[ v24 p682 ]
24:0682(71)CA
The decision of the Authority follows:
24 FLRA No. 71
UNITED STATES DEPARTMENT OF
AGRICULTURE, WASHINGTON, D.C.
and
UNITED STATES DEPARTMENT OF
AGRICULTURE, FARMERS HOME ADMINISTRATION
LITTLE ROCK, ARKANSAS
Respondents
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 108
Charging Party
Case No. 6-CA-50489
DECISION AND ORDER
I. STATEMENT OT 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. The Parties to the case are the Department of Agriculture,
Washington, D.C. and the Department of Agriculture, Farmers Home
Administration, jointly called Respondents and separately called
Respondent Agency and Respondent Activity, respectively, and the
National Federation of Federal Employees, Local 108, (the Union). The
complaint alleged that the Respondent Agency violated section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute (the
Statute) by causing its subordinate element, the Respondent Activity, to
breach provisions of the collective bargaining agreement negotiated at
the level of exclusive recognition with the Union which provide for the
payment of travel and per diem expenses. The complaint further alleged,
in the alternative, that the Respondent Activity violated section
7116(a)(1) and (5) of the Statute by breaching provisions of the
collective bargaining agreement negotiated with the Union which provide
for the payment of travel and per diem expenses, thereby failing and
refusing to bargain in good faith with the Union.
II. Background
Respondent Activity and the Union have been parties to a collective
bargaining agreement, effective from June 22, 1983 to June 22, 1986.
Article 11 of the agreement concerned the payment of travel and per diem
expenses. /1/
By letter dated June 25, 1984, the Respondent Activity informed the
Union of a new policy and procedure concerning the payment of travel and
per diem expenses for employees representing labor organizations.
Attached to the letter was a copy of USDA Personnel Letter 711-10 (May
16, 1984) issued by the Respondent Agency and an excerpt from 46 Comp.
Gen. 21 (1966). The USDA Personnel Letter set forth procedures
concerning the payment of travel and per diem expenses based on
interpretations of the decision of the United States Supreme Court in
Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations
Authority, 464 U.S. 89 (1983) and Office of Personnel Management
guidance. USDA Personnel Letter 711-10 stated in pertinent part:
(S)ince there is no entitlement for travel and per diem for
negotiating an agreement, there can be no entitlement to travel
and per diem expenses for representation purposes. Therefore,
payment of travel and per diem expenses to union representatives
can be made only as a unilateral management decision if such
payments meet the primary interest of the Government . . . .
* * * * *
(1) All USDA labor agreements containing either general or
specific authorization for payment of travel and per diem expenses
to union negotiators or representatives are unenforceable in
accordance with FPM Letter 711-162 and 46 Comptroller General 21
(1966). Management must determine, on a case by case basis,
whether or not the payment of travel and per diem meets the
justification requirements of the Comptroller General and is
warranted.
On November 26 and December 13, 1984, the Respondent Activity and the
Union met to discuss and negotiate changes in employee office hours and
lunch breaks. The Respondent Activity refused to pay travel and per
diem expenses to representatives of the Union for attending these
negotiation sessions based on USDA Personnel Letter 711-10. On December
10, 1984, the Respondent Agency briefed the Union on management's
decision to contract out certain of its functions and subsequently
informed the Union that employees who attended the briefing would be
paid travel and per diem expenses as that meeting was not covered by the
constraints of USDA Personnel Letter 711-10/
III. Positions of the Parties
The Respondent argues that since the payment by an agency of travel
and per diem expenses is governed by the Travel Expense Act and not the
Statute, such payment does not concern "conditions of employment" within
the meaning of section 7103 (a)(14). The Respondent further argues that
under Federal Law and Government-wide regulations, the payment of travel
and per diem expenses can be made only as a unilateral decision by an
agency. The General Counsel argues that Respondent Activity's refusal
to pay travel and per diem for negotiation sessions constituted a
repudiation of provisions of the parties' agreement in violation of
section 7116(a)(1) and (5) of the Statute. The General Counsel argues
in the alternative that the Respondent Agency caused the Respondent
Activity to repudiate provisions of the parties' agreement in violation
of the Statute.
