[ v21 p6 ]
21:0006(2)NG
The decision of the Authority follows:
21 FLRA No. 2
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
DEPARTMENT OF THE TREASURY,
U.S. CUSTOMS SERVICE
Agency
Case No. 0-NG-293
9 FLRA 629
DECISION AND ORDER ON REMAND
I. Statement of the Case
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit.
The sole question presented is whether payment by an agency of travel
expenses and per diem allowances incurred by employees using official
time in the conduct of labor-management relations is within the duty to
bargain under the Federal Labor-Management Relations Statute (the
Statute).
In a previous decision in this case, National Treasury Employees
Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 629
1982 , the Authority found the following Union proposal to be within the
duty to bargain.
The employer agrees to pay the travel expenses incurred by
employees while using official time available under the terms of
this agreement.
The original finding of negotiability was premised upon the
conclusion that where "official time" had been granted by the Statute,
or negotiated between the parties, employees using it are on "official
business" and thus, under law, are entitled to travel expenses and per
diem allowances. See Interpretation and Guidance, 2 FLRA 265 (1979).
That interpretation was rejected by the Supreme Court in Bureau of
Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983). In
footnote 17 at p. 107 of its decision the Supreme Court stated that,
"unions may presumably negotiate for such payments in collective
bargaining as they do in the private sector." In light of the decision,
the Authority requested, and the Court of Appeals ordered, remand of the
instant case. Upon remand, the Authority issued a "Notice of Reopened
Proceedings and Request for Statements of Position" in which it
solicited a statement of position from each of the parties as to the
effect of the Supreme Court's decision on the negotiability of the above
proposal.
II. Positions of the Parties
As explained by the Union, the proposal seeks agreement as to what
categories of union activities shall be construed to be in the primary
interest of the Government and, hence, "official business" for purposes
of reimbursement of incidental and otherwise proper travel expenses.
Once such a determination is made the Union acknowledges that "of
course, all the specific Travel Regulations apply."
The Agency contends that the proposal is not within the duty to
bargain for three independent reasons:
a. It does not concern conditions of employment within the meaning of
section 7103(a) (14) of the Statute because payment of travel expenses
is specifically provided for by law;
b. it is inconsistent with Federal law and Government wide
regulations;
c. it interferes with its right to determine its budget under section
7106(a)(1).
III. Analysis
A. "Condition of Employment"
The proposal clearly involves a condition of employment not excepted
from the definition thereof. Representation of employees in matters
concerning their employment affects the "working conditions" of those
employees. American Federation of Government Employees, AFL-CIO and Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
604 (1980) (Union Proposal II), enf'd as to other matters sub nom.
Department of Defense v. FLRA, 659 F.2d 1140(D.C. Cir. 1981, cert.
denied sub nom. American Federation of Government Employees, AFL-CIO v.
FLRA, 455 U.S. 945 (1982). For relevant private sector decisions
similarly finding such expenses to be conditions of employment, see
Midstate Telephone Corporation v. NLRB, 706 F.2d 401 (2nd Cir. 1983) and
Axelson, Inc. v. NLRB, 599 F.2d 91 (5th Cir. 1979).
Whether travel expenses incurred in the conduct of labor-management
relations activity are payable from federal funds is not specifically
addressed by the Statute or the Travel Expense Act, 5 U.S.C. 5701, et
seq. The Statute and its legislative history are silent on this
subject. Indeed if it were not, the present litigation might well be
unnecessary. While the Travel Expense Act governs the general subject
of payment of travel expenses for employees traveling on "official
business," it does not specifically address payment for travel engaged
in while conducting labor-management activity. Thus the Agency' s
contention that the proposal involves a matter specifically provided for
by Federal statute so as to be excepted from the definition of
conditions of employment must be rejected.
B. "Inconsistent with Federal Law or Government-Wide Rules or
Regulations"
The thrust of the Agency' s argument is that because no law
specifically provides for such payment of expense, it must be inferred
that such payments are precluded. /1/ It further argues that the
Federal Travel Regulations (hereinafter FTRs) limit payment to those
travel expenses which are essential to the transacting of official
business, and that the granting of "official time" does not confer
"official business" status on travel undertaken while on official time.
