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51 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL AVIATION ADMINISTRATION

NORTHWEST MOUNTAIN REGION

RENTON, WASHINGTON

(Respondent/Agency)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

(Charging Party/Union)

DE-CA-30588

_____

DECISION AND ORDER

March 26, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald Wasserman, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority based on the parties' stipulation of facts under section 2429.1(a) of the Authority's Regulations. The parties have agreed that no material issue of fact exists.

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to pay the travel and per diem expenses incurred by an Agency employee subpoenaed by the General Counsel to testify at an unfair labor practice (ULP) hearing.

For the following reasons, we find that the Respondent's refusal to pay the expenses did not constitute a failure to comply with either section 7131(c) or 7132(c) of the Statute. Accordingly, we dismiss the complaint.

II. Background

The Regional Director of the Denver Regional Office issued a subpoena directing a Regional Vice President of the Union in Salt Lake City, Utah to appear and testify at a ULP hearing in Denver. The employee subsequently appeared and testified, thus incurring travel expenses, which the Agency refused to pay. Based on a charge filed by the Union, the Regional Director issued a complaint alleging that the Agency violated section 7116(a)(1) and (8) of the Statute by refusing to pay the employee's travel expenses and per diem allowance. Specifically, the complaint alleges that, by refusing to do so, the Respondent failed to comply with sections 7131(c)⁽¹⁾and 7132(c)⁽²⁾ of the Statute.

III. Positions of the Parties

A. General Counsel

The General Counsel argues that the Agency's refusal to pay the employee's travel and per diem expenses constitutes a failure to comply with section 7131(c) of the Statute, and that section 7131(c) provides a statutory basis for the sentence in 5 C.F.R. § 2429.13 that directs employing agencies to pay travel and per diem expenses for employee witnesses.⁽³⁾ The General Counsel asserts that the Authority has not adopted or rejected the United States Court of Appeals for the District of Columbia Circuit's ruling to the contrary in Sacramento Air Logistics Center, McClellan AFB, California v. FLRA, 877 F.2d 1036 (D.C. Cir. 1989) (McClellan AFB).

The General Counsel also argues that the Agency's refusal to pay the disputed travel and per diem expenses constitutes a failure to comply with section 7132(c) of the Statute. The General Counsel contends that section 7132(c) provides a statutory basis for the disputed sentence in 5 C.F.R. § 2429.13 by "incorporat[ing]" 5 U.S.C. § 5751(a),⁽⁴⁾ which provides for the payment of the travel expenses of a witness summoned to testify in Federal court on behalf of the United States. Exceptions at 9. In addition, the General Counsel states that section 7105(a)(2)(I)⁽⁵⁾ of the Statute "is seemingly broad enough to allow [the Authority] to promulgate regulations such as 5 C.F.R. § 2429.13." Exceptions at 8.

B. Respondent

The Agency argues that section 7131(c) of the Statute concerns only official time and does not require the payment of travel or per diem expenses, which is "an item for negotiation, not [a] union entitlement." Response to Exceptions at 2. The Agency also argues that section 7132(c) does not authorize the Authority to order an employing agency to pay the travel and per diem expenses of a subpoenaed witness. Instead, the Agency asserts, an Authority witness must be treated the same as a witness in a Federal court proceeding, whose expenses are paid by the party who subpoenas the witness. The Agency, therefore, contends that the General Counsel, who subpoenaed the witness, is responsible for paying his expenses.

III. Analysis and Conclusions

A. The Agency did not fail to comply with section 7131(c) of the Statute by refusing to pay the travel expenses and per diem allowances of an Agency employee subpoenaed by the Authority to testify at a ULP hearing

Section 7131(c) authorizes only official time--not travel or per diem expenses. A similar authorization of official time, which appears in section 7131(a) of the Statute,⁽⁶⁾ has been previously interpreted and applied by the U.S. Supreme Court to exclude the payment of travel and per diem expenses. Bureau of Alcohol, Tobacco, and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF).

