14:0141(27)CA - DOD, Army and Air Force, HQ Army and Air Force Exchange Service, Dallas, TX and NFFE -- 1984 FLRAdec CA



[ v14 p141 ]
14:0141(27)CA
The decision of the Authority follows:


 14 FLRA No. 27
 
 DEPARTMENT OF DEFENSE
 DEPARTMENTS OF THE ARMY AND AIR FORCE
 HQ ARMY AND AIR FORCE EXCHANGE SERVICE
 DALLAS, TEXAS
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, INDEPENDENT
 Charging Party
 
                                            Case No. 6-CA-30078
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, granting the General Counsel's Motion for
 Summary Judgment, finding that the Respondent had engaged in certain
 unfair labor practices, and recommending that the Respondent be ordered
 to cease and desist therefrom and take certain affirmative action.
 Thereafter, the Respondent filed exceptions to the Judge's Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge and finds that no prejudicial error was committed.  The rulings
 are hereby affirmed.  Upon consideration of the Judge's Decision and the
 entire record in this case, the Authority hereby adopts the Judge's
 findings, conclusions and recommendations only to the extent consistent
 herewith.
 
    The Judge concluded that the Respondent's failure and refusal to pay
 travel and per diem expenses to its employees Musette Ingold and Sharon
 Williams, which expenses were incurred while serving as Union
 representatives in mid-term negotiations conducted since September 17,
 1982, constituted a refusal to comply with section 7131(a) of the
 Statute in violation of section 7116(a)(1) and (8) of the Statute.
 Subsequent to the issuance of the Judge's Decision, the United States
 Supreme Court concluded in Bureau of Alcohol, Tobacco and Firearms v.
 FLRA, 104 S.Ct. 439(1983) that the obligation of an agency under section
 7131(a) of the Statute to provide official time to employees
 representing an exclusive representative in the negotiation of a
 collective bargaining agreement does not encompass the payment of travel
 expenses and per diem allowances.  Pursuant to that decision and for the
 reasons set forth by the Court, the Authority concludes herein that the
 Respondent did not fail or refuse to comply with the provisions of
 section 7131(a) of the Statute.  Therefore, it follows that the
 Respondent did not violate section 7116(a)(1) and (8) of the Statute.
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint in Case No. 6-CA-30078 be,
 and it hereby is, dismissed.  /1/
 
    Issued, Washington, D.C., March 23, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DEPARTMENT OF DEFENSE
    DEPARTMENTS OF THE ARMY AND AIR FORCE
    HQ ARMY AND AIR FORCE EXCHANGE SERVICE
    DALLAS, TEXAS
 
                                Respondent
 
    and
 
    NATIONAL FEDERATION OF FEDERAL
    EMPLOYEES, INDEPENDENT
 
                              Charging Party
 
                                       Case No.: 6-CA-30078
 
    James E. Dumerer, Esq.
    For the General Counsel
 
    Irene Jackson, Esq.
    For the Respondent
 
    Before:  ELI NASH, JR.
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose pursuant to the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq., (hereinafter
 called the Statute), as a result of an unfair labor practice Complaint
 and Notice of Hearing issued on February 25, 1983 by the Regional
 Director, Region VI, Federal Labor Relations Authority (hereinafter
 called the Authority), Dallas, Texas.
 
    The Complaint alleges that the Department of Defense, Departments of
 the Army and Air Force, Headquarters Army and Air Force Exchange
 Service, Dallas, Texas (herein called respondent) refused to comply with
 the provisions of section 7131(a) of the Statute by failing and refusing
 to provide reimbursement of travel and per diem expenses incurred by two
 employees who attended negotiations on behalf of the National Federation
 of Federal Employees, Independent, (herein called the union) in
 violation of section 7116(a)(1) and (8) of the Statute.
 
