National Labor Relations Board Union and NLRB Board and Office of General Counsel (Authority decision, July 10, 1986)

Final FLRA decision. The Authority orders bargaining over one travel alternative and dismisses the others. 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 NLRB union offered three alternative proposals for paying travel and per diem to employee representatives serving on committees, in consultations, and in negotiations. The Authority found the first alternative inconsistent with travel law and regulations. It found the second within agency discretion and ordered bargaining over it. It dismissed review of the first and third alternatives.

Decision snapshot

• Authority: 5 U.S.C. § 7103(a)(14), 5 U.S.C. § 7117.
• Outcome: Alternative 2 held negotiable; Alternatives 1 and 3 dismissed.
• Key point: Payment proposals remained bargainable when framed within the agency’s discretion and travel rules.

Full text (FLRA public release)

[ v22 p486 ]

22:0486(50)NG

The decision of the Authority follows:

22 FLRA No. 50

NATIONAL LABOR RELATIONS BOARD
UNION
Union

and

NATIONAL LABOR RELATIONS BOARD,
THE BOARD AND OFFICE OF THE
GENERAL COUNSEL
Agency

Case No. 0-NG-1119

DECISION AND ORDER ON NEGOTIABILITY ISSUES

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 three alternative proposals presented by the Union involving the payment by the Agency of travel and per diem expenses to employees when engaged in representational activities.

II. Union Proposals

Alternative Proposal Number 1

During the term of the Agreements, the Agency will pay the travel and per diem expenses of NLRBU employee representatives participating on the Incentive Awards, EEO and Health and Safety Committees and in consultations and negotiations.

Alternative Proposal Number 2

(a) During the term of the Agreements, the participation of the NLRBU in the activities of the Incentive Awards, EEO and Health and Safety Committees will be considered in the primary interest of the government by the Agency and the Agency will pay the travel and per diem expenses of the NLRBU employee representatives serving on such committees.

(b) During the term of the Agreements, the payment of the travel and per diem expenses of the NLRBU employee representatives when they attend consultations or engage in negotiations will be considered in the primary interest of the government by the Agency and the Agency will pay such expenses.

Alternative Proposal Number 3

(a) During the term of the Agreements, when the Agency determines that the participation of the NLRBU in the scheduled activities of the Incentive Awards, EEO and Health and Safety Committees is in the primary interest of the government, the Agency will pay the travel and per diem expenses of NLRBU employee representatives serving on such committees.

(b) During the term of the Agreements, when the Agency determines that the payment of the travel and per diem expenses of NLRBU employee representatives participating in consultations or engaged in negotiations is in the primary interest of the government, the Agency will pay such expenses.

III. Positions of the Parties

As explained by the Union, Alternative Number 1 seeks to obligate the Agency to pay the travel and per diem expenses of Union employee representatives located at the Agency's Washington, D.C. headquarters who by law and agreement are entitled to official time for the meeting referred to in the proposal. In presenting this Alternative, the Union states that it presupposes the negotiability of travel and per diem expenses without regard to the "primary interest". /1/ The Union states further that Alternative Number 2 is intended to apply only if Alternative Number 1 is determined to be nonnegotiable because of primary interest test must be made in order for travel and per diem expenses to be paid. Finally, Alternative Number 3 is intended to apply only if Alternative Numbers 1 and 2 are determined to be nonnegotiable because of primary interest test must be made and such a test is in the sole discretion of the Agency to make.

The Agency contends that all of the Alternatives are nonnegotiable because the reimbursement of Federal employees for travel expenses is a matter specifically provided for by statute and thus is not a condition of employment within the meaning of section 7103(a)(14) of the Statute. The Agency also contends that Alternative Number 1 is nonnegotiable because it disregards the primary interest test and thus conflicts with law and Government-wide rules and regulations, and that Alternative Number 2 is nonnegotiable because the determination of primary interest cannot be made bilaterally or in advance of actual situations.

IV. Analysis

A. "Conditions of Employment"

The Agency makes an essentially identical "conditions of employment" argument to that made by the agency in U.S. Customs Service (see fn. 1). The Authority rejected that argument in U.S. Customs Service and it is rejected here for the same reasons set forth in that case.