IV. Analysis
We reject the Respondent's contention that the payment of travel and
per diem expenses does not concern conditions 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. Mar. 27, 1986) the Authority found that the Travel
Expense Act, 5 U.S.C. Sections 5701, et seq., does not specifically
address payment of travel expenses incurred by employees engaged in
labor-management activity. Therefore, the payment of travel and per
diem expenses is not a matter which is excepted from the definition of
conditions of employment under section 7103(a)(14).
The Authority further found in Department of the Treasury, U.S.
Customs Service, that agencies have discretion under the Travel Expense
Act, 5 U.S.C. Sections 5701 et seq., 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.
Consequently, based on controlling precedent the Authority held that the
exercise of such discretion is subject to negotiations. /2/ The
Authority noted, however, that determinations as to the appropriateness
of specific travel and per diem expenses which are necessary and proper
under law and governing regulations would have to be made on a
case-by-case basis. See Department of the Treasury, U.S. Customs
Service, 21 FLRA No. 2, slip op. at 6-7 (1986).
In this case, the Respondent Activity and the Union had negotiated
for the payment of travel and per diem expenses and had included those
provisions in Article 11 of their collective bargaining agreement. The
Respondent has not shown that the provisions of Article 11 are
inconsistent with law and regulation, so as to be outside the duty to
bargain. In Department of Defense Dependents Schools System, 21 FLRA
No. 125 (1986), the Authority concluded that an agency's conduct in
repudiating provisions of a negotiated agreement authorizing the payment
of travel and per diem expenses violated section 7116(a)(1) and (5) of
the Statute. Similarly, in Adjutant General, State of Ohio, Ohio Air
National Guard, Worthington, Ohio, 21 FLRA No. 124 (1986), the Authority
found that the unilateral termination and repudiation of a memorandum of
understanding which set forth ground rules for upcoming negotiations and
provided for the payment of travel and per diem expenses of employees
serving as the union's negotiations violated section 7116(a)(1) and (5)
of the Statute. On the same basis, we find here that the Respondent
Activity's refusal to pay travel and per diem expenses to the Union's
representatives on November 26 and December 3, 1984 constituted a
repudiation of their collective bargaining agreement which was
inconsistent with the Respondent Activity's good-faith bargaining
obligation in violation of the Statute. See Office of the General
Counsel, National Labor Relations Board, 22 FLRA No. 25 (1986).
Petition for review filed sub nom. National Labor Relations Board,
Office of the General Counsel v. FLRA, No. 86-1468 (D.C. Cir. Aug. 22,
1986).
We further find that the Respondent Activity at the level of
exclusive recognition was following the dictates of higher level Agency
management when it refused to pay the representatives of the Union. The
Respondent Agency's Personnel Letter 711-10 concerning payment of travel
and per diem expenses foreclosed such payments by subordinate levels
because it contained the directive that all USDA labor agreements
authorizing payment of travel and per diem expenses were unenforceable
and that such payment can be made only as a unilateral management
decision. The Authority has held that when higher-level agency
management prevents management at a subordinate level of exclusive
recognition from complying with its obligations under the Statute, the
higher-level management violates the Statute. See Department of Health
and Human Services, Social Security Administration, Region VI and
Department of Health and Human Services, Social Security Administration,
Galveston, Texas District, 10 FLRA 26 (1982). The Authority has held
further that where the subordinate entity is deprived of discretion to
comply with its statutory obligations it will not also be found to have
violated the Statute. See Social Security Administration, Region VI.
Consistent with this precedent we find here that Respondent Agency's
directive to Respondent Activity not to comply with Article 11 of the
collective bargaining agreement negotiated with the Union at the level
of exclusive recognition constitutes a violation of section 7116(a)(1)
and (5) by Respondent Agency. Further, Respondent Agency's directive
not to comply with the collective bargaining agreement afforded
Respondent Activity no discretion to do otherwise. Consequently, its
non-compliance with the collective bargaining agreement was ministerial
in nature. We therefore find that Respondent Activity's action was not
an independent violation of section 7116(a)(1) and (5).