/2/ It contends that a determination as to whether an employee is on
"official business" is dependent on the particular facts involved in
each individual situation. Consequently, such a determination is not a
matter of "unlimited discretion" on the part of the Agency. /3/
The provisions of the Travel Expense Act and the FTRs are set forth,
in relevant part, in appendices A and B. Briefly summarized the
statutory provisions state that federal employees traveling on "official
business" are entitled to appropriate expenses and allowances. The
regulations in turn limit such reimbursement to that" which is necessary
to accomplish the purposes of Government effectively and economically."
In exercising his authority to render decisions on questions
involving payments and vouchers pursuant to 31 U.S.C. 3529 (1982 ed.),
the Comptroller General of the United States administers and interprets
the Travel Expense Act. Neither the Travel Expense Act nor the
regulations specifically define the term "official business." As a
general proposition the Comptroller General has ruled that payment is
authorized where the activity involved was sufficiently in the interest
of the United States so as to be regarded as official business. 44
Comp.Gen. 189 (1964).
In the labor-relations context, the Comptroller General has applied a
similar standard. Prior to passage of the Statute, an agency was not
precluded from making payment of travel expenses and per diem allowances
to union representatives upon a determination that it served the
convenience of the agency or was otherwise in the primary interest of
the Government. BATF, supra, pp. 100-01 n. 11 and 107 n. 17 citing 46
Comp.Gen. 21 (1966). /4/
Thus determinations concerning whether to make such payments are
within the discretionary administrative authority of an agency. The
Authority has consistently held 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 negotiation unless
precluded by regulatory or statutory provisions.
National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 748, 759-60 (1980). Moreover,
nothing in the Statute limits this duty to matters over which an agency
has total discretion. American Federation of Government Employees,
AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C.,
8 FLRA 409 (1982. In the instant case, the Agency has not cited any
legal or regulatory provision, nor is any apparent, 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 sufficiently within the interest of the United States so as to
constitute official business. /5/
The Union has acknowledged that payment of any travel expenses
flowing from this proposal, if agreed upon, would be subject to the
provisions of the FTRs. /6/ Hence, we conclude the proposal would not
require the Agency to authorize either specific travel or expenses which
do not comport with the regulatory requirements and restrictions. 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. To the extent that
case-by-case determinations are required under law and regulation, this
proposal would not be inconsistent with such procedures. Cf. U.S.
Department of Justice v. FLRA, 727 F.2d 481, 489-90 (5th Cir. 1984
(wherein the Court held in the circumstances presented that law and
regulations required case-by-case determination as to method or means of
travel used by employees). Thus the Agency's contention that the
proposal is inconsistent with Federal law, and Government-wide
regulations must be rejected.
C. "Conflicts with the Right to Determine (the Agency's) Budget"
The Authority has previously held that interference with the right of
an agency to determine its budget under section 7106 insulates the
negotiation process in two fundamental respects. First, an agency
cannot be required to negotiate particular budgetary matters relating to
the determination of the programs and operations to be included in its
estimation of proposed expenditures and the amounts required to fund
them. Second, where an agency makes a substantial demonstration that a
significant and unavoidable increase in costs, not off set by
compensating benefits, will result, an otherwise negotiable proposal may
be found to violate this section 7106(a) right of the Agency. American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, supra, at page 608.
The Agency acknowledges that the Union Proposal does not expressly
require that a line item be added to the Agency' s budget and tacitly
concedes that it would not prescribe an amount to be allocated in the
Agency's budget for programs or operations. The Agency argues (without
specific support) that the proposal would entail significant and
unavoidable costs which are not offset by compensating benefits to the
Agency. It only claims generally that the significance and
unavoidability of increased costs attendant to the payment of travel
expenses resulting from labor-management relations activities has been
"officially recognized." /7/
No specific information or estimates of the financial impact of the
proposal have been presented. Based on this record, the Agency's poorly
supported assertion cannot provide a ground for concluding that there is
a substantial demonstration that the proposal would result in a
significant and unavoidable increase in costs. Therefore, its
allegation that the proposal is inconsistent with its right to determine
its budget cannot be sustained. American Federation of Government
Employees, AFL-CIO, Local 32 and Office of Personnel Management,
Washington, D.C., 6 FLRA 423 1981), aff'd mem. sub nom. Office of
Personnel Management v. FLRA, 706 F.2d 1229 D.C. Cir. 1983.
