22:0486(50)NG - NLRBU and NLRB, The Board and Office of the General Counsel -- 1986 FLRAdec NG
[ v22 p486 ]
The decision of the Authority follows:
22 FLRA No. 50 NATIONAL LABOR RELATIONS BOARD UNION Union and NATIONAL LABOR RELATIONS BOARD, THE BOARD AND OFFICE OF THE GENERAL COUNSEL Agency Case No. 0-NG-1119 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case The petition for review in this case comes before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It raises issues concerning the negotiability of three alternative proposals presented by the Union involving the payment by the Agency of travel and per diem expenses to employees when engaged in representational activities. II. Union Proposals Alternative Proposal Number 1 During the term of the Agreements, the Agency will pay the travel and per diem expenses of NLRBU employee representatives participating on the Incentive Awards, EEO and Health and Safety Committees and in consultations and negotiations. Alternative Proposal Number 2 (a) During the term of the Agreements, the participation of the NLRBU in the activities of the Incentive Awards, EEO and Health and Safety Committees will be considered in the primary interest of the government by the Agency and the Agency will pay the travel and per diem expenses of the NLRBU employee representatives serving on such committees. (b) During the term of the Agreements, the payment of the travel and per diem expenses of the NLRBU employee representatives when they attend consultations or engage in negotiations will be considered in the primary interest of the government by the Agency and the Agency will pay such expenses. Alternative Proposal Number 3 (a) During the term of the Agreements, when the Agency determines that the participation of the NLRBU in the scheduled activities of the Incentive Awards, EEO and Health and Safety Committees is in the primary interest of the government, the Agency will pay the travel and per diem expenses of NLRBU employee representatives serving on such committees. (b) During the term of the Agreements, when the Agency determines that the payment of the travel and per diem expenses of NLRBU employee representatives participating in consultations or engaged in negotiations is in the primary interest of the government, the Agency will pay such expenses. III. Positions of the Parties As explained by the Union, Alternative Number 1 seeks to obligate the Agency to pay the travel and per diem expenses of Union employee representatives located at the Agency's Washington, D.C. headquarters who by law and agreement are entitled to official time for the meeting referred to in the proposal. In presenting this Alternative, the Union states that it presupposes the negotiability of travel and per diem expenses without regard to the "primary interest". /1/ The Union states further that Alternative Number 2 is intended to apply only if Alternative Number 1 is determined to be nonnegotiable because of primary interest test must be made in order for travel and per diem expenses to be paid. Finally, Alternative Number 3 is intended to apply only if Alternative Numbers 1 and 2 are determined to be nonnegotiable because of primary interest test must be made and such a test is in the sole discretion of the Agency to make. The Agency contends that all of the Alternatives are nonnegotiable because the reimbursement of Federal employees for travel expenses is a matter specifically provided for by statute and thus is not a condition of employment within the meaning of section 7103(a)(14) of the Statute. The Agency also contends that Alternative Number 1 is nonnegotiable because it disregards the primary interest test and thus conflicts with law and Government-wide rules and regulations, and that Alternative Number 2 is nonnegotiable because the determination of primary interest cannot be made bilaterally or in advance of actual situations. IV. Analysis A. "Conditions of Employment" The Agency makes an essentially identical "conditions of employment" argument to that made by the agency in U.S. Customs Service (see fn. 1). The Authority rejected that argument in U.S. Customs Service and it is rejected here for the same reasons set forth in that case. B. "Primary Interest Test" It is well-established that a proposal which concerns a condition of employment is negotiable only where it does not otherwise conflict with applicable statutory and regulatory provisions. In terms of the negotiability of travel and per diem expenses, the Authority has determined that conformance with the requirements specified by the Comptroller General in administering and interpreting the Travel Expense Act is a necessary condition for finding that a proposal involving the payment of travel expenses and per diem allowances is negotiable. See U.S. Customs Service. The Comptroller General has stated that an agency is not precluded from making payment of travel expenses and per diem allowances to union representatives upon a determination that it serves the convenience of the agency or is otherwise in the primary interest of the Government. 46 Comp. Gen. 21 (1966). However, insofar as the Union specifies that Alternative Number 1 presupposes the negotiability of travel and per diem expenses without regard to the "primary interest test," the Authority agrees with the Agency's contention that this formulation of the proposal conflicts with law and Government-wide regulation. As to the Agency's contention that Alternative Number 2 is nonnegotiable because the determination of primary interest cannot be made bilaterally or in advance of actual situations, the Authority must disagree. In U.S. Customs Service the Authority specifically found that determinations concerning whether to make payments for otherwise proper travel expenses and per diem allowances are within the discretionary administrative authority of an agency. Moreover, it is well-established that insofar as an agency has discretion regarding a matter affecting conditions of employment, it is obligated under the Statute to exercise that discretion through negotiations unless precluded by regulatory or statutory provisions. National Treasury Employees Union, Chapter 6 and International Revenue Service, New Orleans District, 3 FLRA 747, 759-60 (1980). In this case, the Agency has not cited any legal or regulatory provision which would absolutely prohibit it from exercising through negotiations the discretion which it possesses to determine whether, and under what circumstances, travel attendant to labor-management relations activities is in the primary interest of the Government. /2/ While the Authority found in U.S. Customs Service that the determination that such payments are in the primary interest of the Government is a necessary (and itself bargainable) condition for the negotiability of proposals requiring the payment of travel and per diem expenses, a primary interest determination is not the only condition for finding such proposals negotiable. As previously mentioned, such proposals must also be in conformance with all other applicable regulatory and statutory provisions. In this case the Agency does not contend that Alternative Number 2 would conflict with, for example, the requirements of the