Division of Military and Naval Affairs, State of New York (Albany, New York) (Respondent) and New York State Council of Association of Civilian Technicians, Inc. (Charging Party) 

 7 FLRA No. 69
 
 DIVISION OF MILITARY AND NAVAL AFFAIRS
 STATE OF NEW YORK (ALBANY, NEW YORK)
 Respondent
 
 and
 
 NEW YORK STATE COUNCIL OF ASSOCIATION
 OF CIVILIAN TECHNICIANS, INC.
 Charging Party
 
                                            Case No. 1-CA-334
 
                          DECISION AND ORDER /1/
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1 OF THE AUTHORITY'S RULES
 AND REGULATIONS (5 CFR 2429.1(A)).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, BRIEFS SUBMITTED
 BY THE RESPONDENT AND THE GENERAL COUNSEL, AND AMICUS CURIAE BRIEFS
 FILED BY NATIONAL FEDERATION OF FEDERAL EMPLOYEES AND NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, THE AUTHORITY FINDS:
 
    THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE) BASED ON ITS REFUSAL TO AUTHORIZE TRAVEL AND PER
 DIEM EXPENSES FOR EMPLOYEES SERVING AS MEMBERS OF THE UNION'S
 NEGOTIATING COMMITTEE IN NONCOMPLIANCE WITH SECTION 7131(A) OF THE
 STATUTE.  THE RESPONDENT ADMITS THAT AS SECTION 7131(A) IS PRESENTLY
 INTERPRETED, /2/ ITS REFUSAL TO AUTHORIZE TRAVEL OR PER DIEM EXPENSES
 VIOLATES THE STATUTE.  HOWEVER, THE RESPONDENT URGES THAT SUCH PRECEDENT
 BE REVERSED ON THE GROUND THAT SECTION 7131(A) OF THE STATUTE CONTAINS
 NO EXPRESS PROVISION GRANTING THE AUTHORITY THE POWER TO ORDER PAYMENT
 OF TRAVEL AND PER DIEM EXPENSES.  /3/ THUS, IT ARGUES THAT THE AUTHORITY
 EXCEEDED ITS POWER BY THE POSITION IT ESTABLISHED IN INTERPRETATION AND
 GUIDANCE, SUPRA.  IN ADDITION, IT CONTENDS THAT IT CANNOT BE REQUIRED TO
 MAKE ANY PAYMENT OUT OF APPROPRIATED FUNDS ABSENT A STATUTORY BASIS FOR
 SUCH A PAYMENT.
 
    CONTRACT NEGOTIATION SESSIONS BETWEEN THE PARTIES HEREIN WERE
 CONDUCTED ON NOVEMBER 5 AND 6, 1979, AND APRIL 14, 1980.  EMPLOYEES FRED
 YOUNG, JOHN HERNON, JERRY BRENNAN, CHARLES MCNAB AND RICHARD PAUZE
 REPRESENTED THE UNION AT THE NOVEMBER 5 AND 6, 1979, MEETINGS WITH FIVE
 MANAGEMENT REPRESENTATIVES.  NO REQUESTS FOR PAYMENT OF TRAVEL OR PER
 DIEM EXPENSES WERE MADE.  EMPLOYEES YOUNG AND HERNON REPRESENTED THE
 UNION AT THE APRIL 14, 1980, NEGOTIATING SESSION.  SPECIFIC REQUESTS FOR
 TRAVEL AND PER DIEM EXPENSES WERE MADE BY YOUNG AND HERNON AND DENIED BY
 THE RESPONDENT.
 
    THE AUTHORITY HAS CONSIDERED THE RESPONDENT'S ARGUMENTS THAT THE
 PRECEDENT, NOTE 1, SUPRA, BE REVERSED.  AS THE RESPONDENT HAS MADE NO
 ARGUMENTS WHICH WERE NOT PREVIOUSLY CONSIDERED, AND NO NEW BASIS HAS
 BEEN ADVANCED TO PERSUADE THE AUTHORITY TO REVERSE THOSE CASES, THE
 RESPONDENT'S POSITION IS REJECTED.
 