IV. Conclusion
Based on the foregoing analysis, the Authority finds that the Union
Proposal concerns a condition of employment which 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. /8/ In making this finding, it is noted that while the Agency
must bargain in good faith over the disputed proposal it is under no
obligation to agree to this particular formulation. Consideration by
management of the consequences of the proposal are a legitimate aspect
of the bargaining process. Should matters of concern to the Agency,
such as perceived potential for increased expenditures, prevent the
parties from reaching agreement, such considerations could be presented
to the Federal Service Impasses Panel in a proceeding pursuant to
section 7119 of the Statute.
V. 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 by the parties) bargain concerning the Union
Proposal.
Issued, Washington, D.C., January 31, 1986
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ To the extent the Agency contends that the expenditure of funds
to pay the travel expenses and per diem allowances of Agency employees
using official time to conduct labor-management relations is unsupported
by a congressional appropriation of funds, the claim is without merit.
In September 1979, Congress appropriated funds for the "necessary
expenses" of the Customs Service for fiscal year 1980. Treasury, Postal
Service, and General Government Appropriations Act of 1980, Pub.L. No.
96-74, 93 Stat. 559, 560. A line item for "travel and transportation of
persons" was included in the Customs Service's budget estimate for that
fiscal year. Budget of the United States Government, Fiscal Year 1980,
Appendix, at p. 762. Subsequent to fiscal year 1980 the activities of
the Customs Service, including travel of employees, have been carried
out under continuing resolutions. See, e.g., Continuing Resolution of
1984, Pub.L. No. 98-151, 97 Stat. 964. Such congressional appropriation
acts, which presumably have supported travel by employees representing
the Agency in connection with labor relations activities, also would
support the disbursement of funds for such travel by Agency employees as
may occur under the Union's proposal in this case.
/2/ The FTRs have been held to be Government-wide rules or
regulations within the meaning of the Statute. National Federation of
Federal Employees, Local 29 and U.S. Army Engineer District, Kansas
City, Missouri, 13 FLRA 23(1983).
/3/ The Agency incorporates by reference guidance issued by the
Office of Personnel Management (OPM) that a determination that specific
travel related to union activities is in the primary interest of the
Government and, hence, constitutes "official business" is a decision
reserved solely and exclusively to agencies. FPM Letter 711-162
(Subject: Payment of Travel and Per Diem Expenses for Employee
Negotiators Representing Unions in Collective Bargaining) dated January
19, 1984. The Authority notes that such guidance is merely that and is
not binding on the various federal agencies. See National Treasury
Employees Union v. Devine, 587 F. Supp. 960, 963 (D.D.C. 1984); see
also Federal/Postal/Retiree Coalition v. Devine, 751 F.2d 1424 (D.C.
Cir. 1985).
/4/ Relying upon the principles enunciated by the Comptroller General
in that opinion, the Federal Labor Relations Council, established by
E.0. 11491 to administer labor-management relations in the Federal
service, held a proposal seeking travel costs for certain contract
administration activities to be within the duty to bargain under the
provisions of that Executive Order. National Treasury Employees Union
and Department of the Treasury, U.S. Customs Service, Region VII, 5 FLRA
250 1977.
/5/ See also Unpublished Decision of the Comptroller General,
B-195409, July 7, 1980 (wherein the Comptroller General, in ruling on a
particular employee's entitlement to travel expenses, noted that payment
of such expenses could be authorized by, among other things, provisions
of a negotiated agreement). It is noted that where a determination as
to whether something is in the Government' s interest is within an
agency's administrative discretion, such determination is subject to
bargaining. American Federation of Government Employees, AFL-CIO, Local
3525 and U.S. Department of Justice, Board of Immigration Appeals, 10
FLRA 61, 65(1982.
/6/ Union Reply Brief to Agency Statement of Position at 4: "of
course, all the specific Travel Regulations apply."
