[ v10 p202 ]
10:0202(40)CA
The decision of the Authority follows:
10 FLRA No. 40
IMMIGRATION AND NATURALIZATION SERVICE
Respondent
and
NATIONAL IMMIGRATION AND NATURALIZATION
SERVICE COUNCIL, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-2069
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(A) OF THE AUTHORITY'S RULES AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
STIPULATION OF FACTS AND THE CONTENTIONS OF THE PARTIES, THE AUTHORITY
FINDS:
THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
STATUTE) WHEN IT FAILED AND REFUSED TO COMPLY WITH SECTION 7131(A) OF
THE STATUTE BY ITS DENIAL IN 1981 OF THE UNION'S REQUEST FOR APPROPRIATE
TRAVEL AUTHORIZATIONS FOR ITS DESIGNATED REPRESENTATIVES IN SCHEDULED
NEGOTIATIONS. THE FOLLOWING UNION DESIGNEES WERE SPECIFICALLY DENIED
REIMBURSEMENT OF THEIR CLAIMED EXPENSES RELATED TO TRAVEL AND PER DIEM
FOR SUCH NEGOTIATIONS: J. BROZ, WARD LEIS AND NORMAN FISHER.
THE RESPONDENT TAKES THE POSITION THAT NO STATUTORY RIGHT TO PER DIEM
AND TRAVEL EXPENSES EXISTS UNDER SECTION 7131 OF THE STATUTE AND THAT
THE AUTHORITY'S INTERPRETATION AND GUIDANCE, 2 FLRA 265(1979) GRANTING
SUCH A RIGHT WAS ERRONEOUS.
ON THIS ISSUE, THE POSITIONS OF THE PARTIES ARE SUBSTANTIALLY SIMILAR
TO THOSE 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), WHEREIN
THE AUTHORITY HELD THAT EMPLOYEES WHO ARE ON OFFICIAL TIME UNDER SECTION
7131(A) OF THE STATUTE WHILE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN
THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT ARE ENTITLED TO
PAYMENT FROM AGENCIES FOR THEIR DUTY TIME AND TRAVEL AND PER DIEM
EXPENSES. /1/ BASED ON THE REASONS SET FORTH IN THAT DECISION, THE
AUTHORITY FINDS THAT UNDER SECTION 7131(A) OF THE STATUTE THE RESPONDENT
HAS THE OBLIGATION TO PAY THE EMPLOYEES IN QUESTION TRAVEL AND PER DIEM
EXPENSES.
ALTERNATIVELY, THE RESPONDENT TAKES THE POSITION THAT, ASSUMING SUCH
A RIGHT EXISTS, THE UNION IN THE COLLECTIVE BARGAINING AGREEMENT DATED
JUNE 13, 1979, WAIVED THE RIGHT TO PER DIEM AND TRAVEL EXPENSES FOR
EMPLOYEES DESIGNATED AS NEGOTIATING TEAM MEMBERS. IN TAKING THIS
POSITION, IT RELIES ON ARTICLE 7 OF THE AGREEMENT, PARTICULARLY
SUBSECTIONS A AND G, WHICH READ, IN PART, AS FOLLOWS:
ARTICLE 7-- USE OF OFFICIAL TIME
A. UPON REQUEST, AN APPROVAL IN ADVANCE, UNION OFFICIALS MAY USE
OFFICIAL TIME TO CONDUCT
REPRESENTATIONAL FUNCTIONS WHERE SUCH IS AUTHORIZED PURSUANT TO, AND
CONSISTENT WITH,
APPLICABLE STATUTES, REGULATIONS, AND EXECUTIVE ORDERS RELATING TO
COMPLAINTS, GRIEVANCES,
APPEALS, AND OTHER MATTERS INVOLVING DEALINGS WITH SERVICE OFFICIALS.
OFFICIAL TIME FOR
REPRESENTATIONAL FUNCTIONS PERFORMED BY UNION OFFICERS AND STEWARDS
WILL BE AUTHORIZED FOR:
. . . .
