[ v14 p141 ]
14:0141(27)CA
The decision of the Authority follows:
14 FLRA No. 27
DEPARTMENT OF DEFENSE
DEPARTMENTS OF THE ARMY AND AIR FORCE
HQ ARMY AND AIR FORCE EXCHANGE SERVICE
DALLAS, TEXAS
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, INDEPENDENT
Charging Party
Case No. 6-CA-30078
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, granting the General Counsel's Motion for
Summary Judgment, finding that the Respondent had engaged in certain
unfair labor practices, and recommending that the Respondent be ordered
to cease and desist therefrom and take certain affirmative action.
Thereafter, the Respondent filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge and finds that no prejudicial error was committed. The rulings
are hereby affirmed. Upon consideration of the Judge's Decision and the
entire record in this case, the Authority hereby adopts the Judge's
findings, conclusions and recommendations only to the extent consistent
herewith.
The Judge concluded that the Respondent's failure and refusal to pay
travel and per diem expenses to its employees Musette Ingold and Sharon
Williams, which expenses were incurred while serving as Union
representatives in mid-term negotiations conducted since September 17,
1982, constituted a refusal to comply with section 7131(a) of the
Statute in violation of section 7116(a)(1) and (8) of the Statute.
Subsequent to the issuance of the Judge's Decision, the United States
Supreme Court concluded in Bureau of Alcohol, Tobacco and Firearms v.
FLRA, 104 S.Ct. 439(1983) that the obligation of an agency under section
7131(a) of the Statute to provide official time to employees
representing an exclusive representative in the negotiation of a
collective bargaining agreement does not encompass the payment of travel
expenses and per diem allowances. Pursuant to that decision and for the
reasons set forth by the Court, the Authority concludes herein that the
Respondent did not fail or refuse to comply with the provisions of
section 7131(a) of the Statute. Therefore, it follows that the
Respondent did not violate section 7116(a)(1) and (8) of the Statute.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 6-CA-30078 be,
and it hereby is, dismissed. /1/
Issued, Washington, D.C., March 23, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF DEFENSE
DEPARTMENTS OF THE ARMY AND AIR FORCE
HQ ARMY AND AIR FORCE EXCHANGE SERVICE
DALLAS, TEXAS
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, INDEPENDENT
Charging Party
Case No.: 6-CA-30078
James E. Dumerer, Esq.
For the General Counsel
Irene Jackson, Esq.
For the Respondent
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq., (hereinafter
called the Statute), as a result of an unfair labor practice Complaint
and Notice of Hearing issued on February 25, 1983 by the Regional
Director, Region VI, Federal Labor Relations Authority (hereinafter
called the Authority), Dallas, Texas.
The Complaint alleges that the Department of Defense, Departments of
the Army and Air Force, Headquarters Army and Air Force Exchange
Service, Dallas, Texas (herein called respondent) refused to comply with
the provisions of section 7131(a) of the Statute by failing and refusing
to provide reimbursement of travel and per diem expenses incurred by two
employees who attended negotiations on behalf of the National Federation
of Federal Employees, Independent, (herein called the union) in
violation of section 7116(a)(1) and (8) of the Statute.
On March 18, 1983, respondent filed its Answer to the aforesaid
Complaint, admitting the allegations contained in paragraphs 2, 3, 4, 5,
6, 7, 8 and 9 of the Complaint. Thereafter on April 13, 1983, the
General Counsel filed a Motion for Summary Judgment, alleging, in
essence, that all material factual allegations of the Complaint were
admitted, that no litigable issues remained and that the admitted facts
were sufficient to establish a violation of the Statute. On April 13,
1983 the Chief Administrative Law Judge issued an Order postponing the
scheduled hearing in this matter indefinitely. On April 18, 1983,
respondent filed its opposition Motion for Summary Judgment, which
essentially admitted that there were no material factual disputes, but
requesting that the matter be held in abeyance pending decision by the
Supreme Court of the travel and per diem issue. On May 3, 1983, the
Chief Administrative Law Judge issued an Order requiring responses to
the General Counsel's Motion for Summary Judgment be served by May 18,
1983, and that all parties serve any additional statements or Memoranda
of Law on or before June 1, 1983. On May 16, respondent filed an
addendum to its opposition to Motion for Summary Judgment reiterating
its request that the matter be held in abeyance. On May 31, respondent
filed a response to the Chief Judge's Order of May 3 again asking that
the case be held in abeyance. No additional briefs were filed in the
matter.
The purpose of Summary Judgment is to avoid useless, expensive, and
time-consuming trials where there are no genuine issues of material fact
to be tried. Cf. Fed. R. Civ. p. 56; Lyons v. Board of Education,
Charleston Reorganized School District Number 1 of Miss. City, Mo., 523
F.2d 430, 347 (8 Cir., 1975). The Rules and Regulations of the
Authority also specifically authorize the use of Motions for Summary
Judgment in the litigation of unfair labor practice charges under the
Statute. See 5 C.F.R. 2423.19(k)(1980). Moreover, motions in the
nature of Motions for Summary Judgment are deemed appropriate under the
Administrative Procedure Act. See, e.g., Municipal Lightboards of
Reading and Wakefield, Mass. v. Federal Power Commission, 450 Fed.2d
1341, 1345-1346 (D.C. Cir., 1971), Cert. denied, 405 U.S. 989(1972).
