[ v10 p202 ]
10:0202(40)CA
The decision of the Authority follows:
10 FLRA No. 40 IMMIGRATION AND NATURALIZATION SERVICE Respondent and NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 3-CA-2069 DECISION AND ORDER THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS. UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE STIPULATION OF FACTS AND THE CONTENTIONS OF THE PARTIES, THE AUTHORITY FINDS: THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) WHEN IT FAILED AND REFUSED TO COMPLY WITH SECTION 7131(A) OF THE STATUTE BY ITS DENIAL IN 1981 OF THE UNION'S REQUEST FOR APPROPRIATE TRAVEL AUTHORIZATIONS FOR ITS DESIGNATED REPRESENTATIVES IN SCHEDULED NEGOTIATIONS. THE FOLLOWING UNION DESIGNEES WERE SPECIFICALLY DENIED REIMBURSEMENT OF THEIR CLAIMED EXPENSES RELATED TO TRAVEL AND PER DIEM FOR SUCH NEGOTIATIONS: J. BROZ, WARD LEIS AND NORMAN FISHER. THE RESPONDENT TAKES THE POSITION THAT NO STATUTORY RIGHT TO PER DIEM AND TRAVEL EXPENSES EXISTS UNDER SECTION 7131 OF THE STATUTE AND THAT THE AUTHORITY'S INTERPRETATION AND GUIDANCE, 2 FLRA 265(1979) GRANTING SUCH A RIGHT WAS ERRONEOUS. ON THIS ISSUE, THE POSITIONS OF THE PARTIES ARE SUBSTANTIALLY SIMILAR TO THOSE IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40(1980), ENFORCED SUB NOM. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS V. FEDERAL LABOR RELATIONS AUTHORITY, 672 F.2D 732 (9TH CIR. 1982), WHEREIN THE AUTHORITY HELD THAT EMPLOYEES WHO ARE ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE WHILE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT ARE ENTITLED TO PAYMENT FROM AGENCIES FOR THEIR DUTY TIME AND TRAVEL AND PER DIEM EXPENSES. /1/ BASED ON THE REASONS SET FORTH IN THAT DECISION, THE AUTHORITY FINDS THAT UNDER SECTION 7131(A) OF THE STATUTE THE RESPONDENT HAS THE OBLIGATION TO PAY THE EMPLOYEES IN QUESTION TRAVEL AND PER DIEM EXPENSES. ALTERNATIVELY, THE RESPONDENT TAKES THE POSITION THAT, ASSUMING SUCH A RIGHT EXISTS, THE UNION IN THE COLLECTIVE BARGAINING AGREEMENT DATED JUNE 13, 1979, WAIVED THE RIGHT TO PER DIEM AND TRAVEL EXPENSES FOR EMPLOYEES DESIGNATED AS NEGOTIATING TEAM MEMBERS. IN TAKING THIS POSITION, IT RELIES ON ARTICLE 7 OF THE AGREEMENT, PARTICULARLY SUBSECTIONS A AND G, WHICH READ, IN PART, AS FOLLOWS: ARTICLE 7-- USE OF OFFICIAL TIME A. UPON REQUEST, AN APPROVAL IN ADVANCE, UNION OFFICIALS MAY USE OFFICIAL TIME TO CONDUCT REPRESENTATIONAL FUNCTIONS WHERE SUCH IS AUTHORIZED PURSUANT TO, AND CONSISTENT WITH, APPLICABLE STATUTES, REGULATIONS, AND EXECUTIVE ORDERS RELATING TO COMPLAINTS, GRIEVANCES, APPEALS, AND OTHER MATTERS INVOLVING DEALINGS WITH SERVICE OFFICIALS. OFFICIAL TIME FOR REPRESENTATIONAL FUNCTIONS PERFORMED BY UNION OFFICERS AND STEWARDS WILL BE AUTHORIZED FOR: . . . . G. NATIONAL COUNCIL REPRESENTATIVES WHO ARE AUTHORIZED OFFICIAL TIME TO ATTEND THE FOLLOWING MEETINGS: (1) NATIONAL AND REGIONAL SEMI-ANNUAL LABOR-MANAGEMENT MEETINGS; (2) NATIONAL AND REGIONAL SAFETY AND HEALTH COMMITTEE MEETINGS; OR (3) ANY OTHER MEETING SCHEDULED BY MANAGEMENT WITH THE INTENT OF MEETING WITH THE UNION AS GENERAL REPRESENTATIVE OF THE BARGAINING UNIT FOR THE PURPOSE OF OBTAINING THE UNION'S VIEWS OR