Florida National Guard (Respondent) and National Association of Government Employees, Local R5-91 (Charging Party) 

 5 FLRA No. 49
 
 FLORIDA NATIONAL GUARD
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R5-91
 Charging Party
 
                                            Case No. 4-CA-300
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO A STIPULATED RECORD
 FORWARDED BY AN ADMINISTRATIVE LAW JUDGE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY FOR DECISION IN ACCORDANCE WITH A REQUEST FROM THE REGIONAL
 ATTORNEY, AGENT FOR THE REGIONAL DIRECTOR, PURSUANT TO THE AUTHORITY
 GRANTED THE REGIONAL DIRECTOR IN SECTION 2429.1(A) OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2429.1(A)).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS SUBMITTED BY THE
 PARTIES, THE AUTHORITY FINDS:
 
    THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-91, IS THE
 EXCLUSIVE REPRESENTATIVE OF A UNIT OF THE RESPONDENT'S EMPLOYEES.  THE
 TERMS OF THE MOST RECENT THREE-YEAR CONTRACT, WHICH EXPIRED JANUARY 28,
 1978, CONTINUE IN EFFECT PENDING AN AGREEMENT ON A NEW CONTRACT.  THE
 EXPIRED CONTRACT CONTAINS A MEMORANDUM OF UNDERSTANDING THAT LIMITS
 OFFICIAL TIME FOR CONTRACT NEGOTIATIONS, INCLUDING TRAVEL TIME, TO 40
 HOURS PER YEAR PER EMPLOYEE REPRESENTATIVE.
 
    THE UNION REQUESTED ASSISTANCE FROM THE FEDERAL SERVICE IMPASSES
 PANEL (FSIP) AND FOLLOWING AN UNSUCCESSFUL ATTEMPT TO REACH AN
 AGREEMENT, A NOTICE OF HEARING WAS ISSUED SCHEDULING A FACT FINDING
 HEARING FOR AUGUST 23, 1979.  A PREHEARING CONFERENCE WAS HELD ON AUGUST
 22 FROM 9:00 A.M. TO 6:15 P.M. AND THE HEARING WAS HELD ON AUGUST 23
 FROM 9:00 A.M. TO 5:30 P.M.  AT ST. AUGUSTINE, FLORIDA.
 
    THE UNION WAS REPRESENTED BY, AMONG OTHERS, RONALD L. MEIER,
 PRESIDENT OF THE LOCAL UNION AND EMPLOYEE OF RESPONDENT.  HE ATTENDED
 BOTH DAYS.  MEIER DROVE FROM JACKSONVILLE TO ST. AUGUSTINE EACH DAY, A
 DISTANCE OF 58 MILES.  TRAVEL TIME WAS ABOUT 1 1/2 HOURS, EACH WAY.  HIS
 REGULAR WORK DAY WAS FROM 6:30 A.M. TO 3:15 P.M.
 
    ON JUNE 14, 1979, THE RESPONDENT HAD ISSUED AN INTRA-OFFICE
 MEMORANDUM STATING THAT UNDER THE CIVIL SERVICE REFORM ACT, UNLIMITED
 NEGOTIATION ON THE CLOCK, BUT NOT TRAVEL OR PREPARATION TIME, WOULD BE
 ALLOWED FOR UNION NEGOTIATORS.  ABOUT A MONTH BEFORE THE FSIP HEARING,
 AT A FEDERAL MEDIATION AND CONCILIATION SERVICE (FMCS) MEDIATION
 SESSION, MEIER HAD ASKED THE RESPONDENT ABOUT OFFICIAL TIME FOR TRAVEL.
 COLONEL MCCORMICK, THE RESPONDENT'S CHIEF NEGOTIATOR AND TECHNICIAN
 PERSONNEL OFFICER, INFORMED MEIER THAT TRAVEL TIME WOULD BE DENIED, AND
 MEIER REPLIED THAT HE WOULD FILE AN UNFAIR LABOR PRACTICE CHARGE.
 