G. NATIONAL COUNCIL REPRESENTATIVES WHO ARE AUTHORIZED OFFICIAL TIME
TO ATTEND THE
FOLLOWING MEETINGS:
(1) NATIONAL AND REGIONAL SEMI-ANNUAL LABOR-MANAGEMENT MEETINGS;
(2) NATIONAL AND REGIONAL SAFETY AND HEALTH COMMITTEE MEETINGS; OR
(3) ANY OTHER MEETING SCHEDULED BY MANAGEMENT WITH THE INTENT OF
MEETING WITH THE UNION AS
GENERAL REPRESENTATIVE OF THE BARGAINING UNIT FOR THE PURPOSE OF
OBTAINING THE UNION'S VIEWS
OR OFFERING MANAGEMENT'S VIEWS ON THE OPERATION OF A POLICY OR
PROGRAM (EXCLUDING GRIEVANCE,
REPRESENTATION, COMPLAINTS, APPEALS, NEGOTIATIONS, ETC.). WILL BE
AUTHORIZED TRAVEL EXPENSES
AND PER DIEM.
SPECIFICALLY, THE RESPONDENT ARGUES THAT ALTHOUGH THOSE EMPLOYEES
ENGAGED IN REPRESENTING THE UNION DURING NEGOTIATIONS ARE ENTITLED TO
OFFICIAL TIME PURSUANT TO ARTICLE 7 SUBSECTION (A) OF THE CONTRACT,
SUBSECTION G(3) THEREOF EXCLUDES NEGOTIATIONS SUCH AS THOSE AT ISSUE
HEREIN FROM THE OBLIGATION TO PAY TRAVEL AND PER DIEM EXPENSES.
THE PARTIES REACHED COMPLETE AGREEMENT ON THE CONTRACT INVOLVED
HEREIN ON JULY 2, 1979. THE AUTHORITY TAKES ADMINISTRATIVE NOTICE THAT,
THEREAFTER, ON JULY 20, 1979, IT PUBLISHED A NOTICE RELATING TO OFFICIAL
TIME, 44 FED.REG. 42,778(1979), ANNOUNCING THAT AN INTERPRETATION OF THE
STATUTE WAS WARRANTED ON THE ISSUE OF WHETHER EMPLOYEES 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 PAYMENT FROM AGENCIES FOR THEIR TRAVEL AND PER DIEM
EXPENSES, AND INVITED COMMENTS THEREON. ON DECEMBER 19, 1979, THE
AUTHORITY ISSUED AN INTERPRETATION AND GUIDANCE, 2 FLRA 265, PROVIDING,
IN PART, THAT SUCH EMPLOYEES ARE ENTITLED TO PAYMENTS FOR TRAVEL AND PER
DIEM EXPENSES.
THE AUTHORITY, IN NUCLEAR REGULATORY COMMISSION, 8 FLRA NO.
124(1982), FOUND THAT ENTITLEMENT TO TRAVEL AND PER DIEM EXPENSES UNDER
SECTION 7131, AS WITH OTHER RIGHTS UNDER THE STATUTE, MAY BE WAIVED BY
CLEAR AND UNMISTAKABLE CONDUCT OF THE UNION. IN FINDING SUCH A WAIVER
AND DISMISSING THE COMPLAINT, THE AUTHORITY NOTED IN PARTICULAR THAT
"SUCH SPECIFIC AND UNEQUIVOCAL LANGUAGE WAS AGREED UPON AT A TIME WHEN
THE UNION HAD NOTICE THAT THE AUTHORITY WAS ACTIVELY INVITING AND
CONSIDERING COMMENTS ON THE QUESTION OF WHETHER EMPLOYEES ARE ENTITLED
TO SUCH PER DIEM AND TRAVEL EXPENSES WHILE THEY ARE ON OFFICIAL TIME FOR
CONTRACT NEGOTIATIONS." A DIFFERENT RESULT MUST BE REACHED IN THE
INSTANT CASE, CONSISTENT WITH THE QUOTED LANGUAGE FROM THE NUCLEAR
REGULATORY COMMISSION DECISION. HERE, THE PARTIES WERE NOT ON NOTICE AT
THE TIME OF NEGOTIATIONS THAT THE AUTHORITY WOULD CONSIDER THE QUESTION
OF ENTITLEMENT TO PER DIEM AND TRAVEL EXPENSES AS A STATUTORY RIGHT
UNDER SECTION 7131. VIEWED IN THIS CONTEXT, IT APPEARS THAT THE
LANGUAGE OF ARTICLE 7 IN THE PARTIES' AGREEMENT, EVEN IF IT
UNAMBIGUOUSLY PROVIDED THAT TRAVEL AND PER DIEM WOULD NOT BE PAID TO
EMPLOYEES REPRESENTING THE UNION IN CONTRACT NEGOTIATIONS, SHOULD NOT BE
FOUND TO CONSTITUTE THE CONSCIOUS YIELDING BY THE UNION OF A THEN
UNKNOWN STATUTORY RIGHT. /2/ THEREFORE, THE UNION DID NOT CLEARLY AND
UNMISTAKABLY WAIVE SUCH STATUTORY RIGHT TO PER DIEM AND TRAVEL EXPENSES
INCURRED BY EMPLOYEES ON ITS NEGOTIATING TEAM. /3/
ACCORDINGLY, THE AUTHORITY FINDS THAT THE RESPONDENT 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.
