[ v24 p430 ]
24:0430(45)NG
The decision of the Authority follows:
24 FLRA No. 45
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
Union
and
GENERAL SERVICES ADMINISTRATION
Agency
Case No. 0-NG-1109
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority on a petition for review of
negotiability issues filed under section 7105(a)(2)(E) of the Federal
Service Labor-Management Relations Statute and part 2424 of the
Authority's Rules and Regulations. It raises issues concerning the
negotiability of two Union proposals. /1/ We find both proposals to be
negotiable.
II. Proposal 1
Each office to be occupied by one of the Union's National Council
officers will be provided with normal office furniture and a
telephone.
(Only the underlined portions are in dispute.)
Proposal 2
Council officers and local Union officials may use FTS for
necessary communications in handling issues that arise between the
Union and Management. The use of facility telephone services is
also available for communications.
III. Positions of the Parties
The Agency states that its objection is not based on use of the
telephones by the Union for internal union business within the
proscription of section 7131(b) of the Statute. According to the
Agency, the parties are in agreement that the telephones are not to be
used for internal union business. Rather, the Agency's position is that
the proposals are nonnegotiable because both the installation by the
Agency of telephones in union offices and the use by the Union of those
telephones and existing government telephones for local or long-distance
telephone calls are contrary to law and government-wide regulation.
Specifically, the Agency argues that such proposals are contrary to 31
U.S.C. Section 1348(b) and 41 CFR Section 201-38.007 which both restrict
use of a government telephone to "official business" or "official
Government business." The Agency maintains that a labor organization and
labor-management relations activities are no different than any other
private organization and its activities. The Agency further argues that
because of this restriction of installation and use of the government
telephone, the proposals also are contrary to 31 U.S.C. Section 1301,
which provides that appropriations shall be applied only for appropriate
purposes. The Union disputes these Agency contentions.
IV. Analysis and Conclusions
The Agency's position on both proposals is essentially the same: use
of a government telephone for the purpose of conducting labor-management
relations activities is not for the purpose of official Government
business and hence is contrary to law and government-wide regulation.
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. Mar. 27, 1986), we found that a proposal providing
for agency payment of travel expenses attendant to labor-management
relations activities was within the duty to bargain under the Statute.
We rejected the agency's contention that the proposal was inconsistent
with the Travel Expense Act which, in sum, provides that Federal
employees traveling on official business are entitled to appropriate
expenses and allowances. 5 U.S.C. Section 5701 et seq. We noted that
neither the Act nor travel regulations specifically define the term
"official business," but that the term had been construed to require a
determination that the activity was sufficiently within the interest of
the United States. Concluding that such determinations are within the
discretionary administrative authority of an agency, we consequently
held that the agency was obligated under the Statute to exercise that
discretion through negotiation unless precluded by regulatory or
statutory provisions.
Applying these principles in this case, we find that both proposals
are negotiable. Initially, we must reject the Agency's assertion that a
labor organization operation as an exclusive representative of employees
in an appropriate unit and performing labor-management relations
activities under the Statute is no different than any other private
organization and its activities. As expressly set forth in section 7101
of the Statute and as specifically acknowledged by the Authority, labor
organizations and collective bargaining are in the public interest. See
Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9,
11 (1981). More specifically, Congress found that statutory protection
of the right of employees to bargain collectively through labor
organizations safeguards the public interest, contributes to the
effective conduct of public business, and facilitates and encourages
amicable settlement of disputes. Thus, the Agency's reliance on
decisions prohibiting provision of telephone service to private
organizations is misplaced.
The issue is whether the proposals are outside the duty of the Agency
to bargain under the Statute. As in U.S. Customs Service, the statutory
and regulatory provisions cited by the Agency do not specifically define
the terms "official business" or "official Government business" for
which purpose the use of any government telephone is restricted. The
terms have been construed as requiring a determination that the purpose
of the use of the government telephone is in the interest of the United
States. Matter of: Gerald S. Mathews, Comptroller General Decision No.
B-220104, Aug. 4, 1986. Consequently, as in U.S. Customs Service, we
find in this case that the proposals are not inconsistent with law or
government-wide regulation, as alleged, specifically 31 U.S.C. Sections
1301, 1348(b) and 41 CFR Section 201-38.007. /2/ The Agency fails to
cite any statutory or regulatory provision which would prohibit it from
exercising through negotiations its discretion to determine that
telephone installation and service for union offices relating to
labor-management relations activities is sufficiently within the
interest of the United States so as to constitute official business.
Likewise, the proposals do not require telephone installation or service
which does not comport with cited statutory and regulatory requirements
and restrictions.
In addition, we note that finding these proposals to be negotiable is
consistent with other Authority decisions addressing proposals or
provisions for telephone use by union officials in conducting
labor-management relations activities under the Statute. American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980)
(Proposal II), enforced as to other matters sub nom. Department of
Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom.
AFGE v. FLRA, 455 U.S. 945 (1982); American Federation of Government
Employees, AFL-CIO, Local 3748 and Department of Agriculture, Science
and Education Administration, Personnel Division, Hyattsville, Maryland,
11 FLRA 122 (1983); Department of the Air Force, Flight Test Center,
Edwards Air Force Base, California and Interdepartmental Local 3854,
American Federation of Government Employees, AFL-CIO, 21 FLRA No. 61
(1986). See also National Treasury Employees Union and Internal Revenue
Service, Denver District, 24 FLRA No. 30 (1986). Of course, telephone
use by union officials in conducting labor-management relations
activities under the Statute must be distinguished from telephone use by
employees in performance of the official duties of their positions which
use implicates management rights under section 7106(b)(1) of the
Statute. American Federation of Government Employees, AFL-CIO, Local
3760 and Social Security Administration, Disability Analysis Branch,
Field Assessment Office, 11 FLRA 576 (1983); American Federation of
Government Employees, Local 644, AFL-CIO and U.S. Department of Labor,
Mine Health and Safety Administration, Morgantown, West Virginia, 15
FLRA 902 (1984) (proposal 3). Accordingly, proposals 1 and 2 are within
the duty to bargain under the Statute.
V. Order
The Agency must upon request (or as otherwise agreed to by the
parties) bargain concerning proposals 1 and 2. /3/
Issued, Washington, D.C., December 12, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union's motion for a hearing pursuant to 5 CFR Section 2424.9
is denied because there is sufficient evidence in the record upon which
to base a reasoned decision.
(2) Because 41 CFR Section 201-38.007 is generally applicable
throughout the Federal Government, we find that it is a government-wide
regulation within the meaning of section 7117 of the Statute. See
National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 747 (1980).
(3) In deciding that proposals 1 and 2 are within the Agency's duty
to bargain, we make no judgment as to their merits.