22:0259(25)CA - Office of the General Counsel, NLRB and NLRBU -- 1986 FLRAdec CA



[ v22 p259 ]
22:0259(25)CA
The decision of the Authority follows:


 22 FLRA No. 25
 
 OFFICE OF THE GENERAL COUNSEL 
 NATIONAL LABOR RELATIONS BOARD
 Respondent
 
 and
 
 NATIONAL LABOR RELATIONS BOARD UNION
 Charging Party
 
                                            Case NO. 3-CA-40176
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority based on the
 Regional Director's "Order Transferring Case to the Authority" in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations.  The complaint alleges that the Respondent violated section
 7116(a)(1) and (5) of the Federal Service Labor-Management Relations
 Statute (the Statute) by unilaterally rejecting provisions of the
 parties' collective bargaining agreements and Memorandum of
 Understanding, all of which authorized payment of travel and per diem
 expenses, and by refusing to negotiate with the Charging Party regarding
 payment of travel and per diem expenses.
 
                              II.  Background
 
    The Charging Party is the exclusive representative for two separate
 professional and nonprofessional units of the Respondent's employees.
 Separate collective bargaining agreements were negotiated covering the
 two units.  The agreements were executed on August 1, 1980 for
 three-year terms.  On July 8, 1983, the parties agreed to extend the
 agreements until new agreements were reached or until 30 days after
 either party notified the other of a desire to terminate.
 
    Each of the agreements contained the following provisions relative to
 the payment of travel and per diem expenses.
 
          (a) Official Time -- In accordance with existing law, official
       time has the same meaning as when an employee is otherwise on
       official duty status and shall include entitlements to payment for
       such time, travel, per diem and other benefits.  In the event the
       FLRA or a court modifies the existing law, this Article will be
       reopened upon the request of either party regarding the
       employees(') entitlement to travel, per diem and other benefits.
 
          (b) Administrative Leave -- Administrative leave is leave
       granted which is not charged to annual, sick, or leave without
       pay.  Employees on such leave shall not be entitled to travel or
       per diem.
 
    In September 1983, the parties executed a Memorandum of Understanding
 (MOU) containing ground rules governing the parties' negotiations for
 new collective bargaining agreements for both units.  Section 1 of the
 MOU provided as follows:
 
          1.  The NLRBU may have up to five bargaining committee members
       on official time for scheduled negotiating sessions regardless of
       the number of management committee members;  /1/ at its option,
       the NLRBU may have a sixth committee member present, not on
       official time, and share the committee's administrative leave
       among such six members.  The foregoing shall not apply where the
       parties agree to negotiate in subcommittee.
 
 Since September 1983, the parties were engaged in negotiating new
 collective bargaining agreements.  As of the date of the stipulation in
 this case, no new agreements had been reached.
 
    Payments of travel and per diem expenses were made by the Respondent
 until January 26, 1984.  At that time, the Respondent informed the
 Charging Party that it would no longer make such payments on the basis
 that payment of travel and per diem expenses was not in the primary
 interest of the Government and the Respondent was precluded by law from
 making such payents.  The Respondent then offered to bargain over the
 impact and implementation of its decision to no longer make payments and
 apparently rejected the Charging Party's claim that the decision itself
 was a negotiable matter.  The parties met and reached agreement on the
 Charging Party's impact and implementation proposals.  During the
 bargaining sessions which followed the Respondent's decision to stop
 paying travel and per diem expenses, the Charging Party reduced its
 bargaining team from five members to three and also paid the travel and
 per diem expenses of the employees acting as its negotiators.
 
                      III.  Positions of the Parties
 
    The Respondent argues basically that payments of travel and per diem
 expenses are contrary to law and therefore the refusal to make such
 payments is not a violation of the Statute;  that it acted lawfully in
 refusing to negotiate over whether payment of travel and per diem
 expenses is in the primary interest of the Government;  and that under
 the collective bargaining agreements, the provisions relating to travel
 and per diem expenses could be reopened by either party if the Authority
 or a court modified existing case law on the subject matter as occurred
 here.
 