    A FEW DAYS AFTER THE FSIP HEARING, MEIER WAS INFORMED BY HIS
 IMMEDIATE SUPERVISOR THAT HE WOULD BE GIVEN EIGHT HOURS OF
 ADMINISTRATIVE LEAVE FOR EACH DAY HE ATTENDED THE HEARING, NOT THE 12
 AND 13 HOURS CLAIMED.  HOWEVER, THE RESPONDENT ISSUED A "CORRECTIVE
 MEMO" GIVING MEIER ONLY SIX HOURS ADMINISTRATIVE LEAVE (DETERMINED BY
 THE RESPONDENT TO BE THE ACTUAL NEGOTIATING TIME CORRESPONDING TO
 MEIER'S DUTY TIME) AND CHARGING HIM TWO HOURS ANNUAL LEAVE FOR EACH OF
 THE TWO DAYS OF HEARINGS.  (THE ADMINISTRATIVE LEAVE WAS GRANTED DESPITE
 THE ACKNOWLEDGED FACT THAT MEIER HAD EXCEEDED THE 40-HOUR PER ANNUM
 LIMITATION OF THE EXPIRED CONTRACT.) MEIER HAD ALSO REQUESTED MILEAGE
 AND PER DIEM EXPENSES FOR EACH DAY, WHICH THE RESPONDENT REFUSED.
 
    AN UNFAIR LABOR PRACTICE CHARGE WAS FILED BY THE UNION ALLEGING THAT
 THE RESPONDENT VIOLATED SECTIONS 7116(A)(1), (6) AND (8) OF THE STATUTE
 BY FAILING AND REFUSING TO AUTHORIZE ADEQUATE OFFICIAL TIME AND TRAVEL
 AND PER DIEM EXPENSES WITHIN THE PROVISIONS OF SECTION 7131(A) FOR THE
 UNION REPRESENTATIVE, PRESIDENT RONALD MEIER, REGARDING HIS ATTENDANCE
 AT FSIP HEARINGS ON AUGUST 11 AND 23, 1979.  UPON AN INVESTIGATION, THE
 GENERAL COUNSEL ISSUED A COMPLAINT ALLEGING THAT THE RESPONDENT HAD
 FAILED AND REFUSED TO GIVE MEIER ADEQUATE OFFICIAL TIME AND TRAVEL AND
 PER DIEM EXPENSES.  IN THIS REGARD, THE GENERAL COUNSEL ARGUED THAT
 MEIER WAS ENTITLED TO "TRAVEL TIME" TO THE LOCATION SITE OF THE HEARING
 BECAUSE THE TRAVEL TO THE FSIP PROCEEDING OCCURRED AT A TIME WHEN HE
 WOULD OTHERWISE HAVE BEEN IN A DUTY STATUS, AND THAT HE WAS ENTITLED TO
 MILEAGE FOR THE TRAVEL AND PER DIEM FOR BOTH DAYS OF ATTENDANCE.  IT IS
 CONTENDED BY THE GENERAL COUNSEL THAT THE REFUSAL TO PROVIDE SUCH TRAVEL
 TIME, MILEAGE AND PER DIEM CONSTITUTES A VIOLATION OF SECTION
 7116(A)(1), (6) AND (8).  AS NOTED ABOVE, THE MATTER IS BEFORE THE
 AUTHORITY PURSUANT TO A STIPULATION OF FACTS.
 
