[ v01 p933 ]
01:0933(107)MS
The decision of the Authority follows:
1 FLRA No. 107
U.S. DEPARTMENT OF LABOR
Respondent
and
NATIONAL UNION OF COMPLIANCE
OFFICERS, INDEPENDENT
Complainant
CSC Case No. 100
DECISION AND ORDER
ON FEBRUARY 9, 1979, ADMINISTRATIVE LAW JUDGE JOHN J. MCCARTHY ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
SINCE THIS CASE INVOLVES THE U.S. DEPARTMENT OF LABOR AS A PARTY, IT
WAS INITIATED AND PROCESSED PURSUANT TO SECTION 6(E) OF EXECUTIVE ORDER
11491, AS AMENDED, AND WAS PENDING BEFORE THE VICE CHAIRMAN OF THE U.S.
CIVIL SERVICE COMMISSION THEREUNDER ON DECEMBER 31, 1978. ON THAT DATE,
THE FUNCTIONS OF THE VICE CHAIRMAN UNDER E.O. 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040 , WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS, AND RECOMMENDATION. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CSC CASE NO. 100 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 13, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY /2/
MR. LEONARD P. ENGRISSEI
1618 N.E. 75TH
SEATTLE, WASHINGTON, 98115
FOR THE COMPLAINANT
DAVID P. CALLET, ESQUIRE
OFFICE OF THE SOLICITOR
U.S. DEPARTMENT OF LABOR
WASHINGTON, D.C. 20210
FOR THE RESPONDENT
BEFORE: JOHN J. MCCARTHY
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS PROCEEDING ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED (THE
ORDER). THE NATIONAL UNION OF COMPLIANCE OFFICERS (NUCO), AS
COMPLAINANT, ALLEGES THAT THE LABOR-MANAGEMENT SERVICES ADMINISTRATION
(LMSA) OF THE DEPARTMENT OF LABOR (DOL) COMMITTED UNFAIR LABOR PRACTICES
VIOLATIVE OF SECTION 19(A)(1), (2), AND (6) OF THE ORDER. BECAUSE DOL
IS A PARTY, THIS PROCEEDING HAS BEEN HELD BEFORE THEU.S. CIVIL SERVICE
COMMISSION PURSUANT (LINE(S) OF SOURCE CUT OFF BY COPY MACHINE) RECORD
AND MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
FINDINGS OF FACT
PORTIA IGARASHI BEGAN WORKING AS A COMPLIANCE OFFICER FOR LMSA IN
SEPTEMBER OF 1975. SHE WAS ASSIGNED TO THE PORTLAND, OREGON, SUB-OFFICE
OF THE SEATTLE, WASHINGTON AREA OFFICE. AT ALL TIMES RELEVANT TO THIS
CASE, NUCO WAS THE EXCLUSIVE REPRESENTATIVE OF ALL LMSA FIELD EMPLOYEES.
IN MAY OF 1977, JOHN LEMAY, LMSA'S SEATTLE AREA ADMINISTRATOR, AND
GORDON BYRHOLDT, LMSA'S REGIONAL ADMINISTRATOR FOR THE SAN FRANCISCO
REGION, DETERMINED THAT IGARASHI SHOULD BE ASSIGNED FOR AN EXTENDED
PERIOD TO THE SEATTLE OFFICE. THE SOLE REASON FOR THE TRANSFER WAS
IGARSHI'S LACK OF PROGRESS IN PORTLAND. THIS WAS BELIEVED TO BE DUE TO
THE FACT THAT SHE WAS THE ONLY COMPLIANCE OFFICER WORKING ON CASES UNDER
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 (ERISA) AND WAS
THEREFORE DENIED THE BENEFIT OF LEARNING FROM HER PEERS. RECOGNIZING
THAT THERE WERE MORE COMPLIANCE OFFICERS WORKING ON ERISA IN SEATTLE,
IGARASHI AGREED TO THE TRANSFER AS A MEANS OF GAINING SOME ON-THE-JOB
TRAINING.
IGARASHI'S REASSIGNMENT RAISED THE QUESTION OF WHAT AMOUNT OF MONEY
SHE WOULD RECEIVE FOR SUBSISTENCE. LEMAY WAS TOLD BY HIS SUPERIORS TO
NEGOTIATE THE AMOUNT WITH IGARASHI. PURSUANT TO LEMAY'S REQUEST,
IGARASHI LOOKED AT APARTMENTS IN SEATTLE ON JUNE 21 AND 22, 1977. BASED
ON THE RESULTS OF HER APARTMENT SEARCH, SHE PROPOSED AN ALLOWANCE OF
EITHER $26 OR $28 PER DIEM. /3/ LEMAY, HAVING ALREADY RECEIVED A
SUGGESTION OF $13 OR $14 FROM A REGIONAL ADMINISTRATIVE OFFICER, ROBERT
KOENIG, INFORMED IGARASHI THAT HER FIGURE WAS FAR HIGHER THAN LMSA
EXPECTED. LEMAY THEN DISCUSSED THE MATTER WITH GORDON BYRHOLDT.
