United States Customs Service (Respondent) and National Treasury Employees Union (Charging Party) and Office of Personnel Management (Intervenor)



[ v07 p453 ]
07:0453(68)CA
The decision of the Authority follows:


 7 FLRA No. 68
 
 UNITED STATES CUSTOMS SERVICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT
 Intervenor
 
                                            Case Nos. 3-CA-261
                                                      3-CA-1230
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
 SECTION 2429.1 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2429.1(A)).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THESE CASES, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND BRIEFS
 SUBMITTED BY THE RESPONDENT, THE GENERAL COUNSEL AND THE INTERVENOR, THE
 AUTHORITY FINDS:
 
    THE COMPLAINTS HEREIN ALLEGE THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE) ON JANUARY 11, 1979, AND CONTINUING
 THEREAFTER, BY REFUSING TO REIMBURSE EMPLOYEES SERVING AS UNION
 NEGOTIATORS FOR TRAVEL AND PER DIEM EXPENSES INCURRED ON OFFICIAL TIME
 IN REGARD TO COLLECTIVE BARGAINING NEGOTIATIONS ENGAGED IN BY THE
 PARTIES OVER A NATIONWIDE MASTER AGREEMENT.  /1/
 
    THE RESPONDENT ADMITS IT HAS REFUSED TO PAY TRAVEL AND PER DIEM
 EXPENSES TO EMPLOYEES SERVING AS UNION NEGOTIATORS, IN VIOLATION OF
 ESTABLISHED PRECEDENT.  /2/ HOWEVER, THE RESPONDENT URGES THAT SUCH
 PRECEDENT BE REVERSED.  THE RESPONDENT'S POSITION IS THAT THERE IS NO
 BASIS IN THE STATUTE, ITS LEGISLATIVE HISTORY, OR IN PRECEDENT
 ESTABLISHED UNDER EXECUTIVE ORDERS 10988 AND 11491 TO SUPPORT A DECISION
 THAT IT MUST PAY TRAVEL AND PER DIEM EXPENSES.  THE RESPONDENT ARGUES
 THAT TO PAY SUCH MONIES WOULD BE IN VIOLATION OF LAW AND OF POLICY
 LIMITATIONS ON ITS APPROPRIATION.  /3/ THE INTERVENOR ESSENTIALLY ARGUES
 IN SUPPORT OF THE RESPONDENT'S POSITION THAT THE AUTHORITY'S
 INTERPRETATION OF THE STATUTE IN INTERPRETATION AND GUIDANCE, SUPRA, WAS
 INCORRECT AND SHOULD BE REVERSED.
 
    THE PARTIES' STIPULATION REVEALS THAT THEY HAVE BEEN NEGOTIATING A
 NATIONWIDE MASTER AGREEMENT SINCE NOVEMBER OF 1978.  SINCE ON OR ABOUT
 JANUARY 11, 1979, THE EMPLOYEES OF THE RESPONDENT ACTING AS MEMBERS OF
 THE UNION NEGOTIATING TEAM HAVE BEEN GRANTED OFFICIAL TIME DURING THE
 TIME THEY WERE ENGAGED IN NEGOTIATING THE NATIONWIDE AGREEMENT.
 HOWEVER, THEY HAVE BEEN REFUSED PAYMENT FOR TRAVEL AND PER DIEM EXPENSES
 INCURRED DURING THE TIME PERIOD IN WHICH THEY WERE GRANTED OFFICIAL
 TIME.
 
    THE AUTHORITY HAS CONSIDERED THE RESPONDENT'S ARGUMENTS, ESSENTIALLY
 BASED ON THE RESPONDENT'S READING OF THE LEGISLATIVE HISTORY, THAT
 ESTABLISHED PRECEDENT (NOTE 2, SUPRA) BE REVERSED.  HOWEVER, NO BASIS
 HAS BEEN ADVANCED TO DEMONSTRATE THAT THE ESTABLISHED PRECEDENT IS
 INCORRECT, NOR HAS THE RESPONDENT RAISED ARGUMENTS NOT PREVIOUSLY
 CONSIDERED.  THUS, THE AUTHORITY CONCLUDED IN THE INTERPRETATION AND
 GUIDANCE AND SUBSEQUENT CASES, BASED ON AN ANALYSIS OF THE STATUTE AND
 THE LEGISLATIVE HISTORY OF SECTION 7131, THAT ANY EMPLOYEE WHO IS ON
 OFFICIAL TIME UNDER SECTION 7131 WHILE REPRESENTING AN EXCLUSIVE
 REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT
 IS ENTITLED TO PAYMENT FROM AGENCIES FOR TRAVEL AND PER DIEM EXPENSES.
 THEREFORE, THE AUTHORITY FINDS THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (8) WHEN IT DENIED PAYMENT OF PER DIEM AND TRAVEL
 EXPENSES TO EMPLOYEES ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
 STATUTE WHILE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
 NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT.  /4/
 
                                   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 THE UNITED STATES CUSTOMS SERVICE SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
 TRAVEL AND PER DIEM EXPENSES INCURRED BY ITS EMPLOYEES AS A RESULT OF
 THEIR PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
 STATUTE AS DULY DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY
 EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED
 NATIONWIDE MASTER AGREEMENT NEGOTIATIONS.
 
    (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) PROVIDE PAYMENT TO ANY OF ITS EMPLOYEES WHO SUBMIT A PROPERLY
 DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS A RESULT
 OF PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE
 AS THE DULY DESIGNATED REPRESENTATIVE OF THE NATIONAL TREASURY EMPLOYEES
 UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN THE NEGOTIATION OF
 THE PARTIES' NATIONWIDE MASTER AGREEMENT.
 
    (B) POST AT ITS FACILITIES NATIONWIDE 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 COMMISSIONER OF
 CUSTOMS AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE
 DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS
 AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOM