), and National Association of Agricultural Employees and U.S.
Department of Agriculture, Animal and Plant Health Inspection Service,
22 FLRA No. 45 (1986). There is no basis here for concluding
differently.
IV. Conclusion
Based on the foregoing analysis, the Authority finds that the
provisions concern conditions of employment and are not inconsistent
with law or Government-wide regulation. The provisions are not barred
from negotiations because they are inconsistent with an Agency
regulation for which a compelling need exists. Therefore, they are
within the duty to bargain. /4/
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall rescind its disapproval
of Provisions 1 through 6 which were bargained on and agreed to by the
parties at the local level.
Issued, Washington, D.C., August 6, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The petition originally included four additional provisions on
other subjects. The Union has since withdrawn its petition as to those
four provisions.
(2) 46 Comp. Gen. 21 (1966).
(3) Of course, if such a question should arise, the parties have
access to their negotiated grievance procedure as a means of resolving
the issue.
(4) In finding that these provisions are within the duty to bargain,
we make no judgment as to their merits.