Upon examination of the General Counsel's Motion for Summary Judgment
and the respondent's replies thereto, it appears that there are no
genuine issues of material fact and only legal issues are involved. In
such circumstances, the required hearing under the Statute may consist
wholly of an opportunity to present written argument. See F. Davis,
Administrative Law Treatise, 2d Edition, Sections 12.1, 12.10(1979).
See also Section 12.1, at p. 406; Internal Revenue Service, A/SLMR No.
897, 7 A/SLMR 782(1977). The parties have been adequately afforded such
an opportunity.
Findings of Fact
The material admitted facts are as follows:
1. Respondent is an agency within the meaning of 5 U.S.C.
7103(a)(3).
2. The union is a labor organization within the meaning of 5
U.S.C. 7103(a)(4).
3. The union is recognized by respondent as the exclusive
representative in an appropriate bargaining unit.
4. Since on or about September 8 through September 17, 1982,
representatives of respondent and of the union engaged in
negotiations over a collective bargaining agreement covering
employees in an appropriate unit.
5. At all times material herein, respondent has maintained a
policy of granting official time for negotiations to employee
representatives engaged in negotiations with respondent, but has
refused to provide reimbursement for travel and per diem expenses
incurred in such negotiations.
6. Since on or about September 17, 1982, respondent has failed
and refused, and continues to fail and refuse, to reimburse union
representative Musette Ingold, an employee as defined in 5 U.S.C.
7103(a)(2)(A), for travel and per diem expenses incurred with
respect to negotiations involved herein.
7. Since on or about September 17, 1982, respondent has failed
and refused, and continues to fail and refuse, to reimburse Sharon
Williams, an employee as defined in 5 U.S.C. 7103(a)(2)(A) for
travel and per diem expenses incurred with respect to negotiations
involved herein.
Discussion and Conclusions
As already noted, no litigable issues which would require hearing in
this matter remain. Further, respondent's request that the matter be
held in abeyance pending the Supreme Court's decision on the issue is
not accompanied by any persuasive reason why such an action would
effectuate the purposes of the Statute. Respondent submits that despite
the Authority's consistent holdings that failure and refusal to pay for
travel and per diem costs for employees involved in mid-term
negotiations on behalf of a union violates sections 7116(a)(1) and (8)
of the Statute, only the Ninth Circuit, Court of Appeals has upheld the
Authority on the issue while other Circuit Courts of Appeal have held to
the contrary. Notwithstanding the fact that several Circuit Courts have
not, at this time, adopted the Authority position, I am constrained to
follow what is presently Authority law on the matter.
Since respondent has admittedly failed and refused to pay travel and
per diem expenses for employees engaged in mid-term negotiations on
behalf of the union, which according to past Authority decisions
violates the Statute, it is found that respondent violated sections
7116(a)(1) and (8) of the Statute by failing and refusing to pay such
travel and per diem costs. /2/
Having found and concluded that respondent violated section
7116(a)(1) and (8) of the Statute, it is recommended that the General
Counsel's Motion for Summary Judgment be granted, and that the Authority
issue the following Order.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that Department of Defense, Departments of the Army and
Air Force, Headquarters Army and Air Force Exchange Service, Dallas,
Texas shall:
1. Cease and desist from:
(a) Failing and refusing to provide payment of properly
documented travel and per diem expenses, to Musette Ingold and
Sharon Williams, or to any other employee, incurred as a result of
their participation as the duly designated representatives of the
National Federation of Federal Employees Union, Independent, the
employees' exclusive representative, during the negotiation of a
collective bargaining agreement.
(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) Pay Musette Ingold and Sharon Williams, and all other
employees who represented the National Federation of Federal
Employees Union, Independent in negotiations for a collective
bargaining agreement since September 17, 1982, for their travel
and per diem expenses, incurred as a result of their participation
as the duly designated representatives of the National Federation
of Federal Employees Union, Independent.
(b) Post at all of its facilities, where bargaining unit
employees are located, 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 Commander 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
Commander shall take reasonable steps to ensure 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.
ELI NASH, JR.
Administrative Law Judge
Dated: June 21, 1983
Washington, D.C.
APPENDIX
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 STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to provide payment of properly documented
travel and per diem expenses to Musette Ingold and Sharon Williams, or
to any other employee, incurred as a result of their participation as
the duly designated representatives of the National Federation of
Federal Employees Union, Independent, the employees' exclusive
representatives, during the negotiation of a collective bargaining
agreement.
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 pay employees Musette Ingold and Sharon Williams, and all
other employees who represented the National Federation of Federal
Employees Union, Independent in negotiations for a collective bargaining
agreement since September 17, 1982, for their travel and per diem
expenses incurred as a result of their participation as the duly
designated representative of the National Federation of Federal
Employees Union, Independent.
(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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 6,
whose address is: P.O. Box 2640, Dallas, Texas 75221, and whose
telephone number is: (214) 729-4996.
--------------- FOOTNOTES$ ---------------
/1/ The Authority received a motion filed by the Counsel for the
General Counsel seeking to have the case remanded to the Regional
Director for withdrawal of the complaint and dismissal of the charge.
In view of the Authority's disposition on the merits of this case, the
Counsel for the General Counsel's motion is hereby denied.
/2/ See Interpretation and Guidance, 2 FLRA 264(1979); 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); 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. September 4, 1981);
Florida National Guard, 5 FLRA No. 49(1981), appeal docketed, No.
81-5466 (11th Cir. May 18, 1981); Division of Military and Naval
Affairs, State of New York (Albany, New York), 7 FLRA No. 69(1981);
Bureau of the Mint, Department of the Treasury, 7 FLRA No. 70(1981).