    SECTION 7131(A), INTER ALIA, REQUIRES THAT:
 
    ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
 NEGOTIATION OF A COLLECTIVE
 
    BARGAINING AGREEMENT . . . 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 RESPONDENT GRANTED OFFICIAL TIME FOR MEIER FOR THE
 PORTION OF HIS DUTY STATUS WHEN HE WAS ATTENDING IMPASSE PROCEEDINGS.
 AT ISSUE HEREIN IS THAT PORTION OF MEIER'S DUTY STATUS TIME SPENT
 TRAVELING FROM HIS RESIDENCE TO THE SITE OF THE IMPASSE PROCEEDING, THAT
 IS, "TRAVEL TIME" RELATED TO OFFICIAL TIME ACTIVITIES UNDER SECTION
 7131(A).  IN THE AUTHORITY'S VIEW, WHEN IT IS REQUIRED THAT AN EMPLOYEE
 TRAVEL TO PARTICIPATE IN OFFICIAL TIME ACTIVITIES UNDER SECTION 7131(A),
 DURING THE TIME THE EMPLOYEE OTHERWISE WOULD BE IN A DUTY STATUS, SUCH
 TRAVEL TIME IS PART OF THE OFFICIAL TIME.  IN THIS REGARD, AS WAS
 CONCLUDED IN THE AUTHORITY'S INTERPRETATION AND GUIDANCE ON THE MEANING
 OF SECTION 7131(A), THE LEGISLATIVE HISTORY RELATIVE TO THAT SECTION
 DEMONSTRATES AN INTENT BY CONGRESS THAT EMPLOYEES SERVING AS UNION
 REPRESENTATIVES BE ACCORDED PREROGATIVES SIMILAR TO THOSE ACCORDED TO
 MANAGEMENT REPRESENTATIVES IN THE NEGOTIATION OF A COLLECTIVE BARGAINING
 AGREEMENT, INCLUDING IMPASSE PROCEEDING.  /1/
 
    TURNING TO THE FACTS OF THE INSTANT CASE, MEIER WOULD HAVE BEEN IN
 HIS REGULAR DUTY STATUS FROM 6:30 A.M. TO 3:15 P.M. ON AUGUST 22 AND 23
 BUT FOR HIS ATTENDANCE THOSE DAYS AT AN IMPASSE PROCEEDING IN ANOTHER
 TOWN.  DURING THE PERIOD OF HIS REGULAR DUTY STATUS, I.E., 6:30 A.M. TO
 3:15 P.M., THE RECORD SHOWS THAT EACH DAY MEIER SPENT 1 1/2 HOURS
 TRAVELING TO THE HEARING AND 6 1/4 HOURS ACTUALLY AT THE HEARING.
 ACCORDINGLY, THE AUTHORITY FINDS THAT MEIER SPENT 7 3/4 HOURS OF
 OFFICIAL TIME FOR EACH OF THE TWO DAYS.  THE REFUSAL BY THE RESPONDENT
 TO PROVIDE OFFICIAL TIME IN THIS AMOUNT TO MEIER CONSTITUTES A FAILURE
 TO COMPLY WITH THE PROVISIONS OF SECTION 7131(A) IN VIOLATION OF SECTION
 7116(A)(8);  A FAILURE TO COOPERATE IN IMPASSE PROCEDURES IN VIOLATION
 OF SECTION 7116(A)(6);  AND INTERFERENCE WITH, RESTRAINT, AND COERCION
 OF AN EMPLOYEE IN THE EXERCISE OF RIGHTS UNDER THE STATUTE IN VIOLATION
 OF SECTION 7116(A)(1).
 