BYRHOLDT SUGGESTED A COMPROMISE FIGURE OF $20. IN DOING SO, HE RELIED
ON THE PRIOR CASE OF LMSA EMPLOYEE ERNEST SHIMADA. SHIMADA HAD RECEIVED
$20 PER DIEM WHEN TEMPORARILY TRANSFERRED FROM HONOLULU TO SAN FRANCISCO
UNDER CIRCUMSTANCES SIMILAR TO IGARASHI'S. RELUCTANTLY, IGARASHI
ACCEPTED THE $20 FIGURE, AND SHE BEGAN HER SIX MONTH ASSIGNMENT ON JULY
25, 1977. NUCO WAS NEVER REPRESENTED IN, NOR GIVEN PRIOR NOTICE OF,
THESE NEGOTIATIONS BETWEEN MANAGEMENT AND IGARASHI. /4/
CONCLUSIONS
NUCO'S COMPLAINT IS THAT LMSA COMMITTED AN UNFAIR LABOR PRACTICE
VIOLATIVE OF SUBSECTIONS (1), (2), AND (6) OF SECTION 19 OF THE ORDER,
WHEN MR. LEMAY--
BY-PASSED AND DEROGATED THE EXCLUSIVE BARGAINING REPRESENTATIVE
(NUCO) BY NEGOTIATING A
CHANGE IN WORKING CONDITIONS DIRECTLY WITH A MEMBER OF THE UNIT,
WITHOUT AFFORDING NUCO ANY
PRIOR NOTICE OR OPPORTUNITY FOR BARGAINING IN GOOD FAITH.
COMPLAINT, ITEM 3
NUCO ALSO ARGUES THAT IN UNILATERALLY SETTING A RATE OF PER DIEM WITH
THE EMPLOYEE, THE ACTIVITY BREACHED THE TERMS OF THE COLLECTIVE
BARGAINING AGREEMENT (CBA) WITH NUCO RELATING TO PER DIEM AND EFFECTED A
CHANGE IN THE CONDITIONS OF WORK WITHOUT PRIOR CONSULTATION.
RESPONDENT ANSWERS THAT NO VIOLATION OF THE ORDER OCCURRED BECAUSE
(1) THE MATTER DISCUSSED WITH THE EMPLOYEE WAS GOVERNED BY MANDATORY
TRAVEL REGULATIONS AND THEREFORE EXEMPTED BY SECTION 12(A) FROM THE
OBLIGATION TO CONSULT, CONFER OR NEGOTIATE, AND (2) EVEN IF THE TRAVEL
REGULATIONS WERE NOT CONTROLLING, THE DISCUSSIONS WITH THE EMPLOYEE WERE
NOT FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION 10(E) AND THEREFORE
DID NOT OBLIGATE MANAGEMENT TO AFFORD NUCO THE OPPORTUNITY TO BE
REPRESENTED. (LINE(S) CUT OFF OF SOURCE BY COPY MACHINE)
PER DIEM RATE TO BE PAID TO THE EMPLOYEE IN THIS INSTANCE DID NOT
INVOLVE A MATTER AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN
THE UNIT WITHIN THE MEANING OF SECTIONS 10(E) AND 12(D) OF THE ORDER. I
FURTHER FIND THAT THE ALLEGED BREACH OF THE COLLECTIVE BARGAINING
AGREEMENT RELATING TO THE NORMAL ALLOWANCE FOR SUBSISTENCE WAS A
QUESTION WHICH INVOLVED DIFFERING AND ARGUABLE INTERPRETATIONS OF THE
AGREEMENT. FOR THESE REASONS, IT MUST BE HELD THAT THE ACTIVITY DID NOT
VIOLATE SECTION 19(A)(6) OR 19(A)(2) OF THE ORDER IN FAILING TO AFFORD
NUCO PRIOR NOTICE OF THE DISCUSSION WITH MS. IGARASHI AND AN OPPORTUNITY
TO NEGOTIATE THE PER DIEM RATE.
