National Weather Service Employees Organization and National Weather Service (Authority decision, July 10, 1986)

Final FLRA decision. The Authority dismisses the negotiability petition. An aggrieved person may petition an appropriate United States court of appeals for review within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The union proposed travel and per diem for employee negotiators whose duty stations were outside the Washington area. The Authority found that travel payment was a condition of employment, but the proposal as presented did not call for the required agency determination that payment was in the government's primary interest. The union did not rebut the agency's reading of its proposal. The Authority found it inconsistent with travel law and regulations and dismissed the petition.

Decision snapshot

• Authority: 5 U.S.C. § 5701, 5 U.S.C. § 7117.
• Outcome: Travel and per diem proposal found outside the duty to bargain.
• Key point: The proposal lacked the required government-interest determination on the record before the Authority.

Full text (FLRA public release)

[ v22 p492 ]

22:0492(51)NG

The decision of the Authority follows:

22 FLRA No. 51

NATIONAL WEATHER SERVICE EMPLOYEES
ORGANIZATION, MEBA, AFL-CIO
Union

and

DEPARTMENT OF COMMERCE
NATIONAL WEATHER SERVICE
Agency

Case No. 0-NG-1116

DECISION AND ORDER ON NEGOTIABILITY ISSUE

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 concerns the following Union proposal which arose during the course of negotiations on ground rules for a new collective bargaining agreement between the parties:

Travel and per diem will be granted only to those bargaining unit employees identified in accordance with this agreement whose official duty station is outside the Washington, D.C. commuting area. On Thursday, Friday and Saturday of the previous week, team members will be granted official time for preparation if he/she would normally be in a duty status. No per diem will be paid for preparation time. (Only the underscored portion is in dispute.)

II. Position of the Parties

The Agency essentially contends that the proposal is outside the scope of bargaining because it does not concern conditions of employment within the meaning of section 7103(a)(14) of the Statute. In support of this contention it argues that the subject of travel expenses is specifically provided for by the Travel Expense Act, 5 U.S.C. Sections 5701, et seq. In addition, the Agency contends that the disputed part of the proposal is inconsistent with certain Comptroller General decisions interpreting and applying the Travel Expense Act.

The Union states that the intent of the disputed portion of the proposal is to provide its negotiators, who are employed in the bargaining unit throughout the country, travel and per diem expenses when they come to Washington, D.C. to negotiate over a new collective bargaining agreement. The Union waived its right to file a response to the Agency's statement of position.

III. Analysis

Subsequent to the filings in this case the Authority issued its decision 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). There the Authority rejected the agency's contention that the proposal in that case, which required the payment of travel and per diem expenses for employees serving as union negotiators, involved a matter specifically provided for by Federal statute so as to be expected from the definition of conditions of employment. For the reasons and cases cited in U.S. Customs Service at 7-8, the Authority also rejects this same contention with respect to the present case. In addition, as we explained more fully in that decision, the Comptroller General, who administers and interprets the Travel Expense Act, has ruled that an agency is not precluded from making payment of otherwise proper travel expenses and per diem allowances to union representatives upon a determination that it serves the convenience of the agency or is otherwise in the primary interest of the Government. See 46 Comp. Gen. 21 (1966). The Authority found that determinations concerning whether to make such payments are within the discretionary administrative authority of an agency and that existing Authority precedent obligates an agency to exercise that discretion through negotiation unless precluded by regulatory or statutory provisions.

In U.S. Customs Service we relied upon the union's explanation that its proposal sought agreement as to what categories of union activities shall be construed to be in the primary interest of the Government. The union specifically stated that once a determination is made that an activity is in the primary interest of the Government, "of course, all the specific Travel Regulations apply." U.S. Customs Service at 7. This factor was crucial in our decision that the proposal in that case was negotiable because it was clear that the proposal was to be implemented in a manner consistent with governing statutory and regulatory requirements. For example, the proposal was not intended to require the agency to authorize either specific travel or expenses which did not comport with the regulatory requirements and restrictions stated in the Federal Travel Regulations (FTRs). The proposal was not intended to, and could not, require the Agency to use specific authorization procedures and practices relating to actual travel which conflicted with the FTRs. It would not foreclose individual determinations regarding the propriety under the FTRs of authorizing particular travel and expenses. Moreover, to the extent that case-by-case determinations are required under law and regulation, the proposal would not be inconsistent with such procedures. On this basis, the Authority rejected the contention of the agency in that case that the proposal was inconsistent with Federal law and Government-wide regulations.

The language of the proposal in this case is similar to the one held negotiable in U.S. Customs Service. However, for the following reason the Authority must find this proposal outside the duty to bargain. In its statement of position, in addition to its other contentions, the Agency also states that the proposal cannot be read as a demand to negotiate its determination of whether the payment of travel and per diem is in the "primary interest" of the Government, the determination required by the Comptroller General in 46 Comp. Gen. 21 (1966). Although the Union was given the opportunities normally afforded parties in accordance with the Authority's Rules and Regulations, it specifically waived its right to file a response to the Agency's contentions. The Union thereby failed to rebut the Agency's interpretation that the proposal is not intended as a demand to negotiate the Agency's determination of whether the payment of travel and per diem is in the primary interest of the Government. Under these particular circumstances, the Authority is constrained to accept the Agency's interpretation as to the meaning of the proposal. If the Union's intent is different than established in the record of this case, then it may, of course, revise its proposal at an appropriate time to more accurately reflect its intent so as to render the proposal negotiable. See, for example, 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); 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).

IV. Conclusion

Based on the reasons and cases cited in U.S. Customs Service, 21 FLRA No. 2 (1986), the Authority finds that the Union proposal concerns a condition of employment. However, based on the foregoing analysis, the Authority finds that the proposal is inconsistent with law and Government-wide regulations. Therefore, the proposal is outside the duty to bargain.

V. Order

Accordingly, pursuant to section 2424.10 of the Authority's Rules and regulations IT IS ORDERED that the Union's petition for review be, and it hereby is dismissed.

Issued, Washington, D.C., July 10, 1986.
/s/ Jerry L Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY