[ v02 p265 ]
02:0265(31)PS
The decision of the Authority follows:
2 FLRA No. 31
Case Nos. 0-PS-3 and 0-PS-6
INTERPRETATION AND GUIDANCE
AS PREVIOUSLY ANNOUNCED, /1/ THE AUTHORITY DETERMINED, IN CONFORMITY
WITH ITS RULES AND REGULATIONS AND THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (92 STAT. 1191), THAT AN INTERPRETATION OF THE STATUTE
WAS WARRANTED ON THE FOLLOWING:
1) WHETHER EMPLOYEES WHO ARE ON OFFICIAL TIME UNDER SECTION 7131 OF
THE STATUTE
REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF A
COLLECTIVE BARGAINING
AGREEMENT ARE ENTITLED TO PAYMENTS FROM AGENCIES FOR THEIR TRAVEL AND
PER DIEM EXPENSES.
2) WHETHER THE OFFICIAL TIME PROVISIONS OF SECTION 7131(A) OF THE
STATUTE ENCOMPASS ALL
NEGOTIATIONS BETWEEN AN EXCLUSIVE REPRESENTATIVE AND AN AGENCY,
REGARDLESS OF WHETHER SUCH
NEGOTIATIONS PERTAIN TO THE NEGOTIATION OR RENEGOTIATION OF A BASIC
COLLECTIVE BARGAINING
AGREEMENT.
CONCURRENTLY, THE AUTHORITY INVITED INTERESTED PERSONS TO EXPRESS
THEIR VIEWS IN WRITING WITH RESPECT TO THE ABOVE MATTERS, INCLUDING THE
IMPACT, IF ANY, OF SECTION 7135(A)(1) OF THE STATUTE (92 STAT. 1215) ON
THESE MATTERS. THE RESPONSES SUBMITTED TO THE AUTHORITY WERE MOST
THOROUGH AND HELPFUL AND HAVE BEEN CAREFULLY CONSIDERED. IN VIEW OF THE
DEPTH AND SCOPE OF THESE SUBMISSIONS, THE AUTHORITY HAS DETERMINED THAT
NO USEFUL PURPOSE WOULD BE SERVED BY PROVIDING FOR AN ORAL PRESENTATION
OF VIEWS.
SECTION 7131 OF THE STATUTE
AS INDICATED ABOVE, BOTH MATTERS AT ISSUE PERTAIN TO SECTION 7131 OF
THE STATUTE (92 STAT. 1214), WHICH READS AS FOLLOWS:
SEC. 7131. OFFICIAL TIME
(A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
NEGOTIATION OF A
COLLECTIVE BARGAINING AGREEMENT UNDER THIS (STATUTE) 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.
(B) ANY ACTIVITIES PERFORMED BY ANY EMPLOYEE RELATING TO THE INTERNAL
BUSINESS OF A LABOR
ORGANIZATION (INCLUDING THE SOLICITATION OF MEMBERSHIP, ELECTIONS OF
LABOR ORGANIZATION
OFFICIALS, AND COLLECTION OF DUES) SHALL BE PERFORMED DURING THE TIME
THE EMPLOYEE IS IN A
NON-DUTY STATUS.
(C) 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.
(D) EXCEPT AS PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS SECTION--
(1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
(2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS (STATUTE),
ANY EMPLOYEE IN AN
APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE, SHALL BE
GRANTED OFFICIAL TIME IN
ANY AMOUNT THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE INVOLVED AGREE
TO BE REASONABLE,
NECESSARY, AND IN THE PUBLIC INTEREST.
WE TURN TO THE APPLICATION OF THE ABOVE-QUOTED PROVISIONS, AND
PARTICULARLY SECTION 7131(A), TO THE MATTERS HERE IN QUESTION. FOR
CONVENIENCE OF DISCUSSION, WE SHALL CONSIDER THE QUESTIONS IN REVERSE
ORDER.
NATURE OF NEGOTIATIONS TO WHICH OFFICIAL TIME APPLIES
THE SECOND OF THE TWO MATTERS AT ISSUE IS THE FOLLOWING:
WHETHER THE OFFICIAL TIME PROVISIONS OF SECTION 7131(A) OF THE
STATUTE ENCOMPASS ALL
NEGOTIATIONS BETWEEN AN EXCLUSIVE REPRESENTATIVE AND AN AGENCY,
REGARDLESS OF WHETHER SUCH
NEGOTIATIONS PERTAIN TO THE NEGOTIATION OR RENEGOTIATION OF A BASIC
COLLECTIVE BARGAINING
AGREEMENT.
SECTION 7131(A) EXPRESSLY STATES IN RELEVANT PART THAT "(A)NY
EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF
A COLLECTIVE BARGAINING AGREEMENT UNDER THIS (STATUTE) SHALL BE
AUTHORIZED OFFICIAL TIME FOR SUCH PURPOSES, INCLUDING ATTENDANCE AT
IMPASSE PROCEEDING(S)." THIS SECTION THUS PROVIDES THAT WHEN AN
EXCLUSIVE REPRESENTATIVE AND AN AGENCY UNDERTAKE THE NEGOTIATION OF A
"COLLECTIVE BARGAINING AGREEMENT," AN EMPLOYEE REPRESENTING THE
EXCLUSIVE REPRESENTATIVE IN THAT UNDERTAKING MUST BE AUTHORIZED OFFICIAL
TIME FOR SUCH PURPOSES.
IN THIS CONNECTION, THE PHRASE" COLLECTIVE BARGAINING AGREEMENT" IN
SECTION 7131(A) IS DEFINED AT SECTION 7103(A)(8) (92 STAT. 1193), AS
FOLLOWS:
(8) "COLLECTIVE BARGAINING AGREEMENT" MEANS AN AGREEMENT ENTERED INTO
AS A RESULT OF
COLLECTIVE BARGAINING PURSUANT TO THE PROVISIONS OF THIS (STATUTE).
THE PHRASE, "COLLECTIVE BARGAINING," IN TURN, IS DEFINED IN SECTION
7103(A)(12) (92 STAT. 1194) AS FOLLOWS:
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES AND TO EXECUTE, IF REQUESTED BY EITHER PARTY, A WRITTEN
DOCUMENT INCORPORATING ANY
COLLECTIVE BARGAINING AGREEMENT REACHED, BUT THE OBLIGATION REFERRED
TO IN THIS PARAGRAPH DOES
NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A
CONCESSION(.)
IT IS APPARENT FROM THE SPECIFIC LANGUAGE IN THESE DEFINITIONS THAT A
"COLLECTIVE BARGAINING AGREEMENT" IS ANY AGREEMENT THAT IS ENTERED INTO
AS A RESULT OF THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE PARTIES
TO BARGAIN IN A GOOD-FAITH EFFORT TO REACH AGREEMENT WITH RESPECT TO
CONDITIONS OF EMPLOYMENT AFFECTING EMPLOYEES IN THE APPROPRIATE UNIT.
CONSEQUENTLY, THE LANGUAGE REFLECTS THE INTENT OF CONGRESS THAT THE
ENTITLEMENT OF OFFICIAL TIME UNDER SECTION 7131(A) WOULD ENCOMPASS ALL
NEGOTIATIONS BETWEEN AN EXCLUSIVE REPRESENTATIVE AND AN AGENCY,
REGARDLESS OF WHETHER SUCH NEGOTIATIONS PERTAIN TO THE NEGOTIATION OR
RENEGOTIATION OF A BASIC COLLECTIVE BARGAINING AGREEMENT.
SUCH CONCLUSION AS TO THE INTENT OF CONGRESS IS SUPPORTED BY THE
LEGISLATIVE HISTORY OF SECTION 7131(A) OF THE STATUTE. MORE
PARTICULARLY, SECTION 7131(A) IS IDENTICAL TO SECTION 7132(A) OF THE
BILL (H.R. 11280) REPORTED TO THE HOUSE BY THE HOUSE POST OFFICE AND
CIVIL SERVICE COMMITTEE. /2/ IN ADOPTING THE PROVISIONS IN SECTION
7132(A) OF THE HOUSE BILL, CONGRESS REJECTED THE RELEVANT LANGUAGE IN
SECTION 7232 OF THE BILL (S. 2640) REPORTED TO THE SENATE BY THE SENATE
GOVERNMENTAL AFFAIRS COMMITTEE. /3/ THAT SECTION OF THE SENATE BILL HAD
SOUGHT, IN EFFECT, TO MAINTAIN THE RESTRICTIONS IMPOSED UPON THE USE OF
OFFICIAL TIME FOR NEGOTIATIONS BY EMPLOYEES REPRESENTING UNIONS AS
ESTABLISHED IN E.O. 11491, AS AMENDED.
SIGNIFICANTLY, AS TO SECTION 7232 OF THE SENATE BILL, THE SENATE
COMMITTEE REPORT HAD STATED THAT IT APPLIED "TO THE NEGOTIATION OR
RENEWAL OF A BASIC COLLECTIVE BARGAINING AGREEMENT, AS OPPOSED TO
NEGOTIATIONS WHICH ARISE OUT OF CIRCUMSTANCES DURING THE TERM OF THE
BASIC AGREEMENT". /4/ THE HOUSE BILL WHICH WAS ADOPTED BY CONGRESS
CONTAINS WHOLLY DIFFERENT PROVISIONS ON THE RELEVANT SUBJECT OF OFFICIAL
TIME, AND THERE IS NO INDICATION WHATSOEVER THAT CONGRESS INTENDED TO
LIMIT THE USE OF OFFICIAL TIME TO THE NEGOTIATION OF BASIC AGREEMENTS AS
CONTEMPLATED BY THE REJECTED LANGUAGE OF THE SENATE BILL.
THUS, THE LEGISLATIVE HISTORY DEMONSTRATES THAT CONGRESS INTENDED,
CONSISTENT WITH THE SPECIFIC LANGUAGE OF SECTION 7131(A) AND THE RELATED
DEFINITIONS IN SECTION 7103(A)(8) AND (12), THAT THE ENTITLEMENT OF
OFFICIAL TIME UNDER SECTION 7131(A) WOULD APPLY WHENEVER THE PARTIES
UNDERTAKE THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT.
APART FROM THE LITERAL LANGUAGE AND LEGISLATIVE HISTORY OF SECTION
7131(A) OF THE STATUTE, THE CONCLUSION THAT CONGRESS INTENDED THAT
OFFICIAL TIME APPLY TO THE NEGOTIATION OF ANY COLLECTIVE BARGAINING
AGREEMENT IS SUPPORTED BY THE EXPRESS FINDINGS AND PURPOSE OF THE
STATUTE AS STATED IN SECTION 7101(A), NAMELY, THAT "LABOR ORGANIZATIONS
AND COLLECTIVE BARGAINING IN THE CIVIL SERVICE ARE IN THE PUBLIC
INTEREST." CERTAINLY, IT WOULD IMPLEMENT THE ENDS OF COLLECTIVE
BARGAINING TO SANCTION OFFICIAL TIME FOR ALL NEGOTIATIONS BETWEEN AN
EXCLUSIVE REPRESENTATIVE AND AN AGENCY, REGARDLESS OF WHETHER SUCH
NEGOTIATIONS PERTAIN TO THE NEGOTIATION OR RENEGOTIATION OF A BASIC
COLLECTIVE BARGAINING AGREEMENT. FOR ONLY IN SUCH MANNER MAY EFFECTIVE
UNION REPRESENTATION COMPARABLE TO THE REPRESENTATION OF MANAGEMENT BE
ACHIEVED UNDER THE STATUTE, AND ONLY IN THIS MANNER MAY BOTH PARTIES
EFFECTIVELY FULFILL THEIR RESPECTIVE OBLIGATIONS UNDER SECTION 7114(B)
OF THE STATUTE (92 STAT. 1202) "TO MEET AT REASONABLE TIMES . . . AS
FREQUENTLY AS MAY BE NECESSARY" FOR GOOD-FAITH NEGOTIATIONS ON
CONDITIONS OF EMPLOYMENT OF THE UNIT EMPLOYEES.
ACCORDINGLY, FOR THE REASONS STATED ABOVE, IT IS CONCLUDED THAT THE
OFFICIAL TIME PROVISIONS OF SECTION 7131(A) OF THE STATUTE ENCOMPASS ALL
NEGOTIATIONS BETWEEN AN EXCLUSIVE REPRESENTATIVE AND AN AGENCY,
REGARDLESS OF WHETHER SUCH NEGOTIATIONS PERTAIN TO THE NEGOTIATION OR
RENEGOTIATION OF A BASIC COLLECTIVE BARGAINING AGREEMENT.