THE MATTER WHICH GAVE RISE TO THE COMPLAINT DID NOT INVOLVE A
UNILATERAL ACTION BY MANAGEMENT TO CHANGE CONDITIONS OF EMPLOYMENT
AFFECTING EMPLOYEES IN THE UNIT. AT THE TIME THE DISCUSSIONS BETWEEN
LEMAY AND IGARASHI TOOK PLACE, THE FEDERAL TRAVEL REGULATIONS AND THE
DEPARTMENT'S TRAVEL REGULATIONS (DEPARTMENT OF LABOR MANUAL SERIES,
SECTION 7.180 ET SEQ. (1977)) CONSTITUTED AN EXISTING CONDITION OF
EMPLOYMENT INSOFAR AS THE REGULATIONS AFFECTED THE PER DIEM RATE TO BE
PAID FOR "TRAVEL ASSIGNMENTS INVOLVING DUTY FOR EXTENDED PERIODS AT
TEMPORARY DUTY STATIONS." FEDERAL TRAVEL REGULATIONS-- FPMR 101-7
(1973), PARA. 1-7.3D PAGE 1-20. THE DEPARTMENT'S OWN REGULATIONS, IN
TURN, PROVIDED IN PART:
EMPLOYEE (ON LONG-TERM TRAINING ASSIGNMENT) AND SUPERVISOR SHOULD
DEVELOP A MUTUALLY
ACCEPTABLE BUDGET OF EXPENSES FOR THE TRAINING . . .
GENERAL TRAVEL REGULATIONS, DLMS, PARA. 7-181
THE CONTROVERSY BETWEEN THE PARTIES DID NOT CONCERN A MANAGEMENT
PROPOSAL TO CHANGE THE TRAVEL REGULATIONS; HENCE, TO THE EXTENT THAT
NUCO CLAIMS THAT A CHANGE IN WORKING CONDITIONS WAS NEGOTIATED DIRECTLY
WITH THE EMPLOYEE, THE COMPLAINT DOES NOT INVOLVE A CHANGE IN THE
REGULATIONS. RATHER, THE COMPLAINT IS BASED ON THE CONTENTION THAT NUCO
HAD THE RIGHT AS A UNION-- APART FROM ANY RIGHTS OF THE EMPLOYEE AS AN
INDIVIDUAL OR AS A UNION MEMBER-- TO RECEIVE PRIOR NOTICE OF
MANAGEMENT'S INTENTION TO DISCUSS THE PER DIEM RATE WITH THE EMPLOYEE
AND TO NEGOTIATE THE GENERAL QUESTION OF WHETHER THE REGULATIONS WHICH
PROVIDE FOR A REDUCTION IN THE NORMAL PER DIEM RATE WERE APPLICABLE IN
MS. IGARASHI'S CASE AND IN SIMILAR CASES IN THE FUTURE.
THE RATE OF PER DIEM NEGOTIATED BETWEEN MS. IGARASHI AND THE ACTIVITY
AFFECTED ONLY MS. IGARASHI AND APPLIED ONLY TO HER TEMPORARY ASSIGNMENT
TO THE SEATTLE AREA OFFICE. THE RATE WAS NOT APPLICABLE TO OTHER
SIMILAR ASSIGNMENTS, FOR EACH ASSIGNMENT OF THAT NATURE IN THE FUTURE
WOULD BE SUBJECT TO INDIVIDUAL NEGOTIATION AND NOT CONTROLLED BY THE
AMOUNT AGREED TO IN MS. IGARASHI'S CASE. ACCORDINGLY, SINCE THE
IGARASHI CASE WAS NOT A BINDING- PRECEDENT, IT DID NOT IMPINGE ON THE
"WORKING CONDITIONS" OF OTHER EMPLOYEES IN THE UNIT.
LMSA MANAGEMENT CONSISTENTLY TESTIFIED THAT THERE WAS NO INTENT TO
AFFECT OTHER EMPLOYEES OR TO SET PRECEDENT WITH THE RATE DETERMINATION
MADE IN THE IGARASHI CASE. ON THE BASIS OF ITS EXPERIENCE IN THIS
INSTANCE AND IN THE ONLY OTHER CASE INVOLVING A SIMILAR ASSIGNMENT, THE
ACTIVITY HAS FOUND THE PROCEDURE TO BE INEFFICIENT AND HAS DECIDED TO
ASSIGN NEW EMPLOYEES IN THE FUTURE TO LARGE OFFICES, THEREBY OBVIATING
THE NEED FOR LATER, TEMPORARY TRANSFERS OF THE KIND INVOLVED HEREIN.
MANAGEMENT'S EVIDENCE ON THIS MATTER IS NOT SIMPLY SELF-SERVING AND CAN
BE ACCEPTED AS BEING PRESENTED IN GOOD FAITH, FOR THE ACTIVITY WAS
ALWAYS WILLING TO CHANGE IGARASHI'S PER DIEM WITH PROOF OF HARDSHIP.
NUCO HAS NOT CONTRADICTED THIS TESTIMONY.
