10:0202(40)CA - INS and National INS Council, AFGE -- 1982 FLRAdec CA



[ 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
 WESTE