09:0779(98)CA - Treasury, Customs Service, Region IX, Chicago, IL and NTEU -- 1982 FLRAdec CA



[ v09 p779 ]
09:0779(98)CA
The decision of the Authority follows:


 9 FLRA No. 98
 
 U.S. DEPARTMENT OF THE TREASURY
 U.S. CUSTOMS SERVICE, REGION IX
 CHICAGO, ILLINOIS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case Nos. 5-CA-1033
                                                      5-CA-1183
 
                            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.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THESE CONSOLIDATED CASES,
 INCLUDING THE PARTIES' STIPULATION OF FACTS, THE AUTHORITY FINDS:
 
    THE COMPLAINT IN CASE NO. 5-CA-1033 ALLEGES THAT THE RESPONDENT
 VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) BY ITS REFUSAL TO
 REIMBURSE EMPLOYEES JOHN SCHMAL, JAMES SWADER AND ARMAND KELZENBERG FOR
 TRAVEL AND PER DIEM EXPENSES INCURRED IN CONNECTION WITH REPRESENTING
 THE UNION IN NEGOTIATIONS OF A LOCAL AGREEMENT TO SUPPLEMENT A MASTER
 AGREEMENT CONDUCTED ON OCTOBER 14 AND 15 AND NOVEMBER 12, 13 AND 14,
 1980;  JAMES SWADER AND ARMAND KELZENBERG FOR TRAVEL AND PER DIEM
 EXPENSES INCURRED IN CONNECTION WITH REPRESENTING THE UNION IN IMPACT
 BARGAINING CONDUCTED ON FEBRUARY 9, 10, 11 AND 12, 1981 AND FEBRUARY 25
 AND 26, 1981;  AND JAMES BYRON FOR TRAVEL AND PER DIEM EXPENSES INCURRED
 IN CONNECTION WITH REPRESENTING THE UNION IN NEGOTIATIONS OF A LOCAL
 AGREEMENT TO SUPPLEMENT A MASTER AGREEMENT CONDUCTED ON NOVEMBER 12, 13
 AND 14, 1980.  THE COMPLAINT IN CASE NO.  5-CA-1183 ALLEGES THAT THE
 RESPONDENT VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE BY
 ITS REFUSAL TO REIMBURSE EMPLOYEE JAMES SWADER FOR TRAVEL AND PER DIEM
 EXPENSES INCURRED IN CONNECTION WITH REPRESENTING THE UNION IN
 NEGOTIATIONS OF A LOCAL AGREEMENT TO SUPPLEMENT A MASTER AGREEMENT
 CONDUCTED ON DECEMBER 8, 9 AND 10, 1980.  SPECIFICALLY, THE RESPONDENT'S
 CONDUCT, AS NOTED ABOVE, IS ALLEGED TO CONSTITUTE A FAILURE TO COMPLY
 WITH SECTION 7131(A) OF THE STATUTE IN VIOLATION OF SECTION 7116(A)(1)
 AND (8) AND TO CONSTITUTE A PATENT BREACH OF THE PARTIES' NEGOTIATED
 AGREEMENT IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.
 
    SUBSEQUENT TO THE ISSUANCE OF THE COMPLAINTS HEREIN, THE AUTHORITY
 ISSUED INTERPRETATION AND GUIDANCE, 7 FLRA NO. 105(1982), IN WHICH THE
 AUTHORITY HELD THAT SECTION 7131(A) OF THE STATUTE /1/ WHICH AUTHORIZES
 OFFICIAL TIME TO EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN
 THE NEGOTIATION OF A COLLECTIVE BARGAINING AN EXCLUSIVE REPRESENTATIVE
 IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT DOES NOT APPLY
 TO THE NEGOTIATION OF A LOCAL AGREEMENT WHICH SUPPLEMENTS A NATIONAL OR
 CONTROLLING (MASTER) AGREEMENT.  BASED ON THAT INTERPRETATION AND
 GUIDANCE, THE RESPONDENT FILED A MOTION TO DISMISS IN ITS ENTIRETY THE
 COMPLAINT IN CASE NO. 5-CA-1183 (THE ALLEGATIONS OF WHICH RELATE SOLELY
 TO SUPPLEMENTAL BARGAINING) AND THOSE ALLEGATIONS OF THE COMPLAINT IN
 CASE NO. 5-CA-1033 WHICH RELATE SOLELY TO SUPPLEMENT BARGAINING.  THE
 GENERAL COUNSEL SPECIFICALLY DOES NOT OPPOSE THE RESPONDENT'S MOTION.
 THE AUTHORITY HEREBY GRANTS THE RESPONDENT'S MOTION TO DISMISS THE
 COMPLAINT IN CASE NO. 5-CA-1183 AND THOSE ALLEGATIONS OF THE COMPLAINT
 IN CASE NO. 5-CA-1033 WHICH RELATE SOLELY TO SUPPLEMENTAL BARGAINING FOR
 THE REASONS MORE FULLY STATED IN INTERPRETATION AND GUIDANCE.  /2/
 