    WITH RESPECT TO TRAVEL AND PER DIEM EXPENSES, IN ITS INTERPRETATION
 AND GUIDANCE THE AUTHORITY NOTED THAT EMPLOYEES, WHILE NEGOTIATING A
 COLLECTIVE BARGAINING AGREEMENT AS UNION REPRESENTATIVES, ARE CLEARLY
 ENGAGED ON "OFFICIAL BUSINESS FOR THE GOVERNMENT," AND CONCLUDED THAT
 SUCH EMPLOYEES ARE "ENTITLED TO PAYMENTS FROM AGENCIES FOR THEIR DUTY
 TIME AND TRAVEL AND PER DIEM EXPENSES." /2/ MEIER TRAVELED TO IMPASSE
 PROCEEDINGS, WHICH ARE SPECIFICALLY PROVIDED FOR IN SECTION 7131(A)
 PROVISIONS, AND THEREFORE HE WAS ENTITLED TO APPROPRIATE TRAVEL AND PER
 DIEM EXPENSES, AS MAY BE PROVIDED UNDER GOVERNING LAWS AND REGULATIONS.
 THE FAILURE TO PROVIDE SUCH, AS WITH THE FAILURE TO PROVIDE OFFICIAL
 TIME, CONSTITUTES A VIOLATION OF SECTION 7116(A)(1), (6) AND (8).  /3/
 THE RESPONDENT CONTESTS THE JURISDICTION OF THE AUTHORITY TO REQUIRE,
 THROUGH AN UNFAIR LABOR PRACTICE PROCEEDING, PAYMENT OF MONETARY
 ALLOWANCES BY AN AGENCY.  HOWEVER, THE AUTHORITY IS EMPOWERED BY SECTION
 7105(A)(2)(G) TO RESOLVE COMPLAINTS OF UNFAIR LABOR PRACTICES, BY
 SECTION 7105(A)(2)(I) TO TAKE SUCH OTHER ACTIONS AS ARE NECESSARY AND
 APPROPRIATE TO EFFECTIVELY ADMINISTER THE PROVISIONS OF THE STATUTE, AND
 BY SECTION 7118(A)(7)(D) TO TAKE SUCH ACTION AS WILL CARRY OUT THE
 PURPOSES OF THE STATUTE.  WHERE, AS HERE, AN AGENCY IS FOUND TO HAVE
 FAILED TO COMPLY WITH REQUIREMENTS OF THE STATUTE, THERE IS NO BASIS FOR
 THE CONTENTION THAT THERE IS ANY LIMIT TO THE JURISDICTION OF THE
 AUTHORITY BY VIRTUE OF THE FACT THAT THE FAILURE AT ISSUE INVOLVES A
 PAYMENT OF MONETARY ALLOWANCES.  MOREOVER, PURSUANT TO SECTION
 7105(G)(3), THE AUTHORITY, IN ORDER TO CARRY OUT ITS FUNCTIONS UNDER THE
 STATUTE:
 
    MAY REQUIRE AN AGENCY OR A LABOR ORGANIZATION TO CEASE AND DESIST
 FROM VIOLATIONS OF THIS
 
    CHAPTER AND REQUIRE IT TO TAKE ANY REMEDIAL ACTION IT CONSIDERS
 APPROPRIATE TO CARRY OUT THE
 
    POLICIES OF THIS CHAPTER.
 
    AS TO THE RESPONDENT'S ARGUMENT THAT ENTITLEMENT TO PAY AND
 ALLOWANCES IS GOVERNED BY STATUTES, LAWS AND REGULATIONS, AND THE
 ARGUMENT THAT DISPUTES OVER ENTITLEMENT MUST BE EXHAUSTED THROUGH
 MILITARY PAY PROCESSES BEFORE AN UNFAIR LABOR PRACTICE CHARGE CAN BE
 CONSIDERED, THE ISSUES BEFORE THE AUTHORITY CONCERN THE NONCOMPLIANCE
 WITH REQUIREMENTS OF THE STATUTE.  AS STATED ABOVE, SUCH ISSUES ARE
 SPECIFICALLY ASSIGNED TO THE AUTHORITY FOR DISPOSITION, NOTWITHSTANDING
 THAT THEY MAY INCLUDE ISSUES OF ENTITLEMENT TO PAY AND ALLOWANCES.
 
    BEYOND THE ALLEGATIONS CONCERNING LACK OF JURISDICTION, THE
 RESPONDENT CONTENDS THAT SUCH MONETARY ISSUES AS ARE PRESENT HEREIN ARE
 NONNEGOTIABLE "BUDGET" MATTERS UNDER SECTION 7106(A)(1).  /4/ HOWEVER,
 AT ISSUE HERE IS NOT WHETHER MONETARY ISSUES ARE WITHIN THE SCOPE OF
 BARGAINING UNDER THE STATUTE, BUT WHETHER REQUIREMENTS OF SECTION
 7131(A) HAVE BEEN MET.  IN THIS CONNECTION, AS STATED ABOVE, THE
 RESPONDENT HAS FAILED TO COMPLY WITH THESE REQUIREMENTS.
 