/7/ This claim is apparently premised or made in reliance upon the
following:
a. A report in Government Employees Relations Report (GERR) regarding
an OPM estimate that payment of travel and per diem for union
negotiators on official time under section 7131(a) of the Statute would
cost 15 sample agencies $2 million per year. GERR (BNA) No. 852 at 11
(1980).
b. Information contained in the record of an unrelated impasse
proceeding before the Federal Service Impasses Panel (FSIP) wherein the
agency in that proceeding stated that in the contract negotiations
involved in that dispute, travel and per diem for the union team cost
$187,302.25. Equal Employment Opportunity Commission, Washington, D.C.
and Equal Employment Opportunity Commission Council 216, American
Federation of Government Employees, AFL-CIO, 80 FSIP 38, Report No. 179
(1981 .
c. The statement of the Supreme Court in BATF at 464 U.S. 100 that:
Under the 1962 Executive Order establishing the first federal
labor relations program, the decision whether to pay union
representatives for the time spent in collective bargaining was
left within the discretion of their employing agency, apparently
on the ground that, without some control by management, the length
of such sessions could impose too great a burden on government
business. (Citation and footnote omitted.)
/8/ In finding this proposal within the duty to bargain the Authority
makes no judgment as to its merits.
APPENDIX A
Relevant Provisions of Travel Expense Act 5 U.S.C. 5701 et seq.
5702. Per diem; employee traveling on official business
(a) Under regulations prescribed under section 5707 of this title, an
employee while traveling on official business away from his designated
post of duty, or in the case of an individual described under section
5703 of this title, his home or regular place of business, is entitled
to (1) a per diem allowance for travel inside the continental United
States at a rate not to exceed $50, and (2) a per diem allowance for
travel outside the continental United States, that may not exceed the
rate established by the President, or his designee, for each locality
where travel is to be performed. For travel consuming less than a full
day, such rate may be allocated proportionately.
(c) Under regulations prescribed under section 5707 of this title,
the Administrator of General Services, or his designee, may prescribe
conditions under which an employee may be reimbursed for the actual and
necessary expenses of official travel when the maximum per diem
allowance would be less than these expenses, except that such
reimbursement shall not exceed $75 for each day in a travel status
within the continental United States when the per diem otherwise
allowable is determined to be inadequate (1) due to the unusual
circumstances of the travel assignment, or (2) for travel to high rate
geographical areas designated as such in regulations prescribed under
section 5707 of this title.
5704. Mileage and related allowances
(a) Under regulations prescribed under section 5707 of this title, an
employee who is engaged on official business for the Government is
entitled to not in excess of--
(1) 20 cents a mile for the use of a privately owned motorcycle;
(2) 25 cents a mile for the use of a privately owned automobile; or
(3) 45 cents a mile for the use of a privately owned airplane;
instead of actual expenses of transportation when that mode of
transportation is authorized or approved as more advantageous to the
Government. A determination of such advantage is not required when
payment on a mileage basis is limited to the cost of travel by common
carrier including per diem. Notwithstanding the preceding provisions of
this subsection, in any case in which an employee who is engaged on
official business for the Government chooses to use a privately owned
vehicle in lieu of a Government vehicle, payment on a mileage basis is
limited to the cost of travel by a Government vehicle.
(b) In addition to the mileage allowance authorized under subsection
(a) of this section, the employee may be reimbursed for--
(1) parking fees; (2) ferry fees; (3) bridge, road, and tunnel
costs; and (4) airplane landing and tie-down fees.
5706. Allowable travel expenses
Except as otherwise permitted by this subchapter or by statutes
relating to members of the uniformed services, only actual and necessary
travel may be allowed to an individual holding employment or appointment
under the United States.
5707. Regulations and reports
(a) The Administrator of General Services shall prescribe regulations
necessary for the administration of this subchapter, except that the
Director of the Administrative Office of the United States Courts shall
prescribe such regulations with respect to official travel by employees
of the judicial branch of the Government.
APPENDIX B
Relevant Provisions of
Federal Travel Regulations
1-1.3. General rules.
b. Reimbursable expenses. Traveling expenses which will be
reimbursed are confined to those expenses essential to the transacting
of official business.
1-1.4. Authorization of travel.
a. Travel policy. It is the policy of the Government that agencies
shall authorize only that travel which is necessary to accomplish the
purposes of the Government effectively and economically.
b. Agency responsibilities.
(1) Except as otherwise provided by law, all travel shall be either
authorized or approved by the head of the agency or by an official to
whom such authority has been delegated. Ordinarily, a travel
authorization shall be issued before the incurrence of the expenses.
Agencies shall prescribe procedures for travel situations where it is
not practical or possible to issue a written authorization in advance.