OFFERING MANAGEMENT'S VIEWS ON THE OPERATION OF A POLICY OR PROGRAM (EXCLUDING GRIEVANCE, REPRESENTATION, COMPLAINTS, APPEALS, NEGOTIATIONS, ETC.). WILL BE AUTHORIZED TRAVEL EXPENSES AND PER DIEM. SPECIFICALLY, THE RESPONDENT ARGUES THAT ALTHOUGH THOSE EMPLOYEES ENGAGED IN REPRESENTING THE UNION DURING NEGOTIATIONS ARE ENTITLED TO OFFICIAL TIME PURSUANT TO ARTICLE 7 SUBSECTION (A) OF THE CONTRACT, SUBSECTION G(3) THEREOF EXCLUDES NEGOTIATIONS SUCH AS THOSE AT ISSUE HEREIN FROM THE OBLIGATION TO PAY TRAVEL AND PER DIEM EXPENSES. THE PARTIES REACHED COMPLETE AGREEMENT ON THE CONTRACT INVOLVED HEREIN ON JULY 2, 1979. THE AUTHORITY TAKES ADMINISTRATIVE NOTICE THAT, THEREAFTER, ON JULY 20, 1979, IT PUBLISHED A NOTICE RELATING TO OFFICIAL TIME, 44 FED.REG. 42,778(1979), ANNOUNCING THAT AN INTERPRETATION OF THE STATUTE WAS WARRANTED ON THE ISSUE OF WHETHER EMPLOYEES ON OFFICIAL TIME UNDER SECTION 7131 OF THE STATUTE WHILE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT ARE ENTITLED TO PAYMENT FROM AGENCIES FOR THEIR TRAVEL AND PER DIEM EXPENSES, AND INVITED COMMENTS THEREON. ON DECEMBER 19, 1979, THE AUTHORITY ISSUED AN INTERPRETATION AND GUIDANCE, 2 FLRA 265, PROVIDING, IN PART, THAT SUCH EMPLOYEES ARE ENTITLED TO PAYMENTS FOR TRAVEL AND PER DIEM EXPENSES. THE AUTHORITY, IN NUCLEAR REGULATORY COMMISSION, 8 FLRA NO. 124(1982), FOUND THAT ENTITLEMENT TO TRAVEL AND PER DIEM EXPENSES UNDER SECTION 7131, AS WITH OTHER RIGHTS UNDER THE STATUTE, MAY BE WAIVED BY CLEAR AND UNMISTAKABLE CONDUCT OF THE UNION. IN FINDING SUCH A WAIVER AND DISMISSING THE COMPLAINT, THE AUTHORITY NOTED IN PARTICULAR THAT "SUCH SPECIFIC AND UNEQUIVOCAL LANGUAGE WAS AGREED UPON AT A TIME WHEN THE UNION HAD NOTICE THAT THE AUTHORITY WAS ACTIVELY INVITING AND CONSIDERING COMMENTS ON THE QUESTION OF WHETHER EMPLOYEES ARE ENTITLED TO SUCH PER DIEM AND TRAVEL EXPENSES WHILE THEY ARE ON OFFICIAL TIME FOR CONTRACT NEGOTIATIONS." A DIFFERENT RESULT MUST BE REACHED IN THE INSTANT CASE, CONSISTENT WITH THE QUOTED LANGUAGE FROM THE NUCLEAR REGULATORY COMMISSION DECISION. HERE, THE PARTIES WERE NOT ON NOTICE AT THE TIME OF NEGOTIATIONS THAT THE AUTHORITY WOULD CONSIDER THE QUESTION OF ENTITLEMENT TO PER DIEM AND TRAVEL EXPENSES AS A STATUTORY RIGHT UNDER SECTION 7131. VIEWED IN THIS CONTEXT, IT APPEARS THAT THE LANGUAGE OF ARTICLE 7 IN THE PARTIES' AGREEMENT, EVEN IF IT UNAMBIGUOUSLY PROVIDED THAT TRAVEL AND PER DIEM WOULD NOT BE PAID TO EMPLOYEES REPRESENTING THE UNION IN CONTRACT NEGOTIATIONS, SHOULD NOT BE FOUND TO CONSTITUTE THE CONSCIOUS YIELDING BY THE UNION OF A THEN UNKNOWN STATUTORY RIGHT. /2/ THEREFORE, THE UNION DID NOT CLEARLY AND UNMISTAKABLY WAIVE SUCH STATUTORY RIGHT TO PER DIEM AND TRAVEL EXPENSES INCURRED BY EMPLOYEES ON ITS NEGOTIATING TEAM. /3/ ACCORDINGLY, THE AUTHORITY FINDS THAT THE RESPONDENT HAS FAILED AND REFUSED TO COMPLY WITH SECTION 7131(A) OF THE STATUTE AND THEREFORE HAS VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE. 