    WITH RESPECT TO THOSE ALLEGATIONS OF THE COMPLAINT IN CASE NO.
 5-CA-1033 WHICH ARE RELATED SOLELY TO IMPACT BARGAINING, THE FACTS AND
 POSITIONS OF THE PARTIES ARE SUBSTANTIALLY IDENTICAL TO THOSE INVOLVED
 IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT
 OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40(1980),
 ENFORCED SUB NOM.  BUREAU OF ALCOHOL, TOBACCO AND FIREARMS V. FEDERAL
 LABOR RELATIONS AUTHORITY, 672 F.2D 732 (9TH CIR.  1982).  THUS, FOR THE
 REASONS FULLY STATED IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, THE
 AUTHORITY FINDS THAT THE RESPONDENT HEREIN HAS FAILED AND REFUSED TO
 COMPLY WITH SECTION 7131(A) OF THE STATUTE AND THEREFORE HAS VIOLATED
 SECTION 7116(A)(1) AND (8) OF THE STATUTE.  /3/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, REGION IX,
 CHICAGO, ILLINOIS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO PROVIDE TRAVEL AND PER DIEM EXPENSES TO
 EMPLOYEES JAMES SWADER AND ARMAND KELZENBERG INCURRED IN CONNECTION
 WITH
 THEIR PARTICIPATION ON OFFICIAL TIME, PURSUANT TO SECTION 7131(A) OF THE
 STATUTE, AS DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY
 EMPLOYEES UNION IN IMPACT BARGAINING.
 
    (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) REIMBURSE EMPLOYEES JAMES SWADER AND ARMAND KELZENBERG, BASED
 UPON THEIR PREVIOUSLY SUBMITTED VOUCHERS, FOR TRAVEL AND PER DIEM
 EXPENSES INCURRED IN CONNECTION WITH THEIR PARTICIPATION, PURSUANT TO
 SECTION 7131(A) OF THE STATUTE, AS DESIGNATED REPRESENTATIVES OF THE
 NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE
 REPRESENTATIVE, IN IMPACT BARGAINING.
 
    (B) POST AT ITS CHICAGO REGIONAL FACILITIES COPIES OF THE ATTACHED
 NOTICE ON FORMS TO BE FURNISHED BY THE AUTHORITY.  UPON RECEIPT OF SUCH
 FORMS, THEY SHALL BE SIGNED BY THE REGIONAL COMMISSIONER AND SHALL BE
 POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
 PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  THE COMMISSIONER SHALL TAKE
 REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
 OR COVERED BY ANY OTHER MATERIAL.
 
    (C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION V, FEDERAL LABOR
 RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    IT IS FURTHER ORDERED THAT THE COMPLAINT IN CASE NO. 5 CA-1183 AND
 THOSE ALLEGATIONS OF THE COMPLAINT IN CASE NO. 5-CA-1033 RELATED TO
 SUPPLEMENTAL BARGAINING AND PATENT BREACH, BE, AND THEY HEREBY ARE,
 DISMISSED IN THEIR ENTIRETY.
 
    ISSUED, WASHINGTON, D.C., AUGUST 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                        FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
            CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
 
                    HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT FAIL OR REFUSE TO PROVIDE TRAVEL AND PER DIEM EXPENSES TO
 EMPLOYEES JAMES SWADER AND ARMAND KELZENBERG INCURRED IN CONNECTION
 WITH
 THEIR PARTICIPATION ON OFFICIAL TIME, PURSUANT TO SECTION 7131(A) OF THE
 STATUTE, AS DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY
 EMPLOYEES UNION IN IMPACT BARGAINING.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    WE WILL REIMBURSE EMPLOYEES JAMES SWADER AND ARMAND KELZENBERG, BASED
 UPON THEIR PREVIOUSLY SUBMITTED VOUCHERS, FOR TRAVEL AND PER DIEM
 EXPENSES INCURRED IN CONNECTION WITH THEIR PARTICIPATION, PURSUANT TO
 SECTION 7131(A) OF THE STATUTE, AS DESIGNATED REPRESENTATIVES OF THE
 NATIONAL TREASURY EMPLOYEES UNION, OUR EMPLOYEES' EXCLUSIVE
 REPRESENTATIVE, IN IMPACT BARGAINING.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR, REGION V, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS
 SUITE 1359-A, 175 W. JACKSON BLVD., CHICAGO, ILLINOIS 60604, AND WHOSE
 TELEPHONE NUMBER IS:  (312) 353-0139.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7131(A) STATES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 7131.  OFFICIAL TIME
 
    (A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
 NEGOTIATION OF A
 
    COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER 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.
 
    /2/ IN GRANTING THE RESPONDENT'S MOTION, THE AUTHORITY NOTES WITH
 REGARD TO THE GENERAL COUNSEL'S PATENT BREACH ARGUMENT IN BOTH CASES
 THAT AS THE CONTRACT CLAUSES ALLEGEDLY BREACHED WERE TIMELY DISAPPROVED
 WITHIN THE MEANING OF SECTION 7114(C) OF THE STATUTE BY "THE HEAD OF THE
 AGENCY," THE CLAUSES DID NOT GO INT