    On March 18, 1983, respondent filed its Answer to the aforesaid
 Complaint, admitting the allegations contained in paragraphs 2, 3, 4, 5,
 6, 7, 8 and 9 of the Complaint.  Thereafter on April 13, 1983, the
 General Counsel filed a Motion for Summary Judgment, alleging, in
 essence, that all material factual allegations of the Complaint were
 admitted, that no litigable issues remained and that the admitted facts
 were sufficient to establish a violation of the Statute.  On April 13,
 1983 the Chief Administrative Law Judge issued an Order postponing the
 scheduled hearing in this matter indefinitely.  On April 18, 1983,
 respondent filed its opposition Motion for Summary Judgment, which
 essentially admitted that there were no material factual disputes, but
 requesting that the matter be held in abeyance pending decision by the
 Supreme Court of the travel and per diem issue.  On May 3, 1983, the
 Chief Administrative Law Judge issued an Order requiring responses to
 the General Counsel's Motion for Summary Judgment be served by May 18,
 1983, and that all parties serve any additional statements or Memoranda
 of Law on or before June 1, 1983.  On May 16, respondent filed an
 addendum to its opposition to Motion for Summary Judgment reiterating
 its request that the matter be held in abeyance.  On May 31, respondent
 filed a response to the Chief Judge's Order of May 3 again asking that
 the case be held in abeyance.  No additional briefs were filed in the
 matter.
 
    The purpose of Summary Judgment is to avoid useless, expensive, and
 time-consuming trials where there are no genuine issues of material fact
 to be tried.  Cf. Fed. R. Civ. p. 56;  Lyons v. Board of Education,
 Charleston Reorganized School District Number 1 of Miss. City, Mo., 523
 F.2d 430, 347 (8 Cir., 1975).  The Rules and Regulations of the
 Authority also specifically authorize the use of Motions for Summary
 Judgment in the litigation of unfair labor practice charges under the
 Statute.  See 5 C.F.R. 2423.19(k)(1980).  Moreover, motions in the
 nature of Motions for Summary Judgment are deemed appropriate under the
 Administrative Procedure Act.  See, e.g., Municipal Lightboards of
 Reading and Wakefield, Mass. v. Federal Power Commission, 450 Fed.2d
 1341, 1345-1346 (D.C. Cir., 1971), Cert. denied, 405 U.S. 989(1972).
 
    Upon examination of the General Counsel's Motion for Summary Judgment
 and the respondent's replies thereto, it appears that there are no
 genuine issues of material fact and only legal issues are involved.  In
 such circumstances, the required hearing under the Statute may consist
 wholly of an opportunity to present written argument.  See F. Davis,
 Administrative Law Treatise, 2d Edition, Sections 12.1, 12.10(1979).
 See also Section 12.1, at p. 406;  Internal Revenue Service, A/SLMR No.
 897, 7 A/SLMR 782(1977).  The parties have been adequately afforded such
 an opportunity.
 
                             Findings of Fact
 
    The material admitted facts are as follows:
 
          1.  Respondent is an agency within the meaning of 5 U.S.C.
       7103(a)(3).
 
          2.  The union is a labor organization within the meaning of 5
       U.S.C. 7103(a)(4).
 
          3.  The union is recognized by respondent as the exclusive
       representative in an appropriate bargaining unit.
 
          4.  Since on or about September 8 through September 17, 1982,
       representatives of respondent and of the union engaged in
       negotiations over a collective bargaining agreement covering
       employees in an appropriate unit.
 
          5.  At all times material herein, respondent has maintained a
       policy of granting official time for negotiations to employee
       representatives engaged in negotiations with respondent, but has
       refused to provide reimbursement for travel and per diem expenses
       incurred in such negotiations.
 
          6.  Since on or about September 17, 1982, respondent has failed
       and refused, and continues to fail and refuse, to reimburse union
       representative Musette Ingold, an employee as defined in 5 U.S.C.
       7103(a)(2)(A), for travel and per diem expenses incurred with
       respect to negotiations involved herein.
 
          7.  Since on or about September 17, 1982, respondent has failed
       and refused, and continues to fail and refuse, to reimburse Sharon
       Williams, an employee as defined in 5 U.S.C. 7103(a)(2)(A) for
       travel and per diem expenses incurred with respect to negotiations
       involved herein.
 