MOREOVER, AS NOTED, PER DIEM IS BY ITS NATURE PECULIAR TO EACH CASE,
DETERMINED ACCORDING TO SUCH CIRCUMSTANCES AS THE PARTICULAR SITE, THE
TIME PERIOD, AND THE EMPLOYEE INVOLVED IN THE EXTENDED DUTY. IN
CONSIDERATION OF THE SEVERAL POINTS DISCUSSED, I CONCLUDE THAT THE
ACTIVITY DID NOT NEGOTIATE A CHANGE IN WORKING CONDITIONS VIOLATIVE OF
SECTION 19(A)(6) WHEN IT SET THE PER DIEM DIRECTLY WITH IGARASHI. THE
ARGUMENT PRESENTED BY NUCO TO THE EFFECT THAT THE PER DIEM WAS
CONTROLLED BY THE CBA AND THAT THE RESPONDENT MISAPPLIED THE REGULATIONS
RELATING TO EXTENDED PERIODS OF TRAINING DUTY DOES NOT ESTABLISH A
VIOLATION OF THE ORDER. THE BELIEF OF MANAGEMENT OFFICIALS THAT THE
CONTRACT WAS NOT DETERMINATIVE WAS BOTH REASONABLE AND HELD IN FOOD
FAITH. SINCE THERE WAS NO CLEAR, UNILATERAL BREACH OF THE CONTRACT
BETWEEN NUCO AND LMSA BUT RATHER REASONABLE AND CONFLICTING
INTERPRETATION OF ITS PROVISIONS, NO VIOLATION OF SECTION 19(A) IS SHOWN
BY MANAGEMENT'S FAILURE TO GIVE PRIOR NOTICE AND AN OPPORTUNITY TO
CONFER REGARDING THE PER DIEM QUESTION. WATERVLIET ARSENAL, U.S. ARMY
ARMAMENT COMMAND, WATERVLIET, NEW YORK, A/SLMR 726(1976); AEROSPACE
GUIDANCE AND METEOROLOGY CENTER, NEWARK AIR FORCE STATION, NEWARK, OHIO,
A/SLMR 677(1976). (LINE(S) OF SOURCE CUT OFF BY COPY MACHINE)
NEGOTIATION OF THE PER DIEM RATE BETWEEN EMPLOYEE AND SUPERVISOR,
THEY DO NOT EXPRESSLY OR IMPLIEDLY EXCLUDE THE BARGAINING REPRESENTATIVE
FROM PARTICIPATION. IT DOES NOT NECESSARILY FOLLOW FROM THAT FACT,
HOWEVER, THAT NUCO HAS A RIGHT TO RECEIVE PRIOR NOTICE OR TO NEGOTIATE
THE MATTER INDEPENDENTLY ON BEHALF OF ALL EMPLOYEES IN THE UNIT. ON THE
CONTRARY, IT HAS BEEN FOUND THAT THE UNION DOES NOT HAVE SUCH A RIGHT
UNDER THE ORDER BECAUSE THE EFFECT OF THE REGULATION WAS LIMITED TO THE
INDIVIDUAL EMPLOYEE. FLRC 75P-2, REPT. NO. 116 (1976). MOREOVER, THE
RECORD CONTAINS NO EVIDENCE TO SUPPORT A CONCLUSION THAT MANAGEMENT
DISCRIMINATED AGAINST ANY EMPLOYEE BECAUSE OF UNION MEMBERSHIP OR
ACTIVITY-- LMSA MANAGEMENT HONESTLY BELIEVED THAT THE UNION HAD NOTHING
TO DO WITH PER DIEM NEGOTIATIONS. IN SUCH CIRCUMSTANCES, THERE IS NO
VIOLATION OF SECTION 19(A)(2). SEE TENNESSEE VALLEY AUTHORITY, A/SLMR
509
RECOMMENDATION
HAVING FOUND THAT RESPONDENT ACTIVITY AND RESPONDENT AGENCY HAVE NOT
ENGAGED IN CERTAIN CONDUCT PROHIBITED BY SECTION 19(A)(1), (2) AND (6)
OF EXECUTIVE ORDER 11491, AS AMENDED, I RECOMMEND THAT THE COMPLAINT
HEREIN BE DISMISSED IN ITS ENTIRETY.
JOHN J. MCCARTHY
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 9, 1979
WASHINGTON, D.C.
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
STATES SENATE AS A MEMBER OF THE AUTHORITY.
/3/ THERE IS A DISPUTE AS TO WHICH AMOUNT IGARASHI PROPOSED, BUT IT
IS IRRELEVANT TO THE OUTCOME OF THIS CASE.
/4/ IN VIEW OF THE LEGAL CONCLUSIONS SET FORTH, INFRA, SUBSEQUENT
EVENTS INVOLVING THE ASSERTION OF RIGHTS ON BEHALF OF NUCO AND THE
FILING OF A GRIEVANCE BY A SHOP STEWARD ARE DEEMED IRRELEVANT AND WILL
NOT BE SET OUT IN THIS DECISION.