Respondent relies upon the Authority's decisions in Department of the
Treasury, Internal Revenue Service, Washington, D.C. and its
Indianapolis, Indiana and Dallas, Texas Districts 16 FLRA 176 (1984) and
United States Air Force, Air Force Logistics Command, Wright-Patterson
Air Force Base, Ohio, 15 FLRA 151 (1981), affirmed on other grounds sub
nom. Department of the Air Force, et. al. v. FLRA, 775 F. 2d 727 (6th
Cir. 1985) where the Authority found that the agencies' refusal to pay
travel and per diem expenses to union representatives in connection with
labor-management activities was not in violation of the Statute. Those
cases are materially distinguishable from the present case. In Internal
Revenue Service and Wright-Patterson Air Force Base, Ohio, the General
Counsel did not allege nor did the records establish that the Respondent
had repudiated a collective bargaining agreement which provided for the
payment of travel and per diem expenses. In the present case, the
General Counsel alleged and established that the collective bargaining
agreement was repudiated. Thus the cases relied on by the Respondent in
this connection are inapposite.
V. Conclusion
We conclude that the Respondent Agency interfered with the Respondent
Activity's obligation to bargain in good faith in violation of section
7116(a)(1) and (5). We also conclude that the Respondent Activity did
not violate the Statute as alleged in the complaint. To remedy this
unfair labor practice, we shall order the Respondent Agency to cease and
desist from directing the Respondent Activity not to comply with the
terms of Article 11 of the collective bargaining agreement, effective
June 22, 1983, between the Respondent Activity and the Union and to
direct Respondent Activity to pay travel and per diem expenses to the
bargaining unit employees who incurred expenses at the negotiation
sessions of November 16 and December 13, 1984 and submit or previously
submitted appropriate claims of such payments under the terms of Article
11 of the parties' collective bargaining agreement. Of course, such
payments must be consistent not only with the terms of the parties'
collective bargaining agreement, but also with law and regulation,
including the Federal Travel Regulations.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
ordered that the Department of Agriculture, Washington, D.C.:
1. Cease and desist from:
(a) Directing the U.S. Department of Agriculture, Farmers Home
Administration, Little Rock, Arkansas not to comply with the terms
of Article 11 of the collective bargaining agreement, effective
June 22, 1983, between the Farmers Home Administration, Little
Rock, Arkansas and the National Federation of Federal Employees,
Local 108, the exclusive representative of its employees at the
Farmers Home Administration, Little Rock, Arkansas facility, which
provides for the payment of travel and per diem expenses.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Direct the Farmers Home Administration, Little Rock,
Arkansas to comply with the terms of Article 11 of the collective
bargaining agreement, effective June 22, 1983, between the Farmers
Home Administration, Little Rock, Arkansas and the National
Federation of Federal Employees, Local 108, which provides for the
payment of travel and per diem expenses to representatives of the
National Federation of Federal Employees, Local 108 in connection
with labor-management activities.
(b) Direct the Farmers Home Administration, Little Rock,
Arkansas to pay travel and per diem expenses to the bargaining
unit employees who incurred expenses at the negotiation sessions
of November 26 and December 13, 1984 and submit or previously
submitted appropriate claims for such payments under the terms of
Article 11 of the collective bargaining agreement which was
effective June 22, 1983, to the extent that such payments are
consistent with the terms of the collective bargaining agreement,
law and regulation, including the Federal Travel Regulations.
(c) Post at its Farmers Home Administration, Little Rock
Arkansas facility where bargaining unit employees represented by
the National Federation of Federal Employees, Local 108 are
located, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the Director and shall be posted
and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to ensure that such Notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
with it.
IT IS FURTHER ORDERED that those portions of the complaint alleging a
violation of the Statute by the Department of Argiculture, Farmers Home
Administration, Little Rock, Arkansas, be, and they hereby are,
dismissed.
Issued, Washington, D.C. December 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The pertinent provisions of Article 11 are set forth in the
appendix to this decision.