    THE AUTHORITY DETERMINED IN INTERPRETATION AND GUIDANCE, SUPRA, AND
 SUBSEQUENT CASES (NOTE 1, SUPRA), BASED UPON AN ANALYSIS OF THE STATUTE
 AND THE LEGISLATIVE HISTORY OF SECTION 7131, THAT ANY EMPLOYEE WHO IS ON
 OFFICIAL TIME UNDER SECTION 7131 WHILE REPRESENTING AN EXCLUSIVE
 REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT
 IS ENTITLED TO PAYMENT FROM AGENCIES FOR TRAVEL AND PER DIEM EXPENSES.
 /4/ THEREFORE, THE AUTHORITY CONCLUDES THAT THE RESPONDENT VIOLATED
 SECTION 7116(A)(1) AND (8) WHEN IT REFUSED TO AUTHORIZE PAYMENT OF
 REQUESTED TRAVEL AND PER DIEM EXPENSES TO EMPLOYEES YOUNG AND HERNON
 WHILE THEY WERE ON OFFICIAL TIME, ON APRIL 14, 1980, REPRESENTING THE
 UNION IN THE NEGOTIATION OF THE COLLECTIVE BARGAINING AGREEMENT.
 ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE VIOLATIVE CONDUCT BE
 REMEDIED BY REQUIRING PAYMENT OF PROPERLY DOCUMENTED TRAVEL AND PER DIEM
 EXPENSES TO THE ABOVE-NOTED MEMBERS OF THE UNION'S NEGOTIATING TEAM AND
 TO ANY OTHER EMPLOYEE WHO SUBMITS A PROPERLY DOCUMENTED VOUCHER FOR
 PAYMENT OF TRAVEL AND PER DIEM EXPENSES RELATED TO PARTICIPATION ON
 OFFICIAL TIME AS THE DESIGNATED UNION REPRESENTATIVE IN CONTRACT
 NEGOTIATIONS SUBSEQUENT TO APRIL 14, 1980.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE DIVISION OF MILITARY AND NAVAL AFFAIRS,
 STATE OF NEW YORK, (ALBANY, NEW YORK) SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
 TRAVEL AND PER DIEM EXPENSES INCURRED BY FRED YOUNG, JOHN HERNON, OR ANY
 OTHER EMPLOYEE, AS A RESULT OF THEIR PARTICIPATION ON OFFICIAL TIME
 UNDER SECTION 7131(A) OF THE STATUTE AS DULY DESIGNATED REPRESENTATIVES
 OF THE NEW YORK STATE COUNCIL OF ASSOCIATION OF CIVILIAN TECHNICIANS,
 INC., THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED CONTRACT
 NEGOTIATION SESSIONS.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) PROVIDE PAYMENT TO EMPLOYEES FRED YOUNG AND JOHN HERNON BASED
 UPON THEIR PREVIOUSLY SUBMITTED VOUCHERS FOR THEIR TRAVEL AND PER DIEM
 EXPENSES INCURRED AS THE RESULT OF THEIR PARTICIPATION ON OFFICIAL TIME
 UNDER SECTION 7131(A) OF THE STATUTE AS THE DULY DESIGNATED
 REPRESENTATIVES OF THE NEW YORK STATE COUNCIL OF ASSOCIATION OF CIVILIAN
 TECHNICIANS, INC., FOR THE CONTRACT NEGOTIATION SESSION CONDUCTED APRIL
 14, 1980.
 
    (B) PROVIDE PAYMENT TO ANY OTHER EMPLOYEE WHO SUBMITS A PROPERLY
 DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS THE
 RESULT OF PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
 STATUTE IN CONTRACT NEGOTIATIONS, AS A DULY DESIGNATED REPRESENTATIVE OF
 THE NEW YORK STATE COUNCIL OF ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
 
    (C) POST AT ITS FACILITIES LOCATED THROUGHOUT THE STATE OF NEW YORK
 COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL
 LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
 SIGNED BY THE ADJUTANT GENERAL AND SHALL BE POSTED AND MAINTAINED BY HIM
 FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
 BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE ADJUTANT GENERAL SHALL TAKE REASONABLE STEPS TO
 INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION I, FEDERAL LABOR
 RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 29, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
            CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
 
                    HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT FAIL OR REFUSE TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
 TRAVEL AND PER DIEM EXPENSES INCURRED BY FRED YOUNG, JOHN HERNON, OR ANY
 OTHER EMPLOYEE AS A RESULT OF THEIR PARTICIPATION ON OFFICIAL TIME UNDER
 SECTION 7131(A) OF THE STATUTE AS DULY DESIGNATED REPRESENTATIVES OF THE
 NEW YORK STATE COUNCIL OF ASSOCIATION OF CIVILIAN TECHNICIANS, INC., THE
 EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED CONTRACT NEGOTIATIONS.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS AS ASSURED BY
 THE STATUTE.
 