B. "Primary Interest Test"

It is well-established that a proposal which concerns a condition of employment is negotiable only where it does not otherwise conflict with applicable statutory and regulatory provisions. In terms of the negotiability of travel and per diem expenses, the Authority has determined that conformance with the requirements specified by the Comptroller General in administering and interpreting the Travel Expense Act is a necessary condition for finding that a proposal involving the payment of travel expenses and per diem allowances is negotiable. See U.S. Customs Service. The Comptroller General has stated that an agency is not precluded from making payment of 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. 46 Comp. Gen. 21 (1966). However, insofar as the Union specifies that Alternative Number 1 presupposes the negotiability of travel and per diem expenses without regard to the "primary interest test," the Authority agrees with the Agency's contention that this formulation of the proposal conflicts with law and Government-wide regulation.

As to the Agency's contention that Alternative Number 2 is nonnegotiable because the determination of primary interest cannot be made bilaterally or in advance of actual situations, the Authority must disagree. In U.S. Customs Service the Authority specifically found that determinations concerning whether to make payments for otherwise proper travel expenses and per diem allowances are within the discretionary administrative authority of an agency. Moreover, it is well-established that insofar as an agency has discretion regarding a matter affecting conditions of employment, it is obligated under the Statute to exercise that discretion through negotiations unless precluded by regulatory or statutory provisions. National Treasury Employees Union, Chapter 6 and International Revenue Service, New Orleans District, 3 FLRA 747, 759-60 (1980). In this case, the Agency has not cited any legal or regulatory provision which would absolutely prohibit it from exercising through negotiations the discretion which it possesses to determine whether, and under what circumstances, travel attendant to labor-management relations activities is in the primary interest of the Government. /2/

While the Authority found in U.S. Customs Service that the determination that such payments are in the primary interest of the Government is a necessary (and itself bargainable) condition for the negotiability of proposals requiring the payment of travel and per diem expenses, a primary interest determination is not the only condition for finding such proposals negotiable. As previously mentioned, such proposals must also be in conformance with all other applicable regulatory and statutory provisions. In this case the Agency does not contend that Alternative Number 2 would conflict with, for example, the requirements of the Federal Travel Regulations (FTRs)other than those relating to the determination of primary interest, or with any other applicable laws or regulations. The Authority notes that there is nothing in Alternative Number 2 or the submissions of the parties which indicates that its provisions are to be applied in any manner which is inconsistent with applicable legal and regulatory requirements. Alternative Number 2 would not require the Agency to use, for example, specific authorization procedures and practices relating to travel which conflicted with the FTRs. It would not forclose individual determinations regarding the propriety under the FTRs of authorizing particular travel and expenses. Finally, to the extent that case-by-case determinations are required under law and regulation, this proposal would not be inconsistent with such procedures. See U.S. Customs Service.

The Union states that Alternative Number 3 is intended to apply only if Alternative Numbers 1 and 2 are determined to be nonnegotiable. Given the results of the foregoing analysis with respect to Alternative Number 2, the Authority finds it unnecessary to address further the negotiability of Alternative Number 3.

V. Conclusion

The Authority finds that all three alternative formulations of the Union proposal concern a condition of employment. Alternative Number 1 conflicts by law and Government-wide regulation, and, therefore, is outside the duty to bargain. Alternative Number 2 is within the Agency's administrative discretion, and is not inconsistent with law or Government-wide regulation. Therefore, it is within the duty to bargain. /3/

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 be the parties) bargain concerning Union Alternative Proposal Number 2. Furthermore, IT IS ORDERED that the Union's petition for review as to Union Alternative Proposals 1 and 3 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

--------------- FOOTNOTES$ ---------------

(1) The "primary interest test" refers to the Comptroller General's decision, 46 Comp. Gen. 21 (1966), interpreting the provisions of the Travel Expense Act, 5 U.S.C. Sections 5701, et seq., that an agency is not precluded from making payment of travel expenses and per diem allowances to union representatives upon a determination it serves the convenience of the agency or is otherwise in the primary interest of the Government. For a complete discussion of the negotiability of the payment of travel and per diem expenses, see the Authority's lead decision, 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).