    The General Counsel takes the position that the Respondent's
 agreement to pay travel and per diem expenses is enforceable under the
 Statute in the absence of any showing that such matter is inconsistent
 with Federal law or is not a condition of employment.  Therefore, the
 General Counsel asserts that the Respondent's repudiation of its
 agreement to make such payments and its further declaration that the
 refusal to make such payments was nonnegotiable constituted a violation
 of section 7116(a)(1) and (5) of the Statute.  To remedy this conduct,
 the General Counsel requests that the Respondent be ordered to make
 whole any unit employees uho expended funds for their travel and per
 diem expenses for negotiations after January 26, 1984.  The General
 Counsel also requests a nationwide posting of the remedial notice.
 
    The Charging Party essentially argues that the Respondent unlawfully
 terminated payment of travel and per diem expenses and requests that an
 appropriate remedy include retroactive payment of travel and per diem to
 the Charging Party.  As to the language of the provisions in the
 collective bargaining agreements permitting their reopener upon
 modification of case precedent, the Charging Party argues that rather
 than reopening the agreements and allowing negotiations to take place,
 the Respondent chose to abrogate the provisions and refuse to bargain.
 
    In an amicus curiae brief filed by the Office of Personnel Management
 (OPM), it is argued that an agency's decision to authorize payment of
 travel expenses and per diem allowances is outside the scope of
 bargaining under the Statute.  Here, OPM argues, the Respondent was
 correct in abrogating the provisions of the agreements calling for
 payment of travel and per diem expenses.
 
                               IV.  Analysis
 
    Turning first to the Respondent's contentions that payment of travel
 and per diem expenses is contrary to law, and that the Respondent did
 not unlawfully refuse to bargain over whether such payments are in the
 primary interest of the Government, the Authority found in National
 Treasury Employees Union and Department of the Treasury, U.S. Customs
 Service, 21 FLRA No. 2 (1986), petition for review filed sub nom.
 Department of the Treasury, U.S. Customs Service v. FLRA, No. 86-1198
 (D.C. Cir. Mar. 27, 1986), that agencies have discretion under the
 Travel Expense Act, 5 U.S.C. Sections 5701 et seq., and implementing
 regulations, to determine whether and under what circumstances travel
 related to labor-management relations activities is sufficiently within
 the interest of the United States so as to constitute official business
 for which employees may receive appropriate expenses from Federal funds.
  Further, the Authority held that the exercise of such discretion is
 subject to negotiations.  /1/ The Authority noted, however, that
 determinations as to the appropriateness of specific travel and per diem
 expenses which are necessary and proper under law and governing
 regulations would have to be made on a case-by-case basis.
 
    In this case, the parties had negotiated for the payment of travel
 and per diem expenses and had included such provisions in their
 collective bargaining agreements, which were extended pending the
 negotiation of new collective bargaining agreements, and had also
 included such payments in the MOU covering ground rules for the
 negotiations.  In Department of Defense Dependents Schools System, 21
 FLRA NO. 125 (1986), the Authority concluded that an agency's conduct in
 repudiating provisions of a negotiated agreement authorizing the payment
 of travel and per diem expenses violated section 7116(a)(1) and (5) of
 the Statute.  Similarly, in Adjutant General, State of Ohio, Ohio Air
 National Guard, Worthington, Ohio, 21 FLRA NO. 124 (1986), the Authority
 found that the unilateral termination and repudiation of a memorandum of
 understanding setting forth ground rules for upcoming negotiations which
 provided for the payment of travel and per diem expenses of employees
 serving as the union's negotiators violated section 7116(a)(1) and (5)
 of the Statute.  On the same basis, the Authority finds that the
 Respondent's repudiation of the agreements and the MOU in this case
 violated section 7116(a)(1) and (5) of the Statute.
 