                        Discussion and Conclusions
 
    As already noted, no litigable issues which would require hearing in
 this matter remain.  Further, respondent's request that the matter be
 held in abeyance pending the Supreme Court's decision on the issue is
 not accompanied by any persuasive reason why such an action would
 effectuate the purposes of the Statute.  Respondent submits that despite
 the Authority's consistent holdings that failure and refusal to pay for
 travel and per diem costs for employees involved in mid-term
 negotiations on behalf of a union violates sections 7116(a)(1) and (8)
 of the Statute, only the Ninth Circuit, Court of Appeals has upheld the
 Authority on the issue while other Circuit Courts of Appeal have held to
 the contrary.  Notwithstanding the fact that several Circuit Courts have
 not, at this time, adopted the Authority position, I am constrained to
 follow what is presently Authority law on the matter.
 
    Since respondent has admittedly failed and refused to pay travel and
 per diem expenses for employees engaged in mid-term negotiations on
 behalf of the union, which according to past Authority decisions
 violates the Statute, it is found that respondent violated sections
 7116(a)(1) and (8) of the Statute by failing and refusing to pay such
 travel and per diem costs.  /2/
 
    Having found and concluded that respondent violated section
 7116(a)(1) and (8) of the Statute, it is recommended that the General
 Counsel's Motion for Summary Judgment be granted, and that the Authority
 issue the following Order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that Department of Defense, Departments of the Army and
 Air Force, Headquarters Army and Air Force Exchange Service, Dallas,
 Texas shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to provide payment of properly
       documented travel and per diem expenses, to Musette Ingold and
       Sharon Williams, or to any other employee, incurred as a result of
       their participation as the duly designated representatives of the
       National Federation of Federal Employees Union, Independent, the
       employees' exclusive representative, during the negotiation of a
       collective bargaining agreement.
 
          (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) Pay Musette Ingold and Sharon Williams, and all other
       employees who represented the National Federation of Federal
       Employees Union, Independent in negotiations for a collective
       bargaining agreement since September 17, 1982, for their travel
       and per diem expenses, incurred as a result of their participation
       as the duly designated representatives of the National Federation
       of Federal Employees Union, Independent.
 
          (b) Post at all of its facilities, where bargaining unit
       employees are located, 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 Commander 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
       Commander shall take reasonable steps to ensure 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.
                                       ELI NASH, JR.
                                       Administrative Law Judge
 
    Dated:  June 21, 1983
 
    Washington, D.C.
 
                                 APPENDIX
 
  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 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail and refuse to provide payment of properly documented
 travel and per diem expenses to Musette Ingold and Sharon Williams, or
 to any other employee, incurred as a result of their participation as
 the duly designated representatives of the National Federation of
 Federal Employees Union, Independent, the employees' exclusive
 representatives, during the negotiation of a collective bargaining
 agreement.
 
    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 pay employees Musette Ingold and Sharon Williams, and all
 other employees who represented the National Federation of Federal
 Employees Union, Independent in negotiations for a collective bargaining
 agreement since September 17, 1982, for their travel and per diem
 expenses incurred as a result of their participation as the duly
 designated representative of the National Federation of Federal
 Employees Union, Independent.
                                       (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 any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region 6,
 whose address is:  P.O. Box 2640, Dallas, Texas 75221, and whose
 telephone number is:  (214) 729-4996.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Authority received a motion filed by the Counsel for the
 General Counsel seeking to have the case remanded to the Regional
 Director for withdrawal of the complaint and dismissal of the charge.
 In view of the Authority's disposition on the merits of this case, the
 Counsel for the General Counsel's motion is hereby denied.
 
 
    /2/ See Interpretation and Guidance, 2 FLRA 264(1979);  Bureau of
 Alcohol, Tobacco and Firearms, Western Region, Department of the
 Treasury, San Francisco, California, 4 FLRA No. 40(1980), appeal
 docketed, No. 80-7673 (9th Cir. Nov. 28, 1980);  U.S. Department of
 Agriculture, Science and Education Administration, Agricultural
 Research, North Central Region, Dakotas-Alaska Area, 6 FLRA No.
 45(1981), appeal docketed, No. 81-1948 (8th Cir. September 4, 1981);
 Florida National Guard, 5 FLRA No. 49(1981), appeal docketed, No.
 81-5466 (11th Cir. May 18, 1981);  Division of Military and Naval
 Affairs, State of New York (Albany, New York), 7 FLRA No. 69(1981);
 Burea