    WE WILL PROVIDE PAYMENT TO EMPLOYEES FRED YOUNG AND JOHN HERNON,
 BASED UPON THEIR PREVIOUSLY SUBMITTED VOUCHERS, FOR THEIR TRAVEL AND PER
 DIEM EXPENSES INCURRED AS THE RESULT OF THEIR PARTICIPATION ON OFFICIAL
 TIME UNDER SECTION 7131(A) OF THE STATUTE AS THE DULY DESIGNATED
 REPRESENTATIVES OF THE NEW YORK STATE COUNCIL OF ASSOCIATION OF CIVILIAN
 TECHNICIANS, INC., FOR THE CONTRACT NEGOTIATION SESSION CONDUCTED APRIL
 14, 1980.
 
    WE WILL PROVIDE PAYMENT TO ANY OTHER EMPLOYEE WHO SUBMITS A PROPERLY
 DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS THE
 RESULT OF PARTICIPATION IN CONTRACT NEGOTIATIONS ON OFFICIAL TIME UNDER
 SECTION 7131(A) OF THE STATUTE AS A DULY DESIGNATED REPRESENTATIVE OF
 THE NEW YORK STATE COUNCIL OF ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:
 
                                   BY:
 
                            (SIGNATURE) (TITLE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION I, WHOSE ADDRESS IS:
  441 STUART STREET, 9TH FLOOR, BOSTON, MASSACHUSETTS, 02116, AND WHOSE
 TELEPHONE NUMBER IS (617) 223-0920.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES AND THE NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES WERE GRANTED PERMISSION TO
 PARTICIPATE IN THIS PROCEEDING AS AMICI CURIAE PURSUANT TO SECTION
 2429.9 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    /2/ INTERPRETATION AND GUIDANCE, 2 FLRA 264(1979).  SUBSEQUENTLY, THE
 AUTHORITY ISSUED BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN
 REGION, DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA
 NO. 40(1980), APPEAL DOCKETED, NO. 80-7673 (9TH CIR. NOV. 28, 1980) AND
 U.S. DEPARTMENT OF AGRICULTURE, SCIENCE AND EDUCATION ADMINISTRATION,
 AGRICULTURAL RESEARCH, NORTH CENTRAL REGION, DAKOTAS-ALASKA AREA, 6 FLRA
 NO. 45(1981), APPEAL DOCKETED, NO. 81-1948 (8TH CIR. SEPT. 4, 1981).
 SEE ALSO, FLORIDA NATIONAL GUARD, 5 FLRA NO.  49(1981), APPEAL DOCKETED,
 NO. 81-5466 (5TH CIR. MAY 18, 1981).
 
    /3/ SECTION 7131.  OFFICIAL TIME
 
    (A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
 NEGOTIATION OF A
 
    COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER SHALL BE
 AUTHORIZED OFFICIAL TIME FOR SUCH
 
    PURPOSES, INCLUDING ATTENDANCE AT IMPASSE PROCEEDING, DURING THE TIME
 THE EMPLOYEE OTHERWISE
 
    WOULD BE IN A DUTY STATUS.  THE NUMBER OF EMPLOYEES FOR WHOM OFFICIAL
 TIME IS AUTHORIZED UNDER
 
    THIS SUBSECTION SHALL NOT EXCEED THE NUMBER OF INDIVIDUALS DESIGNATED
 AS REPRESENTING THE
 
    AGENCY FOR SUCH PURPOSES.
 
    /4/ THE AMICUS CURIAE BRIEFS SUPPORT GENERALLY THE AUTHORITY'S
 INTERPRETATION OF THE STATUTE NOTING PARTICULARLY THAT AN EMPLOYEE ON
 OFFICIAL TIME IS ON "OFFICIAL BUSINESS," AS REQUIRED FOR THE PAYMENT OF
 TRAVEL AND PER DIEM EXPENSES.  (BRIEFS OF THE NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES AND THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 AT 3 AND 9, RESPECTIVELY).