ENTITLEMENT OF EMPLOYEES ON OFFICIAL TIME TO TRAVEL AND PER DIEM
EXPENSES
AS MENTIONED AT THE OUTSET, THE OTHER MATTER HERE AT ISSUE IS THE
FOLLOWING:
WHETHER EMPLOYEES WHO ARE 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 PAYMENTS FROM AGENCIES FOR THEIR TRAVEL AND
PER DIEM EXPENSES.
ON THIS ISSUE IT IS CLEAR FROM THE STATUTE THAT EMPLOYEES WHO ARE ON
OFFICIAL TIME UNDER SECTION 7131 WHILE REPRESENTING AN EXCLUSIVE
REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT
ARE ENTITLED TO PAYMENTS FROM AGENCIES FOR THEIR TRAVEL AND PER DIEM
EXPENSES.
AS PREVIOUSLY SET FORTH, SECTION 7131(A), WHICH IS PRINCIPALLY HERE
INVOLVED, PROVIDES THAT AN EMPLOYEE REPRESENTING AN EXCLUSIVE
REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT
SHALL BE ON OFFICIAL TIME "DURING THE TIME THE EMPLOYEE OTHERWISE WOULD
BE IN A DUTY STATUS." AS EXPLAINED IN THE HOUSE REPORT, AN EMPLOYEE
SERVING AS A UNION REPRESENTATIVE IS AUTHORIZED "PAID TIME" WHILE
ENGAGING IN THE NEGOTIATION ACTIVITIES PROVIDED FOR IN SECTION 7131(A)
OF THE STATUTE. /5/ HENCE, WHILE AN EMPLOYEE IS ON OFFICIAL TIME
REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF A
COLLECTIVE BARGAINING AGREEMENT, THAT EMPLOYEE IS ON PAID TIME ENTITLED
TO HIS OR HER USUAL COMPENSATION AND IS NOT IN LEAVE STATUS.
NEITHER THE STATUTE, NOR ITS LEGISLATIVE HISTORY, EXPRESSLY ADVERTS
TO THE PAYMENT OF TRAVEL EXPENSES OR PER DIEM DURING PARTICIPATION IN
THESE NEGOTIATION ACTIVITIES. /6/ HOWEVER, IT IS WELL ESTABLISHED THAT
SUCH EXPENSES ARE AUTHORIZED WHEN AN EMPLOYEE "IS ENGAGED ON OFFICIAL
BUSINESS FOR THE GOVERNMENT" (CHAPTER 57, SUBCHAPTER I - TRAVEL AND
SUBSISTENCE EXPENSES; MILEAGE ALLOWANCES, 5 U.S.C.5701, ET SEQ.). AS
ALREADY MENTIONED, CONGRESS, IN ADOPTING THE STATUTE, SPECIFICALLY FOUND
IN SECTION 7101(A) THAT COLLECTIVE BARGAINING "CONTRIBUTES TO THE
EFFECTIVE CONDUCT OF PUBLIC BUSINESS," AND THAT "COLLECTIVE BARGAINING
IN THE CIVIL SERVICE (IS) IN THE PUBLIC INTEREST." FURTHER, CONGRESS
EXPRESSLY MANDATED IN SECTIONS 7114 AND 7116(A)(5) AND (B)(5) THAT SUCH
NEGOTIATIONS BE CONDUCTED IN GOOD FAITH BY THE PARTIES INVOLVED (92
STAT. 1202, 1204). THUS, AN EMPLOYEE, WHILE NEGOTIATING A COLLECTIVE
BARGAINING AGREEMENT AS A UNION REPRESENTATIVE AND WHILE ON PAID TIME
ENTITLED TO HIS OR HER USUAL COMPENSATION AND NOT IN A LEAVE STATUS, IS
CLEARLY ENGAGED ON "OFFICIAL BUSINESS FOR THE GOVERNMENT."