(2) See also 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)
and National Treasury Employees Union and Department of the Treasury,
Internal Revenue Service, 21 FLRA No. 19 (1986) petition for review
filed sub nom. Department of the Treasury, Internal Revenue Service v.
FLRA, No. 86-1290 (D.C.Cir. May 19, 1986), in which proposals
authorizing payment of various travel and per diem expenses were found
to be within the duty to bargain.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT direct the U.S. Department of Agriculture, Farmers Home
Administration, Little Rock, Arkansas not to comply with the terms of
Article 11 of the collective bargaining agreement, effective June 22,
1983 between the Farmers Home Administration, Little Rock, Arkansas and
the National Federation of Federal Employees, Local 108, the exclusive
representative at the Farmers Home Administration, Little Rock, Arkansas
facility, which provides for the payment of travel and per diem
expenses.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL direct the Farmers Home Administration, Little Rock,
Arkansas, to comply with the terms of Article 11 of the collective
bargaining agreement, effective June 22, 1983, between the Farmers Home
Administration, Little Rock, Arkansas and the National Federation of
Federal Employees, Local 108, which provides for the payment of travel
and per diem expenses to representatives of the National Federation of
Federal Employees, Local 108 in connection with labor-management
activities.
WE WILL direct the Farmers Home Administration, Little Rock, Arkansas
to pay travel and per diem expenses to the bargaining unit employees who
incurred expenses at the negotiation sessions of November 26 and
December 13, 1984 and who submit or have previously submitted
appropriate claims for such payments under the terms of Article 11 of
the collective bargaining agreement, effective June 22, 1983, to the
extent that such payments are consistent with the terms of the
collective bargaining agreement, law and regulation, including the
Federal Travel Regulations.
. . . (Acitvity)
Dated: . . . By. . . . (Signature) (title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VI, whose address is: Federal Office Building, 525
Griffin Street, Suite 926, Dallas, Texas 75202 and whose telephone
number is (214) 767-4996.
APPENDIX
11.1 LIMITATION: Official time, travel expenses, and per diem
granted by the Employer in this agreement will be given only to Union
officials, stewards and union contract negotiators who are employees of
the Employer. Solicitation of membership, the collection of dues, or
other internal business of the Union shall be conducted during the
non-duty hours of the employees concerned.
* * *
11.5 INFORMATION, BRIEFING OR ORIENTATION: The Employer agrees that
Union representatives who are FHA employees shall be granted official
time, ordinarily not to exceed sixteen (16) hours per person annually,
up to 160 hours each year to receive information, briefing, or
orientation relating to matters of mutual benefit to the Employer and
the employee in the employee's capacity as labor organization
representative. Prior approval of the program to be attended must be
given by the Employer.
11.6 CONFERRING WITH MANAGEMENT: Union officers will be allowed a
reasonable amount of official time to meet and confer with management
officials.
* * *
11.8 AUTHORIZED OFFICIAL TIME: Union officers and officials,
including stewards, shall be permitted reasonable time during working
hours without loss of leave or pay to represent employees in accordance
with this agreement. Use of official time will not be limited to the
confines of the office of the employee but will allow the representative
to travel in accordance with the needs of the individual case. Any
travel and per diem incurred by a representative in such cases will be
reimbursed by the Employer, in accordance with applicable travel
regulations. The Union and the Employer will endeavor jointly to keep
mileage and per diem expenses to a minimum.
(a) All negotiations and preparations therefore shall be
conducted on official duty time. This shall include time to
prepare and present matters to the Federal Mediation and
Conciliation Service and the Federal Service Impasses Panel.
(b) Reasonable time for receiving, investigating, preparing and
presenting a complaint, grievance or appeal must necessarily
depend on the facts and circumstances of each case -- e.g., number
and nature of allegations, number and complexity of supporting
specifics, the volume of supporting evidence, availability of
documents and witnesses and similar considerations.
(c) Reasonable time for preparations of information reports
required under 5 USC Section 7120 (c), including financial reports
and trusteeship reports, shall be accorded to Union officials.
The amount of time granted will be that necessary to gather data
and complete reports. Management and Union will accept mutual
responsibility to properly record this time on the Time and
Attendance Reports.