30:0690(87)NG - NTEU and Treasury, IRS -- 1987 FLRAdec NG

 30 FLRA NO. 87
 30 FLRA 690

 31 DEC 1987

NATIONAL TREASURY
EMPLOYEES UNION

             Union

       and

DEPARTMENT OF THE
TREASURY, INTERNAL
REVENUE SERVICE

              Agency

Case No. O-NG-1371

DECISION AND ORDER ON NEGOTIABILITY ISSUES

     I. Statement of the Case

     This case is 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) and involves
the negotiability of two proposals which concern (1) employee use
of the General Services Administration's (GSA) "city pairs"
program for travel conducted while engaged in labor-management
activities and (2) the earning of "credit hours" by employees
while engaged in labor-management activities. We find that
Proposal 1 is nonnegotiable because it is inconsistent with a
Government-wide rule or regulation. We find that Proposal 2 is
negotiable.

     II. Proposal 1

     Union representatives, e.g. stewards, chief stewards, and
chapter presidents, will be permitted to use the GSA city-pairs
air travel program for all labor-management travel for which
official time is granted and where the agency is not otherwise
reimbursing the union official for the travel expenses.

     Where the union chooses to use the program, it will
reimburse the agency the cost of the ticket.

     Where the agency is reimbursing the union the cost of the
travel, the union will be free to reject the use of the
"city-pairs" program without adverse impact.

     A. Positions of the Parties

     The Agency asserts that this proposal is nonnegotiable
because it is inconsistent with law, the Travel Expense Act, and
Government-wide regulations, the Federal Travel Regulations and
Federal Property Management Regulation (FPMR) A-30. The Agency
also asserts generally that the payment of travel and per diem
expenses to Union negotiators is nonnegotiable and requests the
Authority to reconsider its decision in National Treasury
Employees Union and Department of the 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. Mar. 27, 1986).

     The Union asserts that because the proposal covers travel by
Union representatives only while they are on official time
granted under section 7131 of the Statute, the travel involved
qualifies as "official" travel within the context of the laws and
regulations governing "official government travel." Therefore,
the Union contends that the proposal is negotiable because it is
consistent with applicable laws and regulations.

     B. Analysis and Conclusions

     The "city pairs" program applies only to individuals who are
engaged in official travel conducted at Government expense. Under
the "city pairs" program GSA has entered into contracts with U.S.
certified carriers to furnish airline/rail passenger
transportation for official Government travel between selected
U.S. and international cities/airports at reduced rates. 1 Under
the Federal Travel Regulations (FTRs), use of the discount fares
offered under the "city pairs" program is generally mandatory for
authorized air travel between "city pairs." FTRs, 1-2.2c(1)(b).
The FTRs also require all agencies, with exceptions not relevant
here, to follow the policies, procedures and requirements
established in FPMR Temporary Regulation A-22 for use of contract
carriers for official air travel between "city pairs." FTRs,
1-3.4b. FPMR Temporary Regulations A-22 has been supplanted by
FPMR A-30. 51 Fed. Reg. 40805. The stated purpose of FPMR A-30
 is to govern the use of carriers under contract to GSA
to provide specified transportation services to "Federal
employees and other persons authorized to travel at Government
expense." FPMR A-30, Attachment A, section 1.

     The Union does not dispute that the "city pairs" program is
limited to "official Government travel." However, it argues that
any travel conducted while on official time granted under section
7131 of the Statute automatically qualifies as official
Government travel. We disagree. Employees are not necessarily on
official business or in an official capacity for purposes of
engaging in "official" travel simply because they are engaging in
union representational activity on official time. See Bureau of
Alcohol, Tobacco and Firearms v. Federal Labor Relations
Authority, 464 U.S. 89  (1983). Under some circumstances, such
employees may be considered to be engaged in official business
and, consequently, permitted to travel at Government expense. See
National Treasury Employees Union and Department of the 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. Mar. 27, 1986). This proposal,
however, is not so limited. It would apply without regard to the
particular circumstances to all employees who are traveling while
on official time granted pursuant to section 7131 of the
Statute.

     We also reject the Union's argument that the proposal is
consistent with governing regulations because employees traveling
on official time are analogous to the types of persons authorized
in FPMR A-30 to use the "city pairs" program on a permissive
basis. 2 The provision relied upon by the Union applies
to specific enumerated categories. The Union has shown no  basis
in the regulation or otherwise which would indicate that the
categories are merely illustrative so that the provision may be
applied to persons in analogous situations. Moreover, the persons
in the specified categories are "Federal employees and other
persons authorized to travel at Government expense" and clearly
come within the confines of the "city pairs" program. FPMR A-30,
Attachment A, section 1. Employees who are traveling on official
time granted under section 7131, but not at Government expense,
do not.

     Because the proposal is inconsistent with the policies,
procedures and requirements established in FPMR A-30, the
proposal also is inconsistent with section 1-3.4b of the FTRs,
which mandates compliance with the governing FPMR. It is also
inconsistent with the FTRs insofar as it would allow employees
traveling at Government expense while on official time to reject
use of the "city pairs" program. Section 1-2.2c(l)(b) of those
regulations requires mandatory use of the "city pairs" program
for air travel between "city pairs." Under that program,
exceptions to use of contract carriers are allowed only under
circumstances specified in FPMR A-30, Attachment A, section 9.b.
This proposal would require that exceptions be allowed without
regard to whether those circumstances were present. The FTRs are
a Government-wide regulation. See, for example, National
Federation of Federal Employees, Local 29 and U.S. Army Engineer
District, Kansas City, Missouri, 13 FLRA  23 (1983). Because the
proposal is inconsistent with a Government-wide regulation, it is
not within the duty to bargain.

