09:0629(70)NG - NTEU and Treasury, Customs Service -- 1982 FLRAdec NG

 9 FLRA No. 70
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY,
 U.S. CUSTOMS SERVICE
 Agency
 
                                            Case No. O-NG-293
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
 RAISES ISSUES CONCERNING THE NEGOTIABILITY OF TWO UNION PROPOSALS.  UPON
 CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
 CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
                             UNION PROPOSAL 1
 
    THE EMPLOYER AGREES TO PAY THE TRAVEL EXPENSES INCURRED BY EMPLOYEES
 WHILE USING OFFICIAL
 
    TIME AVAILABLE UNDER THE TERMS OF THIS AGREEMENT.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS, AS ALLEGED
 BY THE AGENCY, INCONSISTENT WITH FEDERAL LAW.
 
                                  OPINION
 
 CONCLUSION AND ORDER:  UNION PROPOSAL 1 IS NOT INCONSISTENT WITH FEDERAL
 LAW.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES
 AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE AGENCY
 SHALL PASS UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
 BARGAIN CONCERNING UNION PROPOSAL 1.  /1/ REASONS:  IN INTERPRETATION
 AND GUIDANCE, 2 FLRA 265 (1979), THE AUTHORITY DETERMINED THAT EMPLOYEES
 ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE /2/ ARE ENTITLED
 TO PAYMENT FOR THEIR DUTY TIME AND TRAVEL AND PER DIEM EXPENSES.  IN
 THIS REGARD, THE AUTHORITY, NOTING THAT IT IS WELL ESTABLISHED THAT SUCH
 EXPENSES ARE AUTHORIZED WHEN AN EMPLOYEE IS ENGAGED ON "OFFICIAL
 BUSINESS FOR THE GOVERNMENT," FOUND THAT AN EMPLOYEE ON OFFICIAL TIME
 UNDER SECTION 7131(A) CLEARLY IS ENGAGED IN SUCH OFFICIAL BUSINESS.  SEE
 ALSO BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT
 OF THE TREASURY, SAN FRANCISCO, CALIFORNIA AND NATIONAL TREASURY
 EMPLOYEES UNION, CHAPTER 81, 4 FLRA NO. 40 (1980), ENFORCED SUB NOM.
 BUREAU OF ALCOHOL, TOBACCO AND FIREARMS V. FEDERAL LABOR RELATIONS
 AUTHORITY, . . . F.2D . . . (9TH CIR. 1982).  LIKEWISE, IN SECTION
 2429.13 OF ITS RULES AND REGULATIONS, THE AUTHORITY INTERPRETED SECTION
 7131(C) OF THE STATUTE /3/ AS ENTITLING AN EMPLOYEE PARTICIPATING ON
 OFFICIAL TIME IN ANY PROCEEDING BEFORE THE AUTHORITY TO TRAVEL AND PER
 DIEM EXPENSES.  IN EACH OF THESE INSTANCES, THE CRITICAL FACTOR
 AUTHORIZING PAYMENT OF TRAVEL EXPENSES UNDER 5 U.S.C.  SEC. 5701 ET SEQ.
 HAS BEEN THE REQUIREMENT THAT AN EMPLOYEE BE AUTHORIZED OFFICIAL TIME
 UNDER SECTION 7131 OF THE STATUTE.
 
    WHILE SECTION 7131(D) OF THE STATUTE, /4/ AS RELEVANT HEREIN, DOES
 NOT CREATE AN ENTITLEMENT TO OFFICIAL TIME, IT DOES PROVIDE THAT
 OFFICIAL TIME SHALL BE GRANTED IN ANY AMOUNT THE AGENCY AND THE
 EXCLUSIVE REPRESENTATIVE INVOLVED AGREE TO BE REASONABLE, NECESSARY, AND
 IN THE PUBLIC INTEREST.  THUS, WHERE, UNDER THE PROVISIONS OF SECTION
 7131(D) OF THE STATUTE, IT IS AGREED THAT AN EMPLOYEE IS TO BE GRANTED
 OFFICIAL TIME, CONSISTENT WITH THE AUTHORITY'S PREVIOUSLY CITED
 POLICIES, TRAVEL DURING SUCH OFFICIAL TIME WOULD PERFORCE ENTITLE AN
 EMPLOYEE TO PAYMENTS FROM THE AGENCY FOR TRAVEL AND PER DIEM EXPENSES.
 
    THE DISPUTED PROPOSAL HERE WOULD REQUIRE THE AGENCY TO PAY TRAVEL
 EXPENSES FOR EMPLOYEES WHO TRAVEL ON OFFICIAL TIME PURSUANT TO SECTION
 7131(D).  AS SUCH, IT WOULD MERELY INCORPORATE INTO THE PARTIES'
 AGREEMENT THE LEGAL ENTITLEMENT TO SUCH EXPENSES.  SINCE THE PROPOSAL IS
 THUS NOT INCONSISTENT WITH SECTION 7131 OR ANY OTHER PROVISION OF LAW,
 THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO
 BARGAIN CANNOT BE SUSTAINED.
 
                             UNION PROPOSAL 2
 
    THE EMPLOYER SHALL STAY THE EFFECT OF ANY DECISION TO TAKE
 (DISCIPLINARY ACTION, ADVERSE
 
    ACTION, OR ACTION BASED UPON UNACCEPTABLE PERFORMANCE) /5/ AGAINST
 ANY EMPLOYEE PENDING THE
 
    OUTCOME OF ANY ADMINISTRATIVE APPEAL THROUGH THE GRIEVANCE AND
 ARBITRATION PROCEDURE, OR ANY
 
    APPEAL TO THE M.S.P.B., AS APPROPRIATE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER UNION PROPOSAL 2 IS, AS ALLEGED BY
 THE AGENCY, INCONSISTENT WITH SECTION 7106(A)(2)(A) OF THE STATUTE.  /6/
 
                                  OPINION
 
 CONCLUSION AND ORDER:  UNION PROPOSAL 2 IS INCONSISTENT WITH SECTION
 7106(A)(2)(A) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10
 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS
 ORDERED THAT THE PETITION FOR REVIEW AS TO UNION PROPOSAL 2 BE, AND IT
 HEREBY IS, DISMISSED.  REASONS:  IN AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE,
 DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA 152 (1979), ENFORCED
 SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659
 F.2D 1140 (D.C. CIR. 1981), CERT. DENIED SUB NOM. AFGE V. FLRA, 50
 U.S.L.W. 3669 (FEB. 23, 1982), THE AUTHORITY HELD THAT A PROPOSAL TO
 STAY A DISCIPLINARY SUSPENSION OR REMOVAL PENDING THE EXHAUSTION OF THE
 NEGOTIATED GRIEVANCE AND ARBITRATION PROCESS WAS WITHIN THE DUTY TO
 BARGAIN AS A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE
 STATUTE BECAUSE IT WOULD NOT PREVENT THE AGENCY FROM ACTING AT ALL WITH
 RESPECT TO ITS MANAGEMENT RIGHTS.
 
    THE PROPOSAL IN THIS CASE, HOWEVER, WOULD STAY DISCIPLINARY ACTIONS,
 ADVERSE ACTIONS, OR ACTIONS BASED ON UNACCEPTABLE PERFORMANCE PENDING AN
 APPEAL THROUGH EITHER THE GRIEVANCE PROCEDURE OR THROUGH THE MERIT
 SYSTEMS PROTECTION BOARD (MSPB).  MSPB HAS TWO FORMS OF JURISDICTION--
 ORIGINAL (I.E., CASES BROUGHT DIRECTLY BEFORE THE BOARD) AND APPELLATE
 (I.E., APPEALS FROM AGENCY ACTIONS).  BASED UPON THE LANGUAGE OF MSPB'S
 REGULATIONS, MSPB WILL NOT ENTERTAIN AN APPEAL THROUGH ITS APPELLATE
 JURISDICT