    As to the Respondent's contention that it had the right to reopen the
 provisions of the agreements as a result of the modification of existing
 law, /2/ there is no evidence that the Respondent had in fact reopened
 the agreements or requested to do so.  The language of the "Official
 Time" provisions of the agreements, as set forth above, specifies that
 "(i)n the event the FLRA or a court modifies the existing law, this
 Article will be reopened upon the request of either party regarding the
 employees(') entitlement to travel, per diem and other benefits." The
 stipulated facts here indicate that the parties were engaged in
 negotiations for new collective bargaining agreements commencing in
 September 1983 and that payments of travel and per diem expenses were
 made by the Respondent until Uanuary 26, 1984.  At that time, the
 Respondent informed the Charging Party that payments would no longer be
 made based upon its decision that such payments could not be certified
 as being in the primary interest of the Government.  The Authority does
 not view such notification to the Charging Party as a request to reopen
 the agreements.  However, even if it could be found that the provisions
 of the agreements had been reopened, the Respondent's conduct would
 still be a violation of the Statute.  As previously noted,
 determinations as to whether and under what circumstances travel related
 to labor-management relations activities is sufficiently within the
 interest of the United States so as to constitute official business for
 which employees may receive appropriate expenses from Federal funds is
 within the duty to bargain.  Here, when the Respondent notified the
 Charging Party of its unilateral decision to no longer make such
 payments, it also rejected the Charging Party's assertion that the
 Respondent was obligated to bargain over the decision itself.  Instead,
 the Respondent chose to limit bargaining only to the effects of its
 decision to discontinue the payment of travel and per diem expenses.
 Such conduct is contrary to the Respondent's duty to bargain in good
 faith in violation of section 7116(a)(1) adn (5) of the Statute.
 
                                V.  Remedy
 
    The General Counsel has requested that there be a nationwide posting
 of the remedial unfair labor practice notice and that the Respondent be
 ordered to make whole any unit employee who expended funds for travel
 and per diem expenses in connection with negotiations after January 26,
 1984.  The Charging Party, on the other hand, requests that it be given
 retroactive payment for the amount spent on travel and per diem expenses
 which, the parties stipulated, was taken from union membership dues
 funds.
 
    As noted above, the Respondent paid travel and per diem expenses
 until January 26, 1984.  Thereafter, the Charging Party made such
 payments to unit employees who served as its negotiators.  In our view,
 it will effectuate the purposes and policies of the Statute to issue an
 order requiring the Respondent to make whole the Charging Party for
 those travel and per diem expenses which it incurred by reimbursing the
 affected employees who should have received such payments directly from
 the Respondent.  A contrary conclusion would result in a windfall to the
 Respondent for its unlawful conduct.  Such an order assumes, of course,
 that payment of the travel and per diem expenses involved would be
 consistent with law and regulation, including the Federal Travel
 Regulations.  Further, although it does not appear from the record
 before us that bargaining unit employees themselves expended funds for
 their travel and per diem expenses, in the event that there are such
 employees who either did not receive the payments to which they were
 entitled or were not compensated fully for such expenses, we shall order
 the Respondent to reimburse them for the travel and per diem expenses
 they incurred upon their submission of properly documented claims for
 such payments.  These payments too must be consistent with law and
 regulation, including the Federal Travel Regulations.
 
    As requested, we shall also order a nationwide posting of the
 remedial notice.  The Charging Party represents two nationwide units of
 the Respondent's employees, professional and nonprofessional, and
 therefore the Respondent's conduct in unilaterally repudiating
 provisions in the agreements covering the employees in those units can
 be effectively remedied only by an Order which requires the posting of
 the remedial notices wherever the affected employees in such units are
 situated.
 
                              VI.  Conclusion
 
    The Authority concludes that the Respondent's repudiation of the
 collective bargaining agreements and the MOU and its subsequent refusal
 to bargain in good faith violated section 7116(a)(1) and (5) of the
 Statute.  The Authority shall therefore issue the following Order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, it is ordered that the Office of the
 General Counsel, National Labor Relations Board shall:
 
    1.  Cease and desist from:
 
    (a) Repudiating the terms of the 1980 collective bargaining
 agreements and the September 1983 Memorandum of Understanding negotiated
 with the National Labor Relations Board Union, the exclusive
 representative of units of its professional and nonprofessional
 employees, which authorize payment of travel and per diem expenses to
 unit employees.
 
    (b) Failing or refusing to bargain with the National Labor Relations
 Board Union, the exclusive representative of units of its professional
 and nonprofessional employees, concerning payment for travel and per
 diem expenses to unit employees.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Comply with the terms of the 1980 collective bargaining
 agreements and the September 1983 Memorandum of Understanding negotiated
 with the National Labor Relations Board Union, the exclusive
 representative of units of its professional and nonprofessional
 employees, which authorize payment of travel and per diem expenses to
 unit employees.
 
    (b) Negotiate upon request of the National Labor Relations Board
 Union concerning payment for travel and per diem expenses to unit
 employees.
 
    (c) Make the National Labor Relations Board Union whole for the costs
 it incurred by paying the travel and per diem expenses of bargaining
 unit employees who acted as its negotiators after January 26, 1984, for
 which the employees otherwise would have been entitled to reimbursement
 directly by the Respondent.
 
    (d) Pay travel and per diem expenses, consistent with law and
 regulation, including the Federal Travel Regulations, to all bargaining
 unit employees who submit or previously submitted appropriate claims for
 such payments for negotiations which occurred after January 26, 1984, to
 the extent that such expenses have not been reimbursed by the National
 Labor Relations Board Union.
 
    (e) Post at all its facilities where bargaining unit employees
 represented by the National Labor Relations Board Union 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 General Counsel of the National Labor Relations Board, or
 a 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.
 Reasonable steps shall be taken to ensure that such Notices are not
 altered, defaced, or covered by any other material.
 
    (f) 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 with it.
 
    Issued, Washington, D.C., June 25, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) See also American Federation of Government Employees, AFL-CIO,
 National Council of Federal Grain Inspection Locals and U.S. Department
 of Agriculture, Federal Grain Inspection Service, 21 FLRA No. 21 (1986)
 and National Treasury Employees Union and Department of the Treasury,
 Internal Revenue Service, 21 FLRA No. 19 (1986), in which proposals
 authorizing payment of various travel and per diem expenses were found
 to be within the duty to bargain.
 
    (2) The modification of existing law referred to by the Respondent is
 the United States Supreme Court's decision in Bureau of Alcohol, Tobacco
 and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983), in which the Court
 found that section 7131(a) of the Statute does not entitle employees on
 official time to the payment of travel and per diem expenses.
 Subsequent to that decision, of course, the Authority found the
 authorization of payment for travel and per diem expenses to be within
 the duty to bargain.  National Treasury Employees Union and Department
 of the Treasury, U.S. Customs Service, supra.
 
 
 
 
 
                                 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
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT repudiate the terms of the 1980 collective bargaining
 agreements and the September 1983 Memorandum of Understanding negotiated
 with the National Labor Relations Board Union, the exclusive
 representative of units of our professional and nonprofessional
 employees, which authorize payment of travel and per diem expenses to
 unit employees.
 
    WE WILL NOT fail or refuse to bargain with the National Labor
 Relations Board Union, the exclusive representative of units of our
 professional and nonprofessional employees, concerning payment for
 travel and per diem expenses to unit employees.
 
    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
 Federal Service Labor-Management Relations Statute.
 
    WE WILL comply with the terms of the 1980 collective bargaining
 agreements and the September 1983 Memorandum of Understanding negotiated
 with the National Labor Relations Board Union, the exclusive
 representative of units of our professional and nonprofessional
 employees, which authorize payment of travel and per diem expenses to
 unit employees.
 
    WE WILL negotiate upon request of the National Labor Relations Board
 Union concerning payment for travel and per diem expenses.
 
    WE WILL make the National Labor Relations Board Union whole for the
 costs it incurred by paying the travel and per diem expenses of
 bargaining unit employees who acted as its negotiators after January 26,
 1984, for which the employees otherwise would have been entitled to
 reimbursement directly by us.
 
    WE WILL pay travel and per diem expenses, consistent with law and
 regulation, including the Federal Travel Regulations, to all bargaining
 unit employees who submit or previously submitted appropriate claims for
 such payments for negotiations which occurred after January 26, 1984, to
 the extent that such expenses have not been reimbursed by the National
 Labor Relations Board Union.
                                       (Activity)
 
    Dated:  . . .
                                       By:  (Signature) (Title)
 
    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, 1111 18th Street, NW., Room 700 (P.O. Box 33758),
 Washingt