(2) Agency heads shall communicate the Government's travel policy
(see a, above) to all travel authorizing officials at all levels within
their respective agencies and establish controls to ensure that only
travel that is essential to the purposes of the Government and for
accomplishment of the agency's mission is authorized or approved.
(3) Travel authorizing officials shall authorize or approve only that
travel necessary to accomplish the agency mission in the most effective
and economical manner. Authorizing officials should be aware of travel
plans, including plans to take annual leave in conjunction with travel,
and shall ensure appropriate consideration of the need for the travel,
the use of travel substitutes (i.e., mail, teleconferencing, etc.), and
the most cost effective routing and means of accomplishing travel. Each
employee' s travel shall be authorized separately under specific
guidelines provided in 1-1.5.
1-1.5. Guidelines for issuing travel authorizations. The travel
policies and practices of each agency shall reflect, but not be limited
to, the guidelines stated herein.
a. Types and use of travel authorizations. General or blanket travel
authorizations for entire agencies or groups of employees shall not be
used. To ensure adequate managerial and supervisory attention to the
need for all travel, each employee's travel shall be authorized
separately under one of the following types of travel authorization:
(1) Unlimited open authorization. This type of authorization allows
an employee to travel for any purpose without further authorization.
Unlimited open authorizations shall be issued only for department or
agency heads, their deputies, or other principal agency officials as the
agency head or deputy may designate, and managers of major subunits
where no supervisor is present.
(2) Limited open authorization. This type of authorization allows an
employee to travel without further authorization under certain specified
conditions (i.e., travel to specific geographical area(s), for specific
purpose(s), subject to trip cost ceilings, or for specific periods of
time). Limited open authorizations may be provided for employees whose
duties require frequent repetitive travel. Such authorizations,
however, should be reviewed and revalidated at least quarterly and
should include realistic limitations on purpose(s), geographic area(s),
number of trip(s), trip duration, and costs.
(3) Trip-by-trip authorization. This type of authorization allows an
individual or group of individuals to take one or more specific trips
and shall include the specific purpose, itinerary, and estimated costs.
Travel not covered in an unlimited or limited open authorization (see
(1) and (2), above) shall be separately authorized on a trip-by-trip
basis.
b. Levels of approval and requirements for special purpose travel.
Due to the relatively high costs associated with certain kinds of
travel, such travel shall be authorized only on a trip-by-trip basis and
reviewed at a level of authority sufficient to provide policy approval.
The types of travel covered by this requirement are indicated in (1)
thru (3), below.
Authorization of travel for purposes other than those listed in (1)
thru (3), below, should be delegated to the lowest management level
which has responsibility for both program accomplishment and obligation
or commitment of funds.
(1) Conferences, meetings, and training sessions. Travel for
conference and meeting attendance and training sessions shall be
authorized on a trip-by-trip basis. When authorizing travel for
conference and meeting attendance, the approving official shall ensure
that the number of attendees from the agency is necessary and justified.
In addition, the need for conferences and meetings for which total
travel and per diem estimates exceed $5,000 shall be certified by a
level of authority sufficient to provide policy approval as designated
by the head of the agency scheduling the conference or meeting.
c. Purpose(s) of travel. Each travel authorization and the
associated travel voucher (s) (see 1-11.5g) shall specify clearly the
purpose(s) of the travel. For uniformity in establishing travel
purposes on authorizations, agencies should use travel purpose
categories that conform to the extent possible to those listed in
appendix 1-B.
d. Cost estimates. Travel authorizations shall include estimates of
the cost of the travel. Both unlimited and limited open authorizations
shall also include an estimate of the travel costs to be incurred over
the period covered by the authorization. Agencies shall use these
estimates to obligate the funds necessary to carry out that particular
travel in order to improve travel budgetary controls. (For advance of
funds for the estimated costs of travel, see 1-10.3.)
1-2.1. Expenses payable as transportation. Transportation expenses
which the Government may pay either direct or by reimbursement include
fares, rental fees, mileage payments, and any expenses incident to
transportation such as baggage transfer; official telegraph, telephone,
radio, and cable messages in connection with items classified as
transportation; steamer chairs, steamer cushions, and steamer rugs at
customary rates actually charged; staterooms on steamers; and other
expenses set forth in 1-2 through 1-6 and 1-9.