National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt (Authority decision, April 20, 1987)

Final FLRA decision. The Authority finds a proposal for union negotiators’ travel and per diem expenses negotiable and orders bargaining on request. An aggrieved person may seek judicial review of a final Authority order by petitioning an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The National Treasury Employees Union proposed that the Bureau of the Public Debt pay travel and per diem expenses for employee members of its negotiating committee while on official time. The Bureau argued that federal travel law and a Supreme Court ruling barred such a proposal. The Authority held that the Supreme Court had found payment was not automatically required, while agencies retained discretion to negotiate when union related travel served official business. It also found the proposal left room for required review of individual travel payments under federal travel rules. The Authority ordered bargaining without deciding the proposal’s merits.

Decision snapshot

• Authority: Negotiability under 5 U.S.C. § 7105(a)(2)(E) and travel expense rules under 5 U.S.C. § 5701 et seq.
• Outcome: Proposal within the duty to bargain; Bureau ordered to bargain on request.
• Key point: Federal travel law did not prevent negotiation over union negotiators’ expenses where payment remained subject to lawful authorization.

Full text (FLRA public release)

[ v26 p589 ]

26:0589(72)NG

The decision of the Authority follows:

26 FLRA No. 72

NATIONAL TREASURY EMPLOYEES UNION
Union

and

DEPARTMENT OF THE TREASURY
BUREAU OF THE PUBLIC DEBT
Agency

Case No. 0-NG-1348

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of the following proposal:

The employer agrees to pay the travel and per diem expenses incurred by employee members of the Union Negotiating Committee while using official time available under the terms of this agreement.

We find the proposal to be negotiable.

II. Positions of the Parties

The Agency contends that the proposal does not concern a condition of employment because it is inconsistent with the Travel Expense Act, 5 U.S.C. section 5701 et seq., the Supreme Court's decision in Bureau of Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983), and decisions of the Comptroller General. The Agency also contends that the proposal does not concern conditions of employment because it is not related to the working conditions of unit employees. Finally, the Agency argues that the proposal is inconsistent with Government-wide rules or regulations.

The Union contends that the proposal is an attempt to negotiate for the payment of travel and per diem expenses of employee union representatives by establishing criteria for determining that travel related to labor relations activity is sufficiently within the interest of the Government so as to constitute official business.

III. Analysis and Conclusion

A. The Proposal Concerns a Condition 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. March 27, 1986), the Authority rejected the same argument as that made here, namely, that a proposal relating to travel and per diem for employee union representatives did not concern conditions of employment of bargaining unit employees.

B. The Proposal Is Not Inconsistent With Federal Law and

Government-wide Rules and Regulations

In Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF), the Supreme Court held that payment of travel and per diem expenses for employees engaged in union representational activities was not required by the Statute. The Supreme Court did not hold that agencies and unions were precluded by law from negotiating over the payment of such expenses.

In Customs Service the Authority rejected the same argument which the Agency makes here, namely, that payment of travel and per diem expenses for union representatives is inconsistent with law and regulation and therefore non-negotiable. The Authority found that under the Travel Expense Act, 5 U.S.C. section 5701 et seq., and the Federal Travel Regulations (FTRs), 41 CFR Part 101-7, as interpreted by the Comptroller General, 46 Comp. Gen. 21 (1966), agencies have discretion to make determinations that travel in the context of union activity is sufficiently within the interest of the Government to constitute official business. Following this determination, otherwise proper travel and per diem expenses may be paid from agency funds. Nothing in these authorities requires that this necessary determination be made unilaterally by management and only on a case-by-case basis. An agency may determine, generally, that travel in the context of labor relations activities is sufficiently within the interest of government to constitute official business. Further, we reject the Agency's argument that it lacks discretion which is sufficient to place the matter within its duty to bargain. We find that the "certification process," described by the Agency as the act of declaring a particular circumstance to be in the primary interest of the United States, is an exercise of its discretion and is subject to the duty to bargain.

Moreover, the Authority has consistently held that in the absence of a demonstration to the contrary, proposals providing for the payment of travel and per diem expenses for union representatives would not prevent management from making individual case-by-case determinations as to the propriety under the FTRs of authorizing particular payments. See, for example, National Labor Relations Board Union and National Labor Relations Board, 22 FLRA No. 55 (1986), petition for review filed sub nom. National Labor Relations Board v. FLRA, No. 86-1504 (D.C. Cir. Sept. 8, 1986). There is nothing in the proposal in this case which prevents the Agency from complying with the requirements of law and regulation. The proposal was not intended to, and could not, require the Agency to use specific authorization procedures and practices relating to actual travel which conflict with the FTRs. It would not foreclose individual determinations regarding the propriety under the FTRs of authorizing particular travel and expenses. To the extent that case-by-case determinations are required under law and regulation, this proposal would not be inconsistent with such procedures. See Customs Service, 21 FLRA No. 2, slip op. at 6-7.

Based on the foregoing analysis, we find that the proposal concerns a condition of employment and is not inconsistent with law or Government-wide regulation. Therefore, the proposal is within the duty to bargain. /*/

IV. Order

The agency must upon request, or as otherwise agreed to by the parties, bargain on the Union's proposal.

Issued, Washington, D.C. April 20, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, III
Henry B. Frazier, III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

(*) In finding that the proposal is within the duty to bargain, we express no judgment as to its merits.