In BATF, the Supreme Court held that Congress, in referring to official time in section 7131(a) of the Statute, did not intend to authorize the Authority to require agencies to pay the travel and per diem expenses of employee negotiators. 464 U.S. at 108. The Court rejected the argument that the use of the phrase "official time" encompassed travel and per diem expenses because Congress "does not rely on the mere use of the word 'official' when it intends to allow travel expenses and per diems." Id. at 105. Instead, the Court determined, Congress "generally provides explicit authorization for such payments." Id., citing 5 U.S.C. §§ 5702, 5751(b), 6322(b). For example, the Court noted, in the Civil Service Reform Act, Congress expressly provided that members of the Federal Service Impasses Panel are entitled to travel expenses and per diem, in addition to a salary. Id., citing 5 U.S.C. §§ 5703, 7119(c)(4).

Subsequently, relying on BATF, the D.C. Circuit held that the reference to official time in section 7131(c) also did not encompass travel or per diem expenses and, therefore, provided no basis for the Authority to promulgate the disputed sentence of 5 C.F.R. § 2429.13. McClellan AFB. The court determined that the phrase "official time" in section 7131(c) should be construed as the Supreme Court had construed the same phrase in BATF. The court based this conclusion on its determination that "[t]he language is sufficiently parallel to warrant a common application" and that no showing had been made for differentiating between the two provisions on the basis of legislative history. McClellan AFB, 877 F.2d at 1039-40. The court concluded that both provisions should be interpreted in the same manner; that both were limited to the circumstances in which an employee may be granted official time; and that neither provides for the payment of travel expenses or per diem. Id. at 1040.

We have reviewed the plain wording and the legislative history of sections 7131(a) and (c). We conclude, in this regard, that, as noted by the court in McClellan AFB, the relevant language in the two sections is the same and that the legislative history provides no basis to distinguish between them. As no basis on which to reject the D.C. Circuit's decision is argued in the record or is otherwise apparent, we adopt the court's interpretation of section 7131(c). Accordingly, we hold that section 7131(c), either by itself, or through 5 C.F.R. § 2429.13, did not authorize the Authority to require the Agency to pay the testifying employee's travel and per diem expenses.

B. The Agency did not fail to comply with section 7132(c) of the Statute by refusing to pay the travel expenses and per diem allowance of an Agency employee subpoenaed by the Authority to testify at a ULP hearing

By its plain wording, section 7132(c) provides for the payment of "the same fee and mileage allowances" that are paid subpoenaed witnesses in Federal court. There is no reference in this section to either official time or to travel and per diem expenses. Nothing in the legislative history of section 7132(c) indicates that Congress intended it to encompass expenses other than fees and mileage allowances, unless such other expenses are paid to subpoenaed witnesses in Federal court as part of fees and mileage allowances.⁽⁷⁾

An examination of the statutory provisions governing the travel expenses for subpoenaed witnesses in Federal court referenced in section 7132(c) supports the view that "mileage allowances" do not encompass travel and per diem expenses for Federal employee witnesses in ULP proceedings.

Travel expenses for Federal employee witnesses subpoenaed to testify in Federal court are provided in 5 U.S.C. § 5751. That section, in turn, provides for Federal employee entitlement to "travel expenses" under subchapter I of chapter 57, provided that the witness is deemed to be "summoned or assigned by his agency, to testify or produce official records on behalf of the United States." 5 U.S.C. § 5751(a). An examination of Subchapter I reveals that it has separate provisions governing travel and per diem expenses, under 5 U.S.C. § 5702, and "mileage and related allowances," under 5 U.S.C. § 5704. The categories of reimbursement are also separate and distinct for subpoenaed witness who are not Federal employees. In particular, 28 U.S.C. § 1821 references separate provisions authorizing the payment of witness fees, travel expenses and mileage allowances. That travel and per diem payments, on the one hand, and mileage allowances, on the other, are separately provided for both Federal and non-Federal employee witnesses in Federal court supports a conclusion that these categories of expense reimbursement are viewed by Congress as different. As such, express reference to one does not encompass the other.