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 IMMIGRATION AND NATURALIZATION SERVICE
SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING OR REFUSING TO REIMBURSE EMPLOYEES J. BROZ, WARD LEIS AND
NORMAN FISHER FOR
THEIR TRAVEL AND PER DIEM EXPENSES INCURRED AS A RESULT OF THEIR
PARTICIPATION ON OFFICIAL
TIME, PURSUANT TO SECTION 7131(A) OF THE STATUTE, AS DESIGNATED
REPRESENTATIVES OF THE
NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN
COLLECTIVE 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 J. BROZ, WARD LEIS AND NORMAN FISHER, BASED
UPON THEIR PREVIOUSLY
SUBMITTED VOUCHERS, FOR THEIR TRAVEL AND PER DIEM EXPENSES INCURRED
AS A RESULT OF THEIR
PARTICIPATION ON OFFICIAL TIME, PURSUANT TO SECTION 7131(A) OF THE
STATUTE, AS DESIGNATED
REPRESENTATIVES OF THE NATIONAL IMMIGRATION AND NATURALIZATION
SERVICE COUNCIL, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, IN COLLECTIVE
BARGAINING.
(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, OR HIS DESIGNEE, 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 III, 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.
ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 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:
WILL NOT FAIL OR REFUSE TO REIMBURSE EMPLOYEES J. BROZ, WARD LEIS AND
NORMAN FISHER FOR THEIR TRAVEL AND PER DIEM EXPENSES INCURRED AS A
RESULT OF THEIR PARTICIPATION ON OFFICIAL TIME, PURSUANT TO SECTION
7131(A) OF THE STATUTE, AS DESIGNATED REPRESENTATIVES OF THE NATIONAL
IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
IN COLLECTIVE 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 J. BROZ, WARD LEIS AND NORMAN FISHER,
BASED UPON THEIR PREVIOUSLY SUBMITTED VOUCHERS, FOR THEIR TRAVEL AND PER
DIEM EXPENSES INCURRED AS A RESULT OF THEIR PARTICIPATION ON OFFICIAL
TIME, PURSUANT TO SECTION 7131(A) OF THE STATUTE, AS DESIGNATED
REPRESENTATIVES OF THE NATIONAL IMMIGRATION AND NATURALIZATION SERVICE
COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, IN
COLLECTIVE 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 III, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS
IS: 1111 18TH STREET, N.W., SUITE 700, WASHINGTON, D.C., 20036 AND
WHOSE TELEPHONE NUMBER IS: (202) 653-8507.
--------------- FOOTNOTES$ ---------------
/1/ BUT SEE DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK
(ALBANY, NEW YORK), 7 FLRA NO. 69(1981), REVERSED SUB NOM. DIVISION OF
MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK AND DEPARTMENT OF DEFENSE
V. FEDERAL LABOR RELATIONS AUTHORITY, NO. 82-4036 (2D CIR. JUNE 28,
1982) AND U.S. DEPARTMENT OF AGRICULTURE, SCIENCE AND EDUCATION
ADMINISTRATION, AGRICULTURAL RESEARCH, NORTH CENTRAL REGION,
DAKOTAS-ALASKA AREA, 6 FLRA NO. 45(1981), REVERSED SUB NOM. UNITED
STATES DEPARTMENT OF AGRICULTURE V. FEDERAL LABOR RELATIONS AUTHORITY,
NO. 81-1948 (8TH CIR. AUG. 9, 1982).
/2/ SEE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, NATIONAL OFFICE AND
WESTERN REGION, SAN FRANCISCO, CALIFORNIA, 8 FLRA 108(1982), AT N. 1.
/3/ CF. DEPARTMENT OF THE AIR FORCE, U.S. AIR FORCE ACADEMY, 6 FLRA
NO. 100(1981) (WHEREIN THE AUTHORITY DETERMINED THAT NO CLEAR AND
UNMISTAKABLE WAIVER WAS PRESENT IN A CASE INVOLVING A REFUSAL TO
NEGOTIATE A MATTER WHICH THE AUTHORITY HAD PREVIOUSLY HELD TO BE
NEGOTIABLE).