ADDITIONALLY, IT IS NOT CONTROVERTED THAT MANAGEMENT REPRESENTATIVES
ARE UNIFORMLY PAID TRAVEL EXPENSES AND PER DIEM WHEN ENGAGED IN THE
NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT ON BEHALF OF
MANAGEMENT, AND CONGRESS INDICATED ITS INTENT THAT SIMILAR PREROGATIVES
BE ACCORDED EMPLOYEES SERVING AS UNION REPRESENTATIVES LIKEWISE ENGAGED
IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT. IN THIS
CONNECTION, REPRESENTATIVE CLAY, IN DISCUSSING THE PROSCRIPTION OF
OFFICIAL TIME FOR EMPLOYEES ENGAGED IN INTERNAL UNION BUSINESS UNDER
SECTION 7132(B) OF THE HOUSE BILL (WHICH WAS ENACTED AS SECTION 7131(B)
OF THE STATUTE) STATED AS FOLLOWS: /7/
SECTION 7132(B) OF THE UDALL COMPROMISE BARS THE USE OF OFFICIAL TIME
FOR CONDUCTING THE
INTERNAL BUSINESS OF A LABOR ORGANIZATION . . . . ACTIVITIES THAT
INVOLVE LABOR-MANAGEMENT
CONTACTS ARE NOT INCLUDED IN THIS SECTION . . . TITLE VII IMPOSES
HEAVY RESPONSIBILITIES ON
LABOR ORGANIZATIONS AND ON AGENCY MANAGEMENT. THESE ORGANIZATIONS
SHOULD BE ALLOWED OFFICIAL
TIME TO CARRY OUT THEIR STATUTORY REPRESENTATIONAL ACTIVITIES JUST AS
MANAGEMENT USES OFFICIAL
TIME TO CARRY OUT ITS RESPONSIBILITIES.
THE PAYMENT OF TRAVEL AND PER DIEM EXPENSES WOULD NOT ONLY MORE
NEARLY EQUATE THE STATUS OF UNION AND MANAGEMENT NEGOTIATORS AS
CONTEMPLATED BY CONGRESS, BUT WOULD ALSO FACILITATE MORE EFFECTIVE UNION
REPRESENTATION AT THE BARGAINING TABLE, THEREBY IMPLEMENTING THE PURPOSE
OF THE STATUTE, AS REFLECTED IN SECTION 7101(A), TO ENCOURAGE COLLECTIVE
BARGAINING IN THE FEDERAL SECTOR.
FINALLY, IT SHOULD BE NOTED THAT SECTION 7131(C) OF THE STATUTE,
IDENTICAL AS HERE RELEVANT TO SECTION 7131(A), PROVIDES THAT:
(C) 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.
THE AUTHORITY HAS PREVIOUSLY INTERPRETED THIS LANGUAGE OF THE STATUTE
IN SECTION 2429.13 OF ITS INTERIM RULES AND REGULATIONS, AS ENTITLING
THE EMPLOYEE ON SUCH OFFICIAL TIME TO TRANSPORTATION AND PER DIEM
EXPENSES (44 FED. REG. 44771 (JULY 30, 1979)). NO PERSUASIVE REASON HAS
BEEN ADVANCED FOR A CONTRARY INTERPRETATION OF THE ANALOGOUS LANGUAGE IN
SECTION 7131(A) OF THE STATUTE, AND NO SUPPORTED CHALLENGE HAS BEEN
ADVANCED REGARDING THE LEGALITY OF THE AUTHORITY'S PRIOR INTERPRETATION
OF THE SAME CRITERIA LANGUAGE IN SECTION 7131(C).
IN SUMMARY, ANY EMPLOYEE WHO IS ON OFFICIAL TIME UNDER SECTION 7131
OF THE STATUTE WHILE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT IS ENTITLED TO PAYMENTS
FROM AGENCIES FOR THEIR DUTY TIME AND TRAVEL AND PER DIEM EXPENSES.
IMPACT OF SAVINGS PROVISIONS IN THE STATUTE
LASTLY, THE QUESTION AS TO THE IMPACT, IF ANY, OF THE SAVINGS
PROVISIONS IN SECTION 7135(A)(1) OF THE STATUTE ON THE ABOVE MATTERS
MUST BE CONSIDERED. /8/ MORE SPECIFICALLY, THE QUESTION IS WHETHER
PROVISIONS IN EXISTING AGREEMENTS WHICH ARE MORE RESTRICTIVE THAN
SECTION 7131(A) ON THE GRANTING OF OFFICIAL TIME, AS WELL AS THE PAYMENT
OF TRAVEL AND PER DIEM EXPENSES, FOR EMPLOYEES REPRESENTING A UNION IN
THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT, REMAIN OPERATIVE
UNDER SECTION 7135(A)(1) OF THE STATUTE.