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 IMMIGRATION AND NATURALIZATION SERVICE SHALL: 1. CEASE AND DESIST FROM: (A) FAILING OR REFUSING TO REIMBURSE EMPLOYEES J. BROZ, WARD LEIS AND NORMAN FISHER FOR THEIR TRAVEL AND PER DIEM EXPENSES INCURRED AS A RESULT OF THEIR PARTICIPATION ON OFFICIAL TIME, PURSUANT TO SECTION 7131(A) OF THE STATUTE, AS DESIGNATED REPRESENTATIVES OF THE NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN COLLECTIVE BARGAINING. (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) REIMBURSE EMPLOYEES J. BROZ, WARD LEIS AND NORMAN FISHER, BASED UPON THEIR PREVIOUSLY SUBMITTED VOUCHERS, FOR THEIR TRAVEL AND PER DIEM EXPENSES INCURRED AS A RESULT OF THEIR PARTICIPATION ON OFFICIAL TIME, PURSUANT TO SECTION 7131(A) OF THE STATUTE, AS DESIGNATED REPRESENTATIVES OF THE NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, IN COLLECTIVE BARGAINING. (B) POST AT ITS FACILITIES NATIONWIDE 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 COMMISSIONER, OR HIS DESIGNEE, AND SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMISSIONER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, 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., SEPTEMBER 30, 1982 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: WILL NOT FAIL OR REFUSE TO REIMBURSE EMPLOYEES J. BROZ, WARD LEIS AND NORMAN FISHER FOR THEIR TRAVEL AND PER DIEM EXPENSES INCURRED AS A RESULT OF THEIR PARTICIPATION ON OFFICIAL TIME, PURSUANT TO SECTION 7131(A) OF THE STATUTE, AS DESIGNATED REPRESENTATIVES OF THE NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN COLLECTIVE BARGAINING. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. WE WILL REIMBURSE EMPLOYEES J. BROZ, WARD LEIS AND NORMAN FISHER, BASED UPON THEIR PREVIOUSLY SUBMITTED VOUCHERS, FOR THEIR TRAVEL AND PER DIEM EXPENSES INCURRED AS A RESULT OF THEIR PARTICIPATION ON OFFICIAL TIME, PURSUANT TO SECTION 7131(A) OF THE STATUTE, AS DESIGNATED REPRESENTATIVES OF THE NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, IN COLLECTIVE BARGAINING. (AGENCY OR ACTIVITY) DATED: . . . BY: . . . (SIGNATURE) 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, REGION III, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 1111 18TH STREET, N.W., SUITE 700, WASHINGTON, D.C., 20036 AND WHOSE TELEPHONE NUMBER IS: (202) 653-8507. --------------- FOOTNOTES$ --------------- /1/ BUT SEE DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK (ALBANY, NEW YORK), 7 FLRA NO. 69(1981), REVERSED SUB NOM. DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK AND DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, NO. 82-4036 (2D CIR. JUNE 28, 1982) AND U.S. DEPARTMENT OF AGRICULTURE, SCIENCE AND EDUCATION ADMINISTRATION, AGRICULTURAL RESEARCH, NORTH CENTRAL REGION, DAKOTAS-ALASKA AREA, 6 FLRA NO. 45(1981), REVERSED SUB NOM. UNITED STATES DEPARTMENT OF AGRICULTURE V. FEDERAL LABOR RELATIONS AUTHORITY, NO. 81-1948 (8TH CIR. AUG. 9, 1982). /2/ SEE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, NATIONAL OFFICE AND WESTERN REGION, SAN FRANCISCO, CALIFORNIA, 8 FLRA 108(1982), AT N. 1. /3/ CF. DEPARTMENT OF THE AIR FORCE, U.S. AIR FORCE ACADEMY, 6 FLRA NO. 100(1981) (WHEREIN THE AUTHORITY DETERMINED THAT NO CLEAR AND UNMISTAKABLE WAIVER WAS PRESENT IN A CASE INVOLVING A REFUSAL TO NEGOTIATE A MATTER WHICH THE AUTHORITY HAD PREVIOUSLY HELD TO BE NEGOTIABLE).