     In view of this conclusion, we do not pass on the Agency's
contention that FPMR A-30, itself, constitutes a Government-wide
regulation. Insofar as the Agency raises general arguments
concerning the payment of travel and per diem expenses which were
addressed in the Authority's decision in U.S. Customs Service, 21
FLRA  6, we reject them here for the reasons expressed
in that decision. Also, we decline to reconsider our decision in
that case as the Agency requests.

     III. Proposal 2

     Union representatives, e.g. stewards, chief stewards, and
chapter presidents, may earn credit hours while performing the
duties listed in Section 2D above, e.g. attending formal meetings
with managers, attending grievance meetings, etc. so long as they
comply with all other requirements of the credit hours program,
e.g. securing their manager's agreement that the time may be
worked as credit hours, and so long as they are otherwise on a
credit hour program in their normal work schedule.

     Union representatives may earn credit hours while performing
the duties listed in Section 2F above, e.g., investigating
grievances, interviewing witnesses, conferring about contract
problems, so long as they comply with all other requirements of
the credit hour program and so long as they are otherwise on a
credit hour program in their normal work schedule.

     A. Positions of the Parties

     The Agency argues that this proposal is nonnegotiable
because it conflicts with the Federal Employees Flexible and
Compressed Work Schedules Act (the Act). The Union denies that
this proposal conflicts with the Act.

     B. Analysis and Conclusions

     In National Treasury Employees Union, Chapter 65 and
Department of the Treasury, Internal Revenue Service, 25 FLRA 
373 (1987), we found that a proposal which would allow employees
to earn credit hours for time spent in labor-management
activities was negotiable. In that decision, we found that the
Act allows employees to earn credit hours, up to specified
limits, by working beyond their basic work requirement on a given
day. The credit hours may then be applied toward meeting the
employee's basic work requirement at some other time. We found
that time spent engaging in representational duties on official
time which fell within the employee's regularly
scheduled flexible tour of duty constituted duty time and could
be counted toward earning credit hours under the Act. We noted
that our conclusion in that case was not inconsistent with other
decisions in which the Authority had held that employees could
not receive overtime compensation for labor-management activities
performed outside their regular tour of duty because such hours
constituted nonduty time. 3

     Unlike the proposal in Internal Revenue service, 25 FLRA 
373, the proposal in this case is not limited to allowing credit
hours to be earned for participation in management controlled or
initiated meetings. This proposal would also allow credit hours
to be earned for activities conducted on "bank time." Based on
the record, we conclude that "bank time" is simply a form of
official time granted pursuant to section 7131(d) of the Statute.
Inasmuch as "bank time" activities, like other official time
activities, may be performed within the employee's regularly
scheduled flexible tour of duty and, consequently, on duty time,
the holding in Internal Revenue Service applies to "bank time"
activities.

     This proposal, like that in Internal Revenue Service, would
allow employees to earn credit hours based on the performance of
labor-management activities while on official time within their
regularly scheduled flexible tour of duty. For the reasons
expressed in Internal Revenue Service, which are summarized
above, we conclude that this proposal does not conflict with the
Federal Employees Flexible and Compressed Work Schedules Act. It
is within the duty to bargain. We decline to reconsider our
decision in Internal Revenue Service as the Agency requests.


     IV. Order

     The Union's petition for review as to Proposal 1 is
dismissed. The Agency shall upon request, or as otherwise agreed
to by the parties, bargain on Proposal 2. 4

     Issued, Washington, D.C., December 31, 1987.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY 

FOOTNOTES

     Footnote 1 FPMR (Federal Property Management Regulation)
A-30,   Attachment A, section 1. FPMR A-30 appears at 41 C.F.R.,
Chapter 101,   subchapter A, appendix.

     Footnote 2 FPMR A-30 provides at Attachment A, section 3.b.:
b. The following persons are exempt from the mandatory use of
this   regulation; however, they are authorized to obtain
services under this   regulation at the option of the contractors
when seating space is   available:       (1) Uniformed members of
the Public Health Service, the National   Oceanic and Atmospheric
Administration, and the U.S. Coast Guard; (2) Members and
employees of the U.S. Congress;       (3) Employees of the
judicial branch of the Government;       (4) Employees of the
U.S. Postal Service;       (5) Foreign service officers;      
(6) Cost-reimbursable contractors working for the Government; and
(7) employees of any agency having independent statutory
authority to   prescribe travel allowances and who are not
subject to the provisions   of 5 U.S.C. 5701 through 5709.

     Footnote 3 Social Security Administration and American
Federation   of Government Employees, Local 1164, AFL-CIO, 19
FLRA  43 (1985); Patent   Office Professional Association and
Patent and Trademark Office,   Department of Commerce, 21 FLRA 
580 (1986). The decisions in those   cases relied on the District
Court decision, NTEU v. Gregg, No.  83-546   (D.D.C. Sept. 28,
1983), which the Agency cites in support of its   position in
this case. Like Social Security Administration and Patent and
Trademark Office, NTEU v. Gregg involved the performance of  
labor-management activities on nonduty time. Internal Revenue
Service   involved the performance of labor-management activities
on duty time. Based on that difference, Internal Revenue Service
is distinguishable   from NTEU v. Gregg as well as Social
Security Administration and Patent   and Trademark Office.

     Footnote 4 In finding that Proposal 2 is within the duty to 
bargain, we make no  judgment as to its merits.