SECTION 7135(A)(1) READS IN RELEVANT PART AS FOLLOWS:
(A) NOTHING CONTAINED IN THIS (STATUTE) SHALL PRECLUDE--
(1) THE RENEWAL OR CONTINUATION OF . . . A LAWFUL AGREEMENT BETWEEN
AN AGENCY AND AN
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, WHICH IS ENTERED INTO
BEFORE THE EFFECTIVE DATE OF
THIS (STATUTE)(.)
BY THIS EXPRESS LANGUAGE OF SECTION 7135(A)(1), NOTHING IN THE
STATUTE PRECLUDES THE PARTIES TO A LAWFUL AGREEMENT IN EXISTENCE ON
JANUARY 11, 1979, THE EFFECTIVE DATE OF THE STATUTE, FROM MUTUALLY
RENEWING OR CONTINUING THE TERMS OF THAT AGREEMENT IF THEY SO DESIRE.
THUS, FOR EXAMPLE, IF THE PROVISIONS OF AN EXISTING AGREEMENT LIMIT THE
AUTHORIZATION OF OFFICIAL TIME TO EMPLOYEE REPRESENTATIVES OF A UNION IN
THE NEGOTIATION OF A BASIC COLLECTIVE BARGAINING AGREEMENT, NOTHING IN
THE STATUTE PRECLUDES THE PARTIES TO SUCH AN EXISTING AGREEMENT, IF THEY
WISH, FROM MUTUALLY RENEWING OR CONTINUING THE TERMS OF THAT AGREEMENT.
HOWEVER, WHERE A LABOR ORGANIZATION OR AN AGENCY OBJECTS TO THE
CONTINUATION OR RENEWAL OF A PROVISION RELATING TO OFFICIAL TIME MORE
RESTRICTIVE THAN SECTION 7131(A), SUCH OBJECTION PREVENTS THE
CONTINUATION OR RENEWAL OF THE AGREEMENT PROVISION UNDER SECTION
7135(A)(1) OF THE STATUTE. IN THAT SITUATION, THE PROVISIONS OF SECTION
7131(A) WOULD BE IMMEDIATELY OPERATIVE. THAT IS, ANY EMPLOYEE
REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF A
COLLECTIVE BARGAINING AGREEMENT WOULD BE ENTITLED TO OFFICIAL TIME,
REGARDLESS OF WHETHER SUCH NEGOTIATIONS PERTAIN TO THE NEGOTIATION OR
RENEGOTIATION OF A BASIC COLLECTIVE BARGAINING AGREEMENT, AND ANY
EMPLOYEE ON SUCH OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE
WOULD BE ENTITLED TO PAYMENTS FROM THE AGENCY FOR THEIR TRAVEL AND PER
DIEM EXPENSES.
CONCLUSION
IT IS THE AUTHORITY'S INTERPRETATION AND GUIDANCE THAT:
1. THE OFFICIAL TIME PROVISIONS OF SECTION 7131(A) OF THE STATUTE
ENCOMPASS NEGOTIATIONS BETWEEN AN EXCLUSIVE REPRESENTATIVE AND AN
AGENCY, REGARDLESS OF WHETHER SUCH NEGOTIATIONS PERTAIN TO THE
NEGOTIATION OR RENEGOTIATION OF A BASIC COLLECTIVE BARGAINING AGREEMENT.
2. EMPLOYEES WHO ARE 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
PAYMENTS FROM AGENCIES FOR THEIR DUTY TIME AND TRAVEL AND PER DIEM
EXPENSES.