In these circumstances, there is no basis on which to conclude that the provision of mileage expenses in section 7132(c) encompasses anything other than those expenses. That is, no ground is argued or apparent on which to conclude that either section 7132(c) or 5 U.S.C. § 5751 requires reimbursement of travel and per diem expenses. As such, we hold that section 7132(c), either independently or through the incorporation of section 5751(a), does not provide a basis on which to require the Respondent to pay the travel and per diem expenses in this case.

As noted, the General Counsel suggests that section 7105(a)(2)(I) of the Statute could provide a statutory basis for the disputed sentence in 5 C.F.R. § 2429.13 requiring employing agencies to pay travel expenses and per diem allowances. However, there is no alleged violation of section 7105(a)(2)(I) in the complaint in this case. As such, and as the case is before us based on a stipulation, the Respondent was not provided notice of and an opportunity to litigate the issue. The Authority will not consider issues which a party did not have an opportunity to fully and fairly litigate. U.S. Department of Labor, Washington, D.C. and National Council of Field Labor Locals, American Federation of Government Employees, (AFL-CIO), 51 FLRA 462, 468 (1995). Consequently, we do not address section 7105(a)(2)(I) further.⁽⁸⁾

The Respondent did not violate either section 7131(c) or section 7132(c) in refusing to pay the travel and per diem expenses in this case. Accordingly, the complaint must be dismissed.

IV. Order

The complaint is dismissed.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Section 7131(c) provides:

Except as provided in subsection (a) of this section, the Authority shall determine whether any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose during the time the employee otherwise would be in a duty status.

2. Section 7132(c) provides:

Witnesses (whether appearing voluntarily or nder subpena) shall be paid the same fee and mileage allowances which are paid subpoenaed witnesses in the courts of the United States.

3. 5 C.F.R. § 2429.13 provides, in pertinent part:

If the participation of any employee in any phase of any proceeding before the Authority. . . is deemed necessary by the Authority, the General Counsel, and any Administrative Law Judge, Regional Director, Hearing Officer, or other agent of the Authority designated by the Authority, such employee shall be granted official time for such participation, including necessary travel time, as occurs during the employee's regular work hours and when the employee would otherwise be in a work or paid leave status. In addition, necessary transportation and per diem expenses shall be paid by the employing activity or agency.

4. 5 U.S.C. § 5751(a) provides, in pertinent part:

Under such regulations as the Attorney General may prescribe, an employee as defined by section 205 of this title . . . summoned, or assigned by his agency, to testify or produce official records on behalf of the United States is entitled to travel expenses under subchapter I of this chapter. If the case involves the activity in connection with which he is employed, the travel expenses are paid from the appropriation otherwise available for travel expenses of the employee under proper certification by a certifying official of the agency concerned. . . .

5. Section 7105(a)(2)(I) provides:

The Authority shall, to the extent provided in this chapter and in accordance with regulations prescribed by the Authority . . . take such other actions as are necessary and appropriate to effectively administer the provisions of this chapter.

6. Section 7131(a) provides, in relevant part:

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. . . .

7. As only that portion of section 7132(c) referring to "mileage allowances" is argued to be relevant to the case herein, we will not address the reference to "fee[s]." We note, however, that Federal employee witnesses are not permitted to accept witness fees. See 5 U.S.C. § 5537(a).

8. We recognize that this litigation leaves unanswered whether section 7105(a)(2)(I) of the Statute authorizes a requirement that employing agencies pay travel and/or per diem expenses in the situations encompassed by section 2429.13 of our Regulations. We will provide an opportunity to address this issue, and any others concerning the validity of Authority regulations concerning expenses of witnesses in ULP proceedings, either through a rulemaking proceeding or a case adjudication, if an appropriate case is presented in a manner that permits more expeditious resolution of such remaining issues.

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