    FINALLY, RESPONDENT RAISES BY WAY OF DEFENSE THE ARGUMENT THAT THE
 40-HOUR OFFICIAL TIME RESTRICTION FOR NEGOTIATIONS UNDER THE EXISTING
 CONTRACT CONTROLS HEREIN UNDER THE SAVINGS PROVISION OF SECTION 7135(A)
 (1), /5/ AND IS BINDING UNTIL A MUTUALLY AGREEABLE CONTRACT IS
 CONCLUDED.  THE AUTHORITY ALSO ADDRESSED THIS ISSUE IN ITS
 INTERPRETATION AND GUIDANCE, SUPRA, AT PAGE 7, WHEREIN IT WAS NOTED THAT
 NOTHING IN THE STATUTE WOULD PRECLUDE THE PARTIES FROM CONTINUING THE
 TERMS OF ANY SUCH AGREEMENT IN EXISTENCE ON JANUARY 11, 1979, THE
 EFFECTIVE DATE OF THE STATUTE.  HOWEVER, IT WAS FURTHER STATED,
 
    (W)HERE 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.  IN AGREEMENT WITH THE GENERAL COUNSEL, THE AUTHORITY
 FINDS THAT THE UNION INDICATED ITS OBJECTION TO THE CONTINUATION OF THE
 PROVISION IN THE EXISTING AGREEMENT WHEN MEIER INFORMED AGENCY OFFICIALS
 THAT AN UNFAIR LABOR PRACTICE CHARGE WOULD BE FILED AGAINST THE
 RESPONDENT CONTESTING THE CONTINUED APPLICATION OF THE CONTRACTUAL
 LIMITATION.  THE AUTHORITY FINDS ALSO THAT THE OFFICIAL TIME PROVISION
 OF THE NEGOTIATED AGREEMENT IS MORE RESTRICTIVE THAN THE PROVISION OF
 SECTION 7131(A).  THEREFORE, IN THE CIRCUMSTANCES OF THIS CASE, AND
 CONSISTENT WITH THE INTERPRETATION AND GUIDANCE ON THIS SUBJECT, THE
 PROVISIONS OF SECTION 7131(A) OF THE STATUTE, RATHER THAN THE PROVISIONS
 OF THE NEGOTIATED AGREEMENT, APPLY.
 
    ACCORDINGLY, IN VIEW OF THE FOREGOING, THE AUTHORITY CONCLUDES THAT
 THE RESPONDENT BY ITS FAILURE AND REFUSAL TO PROVIDE UNION
 REPRESENTATIVE RONALD MEIER WITH APPROPRIATE OFFICIAL TIME AND TRAVEL
 AND PER DIEM EXPENSES WHILE ATTENDING THE FSIP HEARINGS ON AUGUST 22 AND
 23, 1979, FAILED AND REFUSED TO COOPERATE IN IMPASSE PROCEDURES AS
 REQUIRED BY SECTION 7131 OF THE STATUTE IN VIOLATION OF SECTIONS
 7116(A)(1), (6) 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 FLORIDA NATIONAL GUARD, JACKSONVILLE,
 FLORIDA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO PROVIDE RONALD MEIER, OR ANY AGENCY
 EMPLOYEE, OFFICIAL TIME AND APPROPRIATE TRAVEL AND PER DIEM EXPENSES FOR
 TIME ENGAGED IN REPRESENTING THE NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R5-91, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING
 UNION-AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT OR
 ATTENDANCE AT AN IMPASSE PROCEEDING, EQUAL TO WHAT AN EMPLOYEE ENGAGED
 IN OFFICIAL AGENCY BUSINESS WOULD BE ENTITLED.