3. PROVISIONS IN AGREEMENTS EXISTING ON JANUARY 11, 1979, THE
EFFECTIVE DATE OF THE STATUTE, WHICH ARE MORE RESTRICTIVE THAN SECTION
7131(A) OF THE STATUTE ON THE GRANTING OF OFFICIAL TIME, AS WELL AS THE
PAYMENT OF TRAVEL AND PER DIEM EXPENSES, FOR EMPLOYEES REPRESENTING A
UNION IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT MAY BE
RENEWED OR CONTINUED IF THE PARTIES SO DESIRE, UNDER SECTION 7135(A)(1)
OF THE STATUTE. HOWEVER, IF EITHER PARTY TO SUCH PROVISIONS IN AN
EXISTING AGREEMENT OBJECTS TO THE CONTINUATION OR RENEWAL THEREOF, SUCH
OBJECTION PREVENTS THE CONTINUATION OR RENEWAL OF THOSE AGREEMENT
PROVISIONS UNDER SECTION 7135(A)(1) OF THE STATUTE.
ISSUED, WASHINGTON, D.C., DECEMBER 19, 1979.
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ FEDERAL LABOR RELATIONS AUTHORITY, NOTICE RELATING TO OFFICIAL
TIME, 44 FED.REG. 42,788 (JULY 20, 1979).
/2/ SEE H.R. REP. NO. 95-1403, 95TH CONG., 2D SESS. 288(1978).
/3/ SECTION 7232 OF THE SENATE BILL PROVIDED:
SOLICITATION OF MEMBERSHIP OR DUES AND OTHER INTERNAL BUSINESS OF A
LABOR ORGANIZATION
SHALL BE CONDUCTED DURING THE NON-DUTY HOURS OF THE EMPLOYEES
CONCERNED. EMPLOYEES WHO
REPRESENT A RECOGNIZED LABOR ORGANIZATION SHALL NOT BE ON OFFICIAL
TIME WHEN NEGOTIATING AN
AGREEMENT WITH AGENCY MANAGEMENT, EXCEPT THAT THE NEGOTIATING PARTIES
MAY AGREE TO
ARRANGEMENTS WHICH PROVIDE THAT THE AGENCY WILL AUTHORIZE A
REASONABLE NUMBER OF SUCH
EMPLOYEES (NOT NORMALLY IN EXCESS OF THE NUMBER OF MANAGEMENT
REPRESENTATIVES) TO NEGOTIATE ON
OFFICIAL TIME FOR UP TO 40 HOURS, OR UP TO ONE-HALF THE TIME SPENT IN
NEGOTIATIONS DURING
REGULAR WORKING HOURS.
/4/ S. REP. NO. 95-969, 95TH CONG., 2D SESS. 112(1978).
/5/ H.R. REP. 95-1403, 95TH CONG., 2D SESS. 58(1978).
/6/ UNDER SECTION 20 OF E.O. 11491, AS AMENDED, TRAVEL EXPENDITURES
WERE NOT AUTHORIZED FOR UNION REPRESENTATIVES ENGAGED IN NEGOTIATION
ACTIVITIES (LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE(1975) AT
58). HOWEVER, AS PREVIOUSLY INDICATED, CONGRESS SUBSTANTIALLY REJECTED
SECTION 7232 OF THE SENATE BILL WHICH SOUGHT IN EFFECT TO MAINTAIN THE
LANGUAGE OF THE ORDER. MOREOVER, UNLIKE UNDER SECTION 20 OF THE ORDER
WHICH STRICTLY LIMITED THE AMOUNT OF OFFICIAL TIME WHICH MIGHT BE
AUTHORIZED FOR NEGOTIATION ACTIVITIES BY UNION REPRESENTATIVES, SECTION
7131(A) OF THE STATUTE CONTAINS NO SUCH LIMITATION. FURTHER, UNLIKE
UNDER THE ORDER, THE ENCOURAGEMENT OF COLLECTIVE BARGAINING IS A STATED
PURPOSE OF THE STATUTE.
/7/ 124 CONG. REC. H9,638 (DAILY ED. SEPT. 13, 1978).
/8/ THE SAVINGS CLAUSE IN SECTION 7135(B) OF THE STATUTE (92 STAT.
1215) IS CLEARLY WITHOUT IMPACT, SINCE THE PROVISIONS OF SECTION
7131(A), WHICH ARE HERE INVOLVED, ARE COMPLETELY DIFFERENT FROM THE
RELATED PROVISIONS IN SECTION 20 OF E.O. 11491, AS AMENDED, AND SECTION
7131(A) THEREBY "SUPERSEDES" THE "POLICIES, REGULATIONS, AND PROCEDURES
ESTABLISHED UNDER" THE EXECUTIVE ORDER.