Federal Travel Regulations (FTRs)other than those relating to the determination of primary interest, or with any other applicable laws or regulations. The Authority notes that there is nothing in Alternative Number 2 or the submissions of the parties which indicates that its provisions are to be applied in any manner which is inconsistent with applicable legal and regulatory requirements. Alternative Number 2 would not require the Agency to use, for example, specific authorization procedures and practices relating to travel which conflicted with the FTRs. It would not forclose individual determinations regarding the propriety under the FTRs of authorizing particular travel and expenses. Finally, to the extent that case-by-case determinations are required under law and regulation, this proposal would not be inconsistent with such procedures. See U.S. Customs Service. The Union states that Alternative Number 3 is intended to apply only if Alternative Numbers 1 and 2 are determined to be nonnegotiable. Given the results of the foregoing analysis with respect to Alternative Number 2, the Authority finds it unnecessary to address further the negotiability of Alternative Number 3. V. Conclusion The Authority finds that all three alternative formulations of the Union proposal concern a condition of employment. Alternative Number 1 conflicts by law and Government-wide regulation, and, therefore, is outside the duty to bargain. Alternative Number 2 is within the Agency's administrative discretion, and is not inconsistent with law or Government-wide regulation. Therefore, it is within the duty to bargain. /3/ VI. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to be the parties) bargain concerning Union Alternative Proposal Number 2. Furthermore, IT IS ORDERED that the Union's petition for review as to Union Alternative Proposals 1 and 3 be, and it hereby is, dismissed. Issued, Washington, D.C., July 10, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The "primary interest test" refers to the Comptroller General's decision, 46 Comp. Gen. 21 (1966), interpreting the provisions of the Travel Expense Act, 5 U.S.C. Sections 5701, et seq., that an agency is not precluded from making payment of travel expenses and per diem allowances to union representatives upon a determination it serves the convenience of the agency or is otherwise in the primary interest of the Government. For a complete discussion of the negotiability of the payment of travel and per diem expenses, see the Authority's lead decision, 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. March 27, 1986). ORDER DENYING REQUEST FOR RECONSIDERATION The case is before the Authority on a request for reconsideration filed by the Union on May 13, 1986, seeking reconsideration of the Authority's Order of April 30, 1986, dismissing the Union's exceptions (21 FLRA No. 75 (1986)). For the reasons set forth below, the Union's request must be denied. The Authority dismissed the Union's exceptions to the arbitrator's award on the basis that the exceptions were untimely. The Authority found that the arbitrator's award was dated March 18, 1986, and pursuant to section 7122(b) of the Statute, as amended, /1/ and section 2425.1 of the Authority's Rules and Regulations, as amended, /2/ which amendments are applicable to exceptions filed on or after March 2, 1984, and under sections 2429.21 and 2429.22 of the Authority's Rules and Regulations, which are also applicable to computation of time limit here involved, the exceptions had to be filed in the National Office of the Authority not later than the close of business on April 21, 1986. However, the exceptions were not filed with the Authority at its National Office until April 22, 1986. The Union had mailed the exceptions on April 14, 1986, to the Authority's San Francisco Regional Office. The San Francisco Regional Office received the exceptions on April 17, 1986, and forwarded them on April 18, 1986. However, they were not received by the Authority's National Office until April 22, 1986. Therefore, the exceptions were untimely filed. In its request for reconsideration, the Union contends that it spoke with two attorneys in the Authority's San Francisco Regional Office concerning the procedures for filing exceptions to an arbitration award and that during these conversations, the attorneys failed to inform the Union that it must file its exceptions with the National Office of the Authority. In addition, the Union argues that it "is totally unfair to dismiss this case on such a minor technicality." Section 2429.17 of the Authority's Rules and Regulations, effective September 10, 1981, provides in pertinent part: 2429.17 Reconsideration. After a final decision or order of the Authority has been issued, a party to the proceeding before the Authority who can establish in its moving papers extraordinary circumstances for so doing, may move for reconsideration of such final decision or order. The motion shall be filed within 10 days after service of the Authority's decision or order. . . . The Union's argument does not demonstrate the existence of extraordinary circumstances within the meaning of section 2429.17 of the Authority's Rules and Regulations. Under sections 2429.21 and 2429.24 of the Rules and Regulations, when a document is required to be filed with the Authority, the document must be received in the National Office of the Authority before the close of business on the last day of the prescribed time limit. See Bremerton Metal Trades Council, United Association, Local 631 and Puget Sound Naval Shipyard, 9 FLRA 1094 (1982); request for reconsideration denied June 24, 1982. While the Union did mail the exceptions on April 14, 1986, presumably in sufficient time to be timely received if properly addressed, exceptions to an abritrator's award cannot be filed at a Regional Office. Since the inception of the Authority in 1979, applicable regulations have required that exceptions to arbitration awards filed with the Authority be filed at the National Office. See The Panama Canal Commission anda Maritime Metal Trades Council, AFL-CIO, 21 FLRA No. 38, n.5 (1986); request for reconsideration denied April 16, 1986. Accordingly, since the Union has failed to establish the existence of extraordinary circumstances warranting reconsideration of the Authority's decision, the Union's Request is hereby denied. For the Authority. Issued, Washington, D.C., July 9, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Section 7122(b) of the Statute was amended by the Civil Service Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Section 4, 98 Stat. 47, 48 (1984) to provide that the 30-day period for filing exceptions to an arbitrator's award begins on the date the award is served on the filing party. (2) 49 Fed. Reg. 22623 (1984). ORDER DENYING MOTION FOR RECONSIDERATION This case is before the Authority on a motion for reconsideration filed by the American Federation of Government Employees on March 6, 1986, seeking reconsideration of the Authority's Decision and Order of February 24, 1986, in the above-entitled matter. In that case, the Authority held that the Union's petition for review was untimely filed and dismissed the petition. A petition for review must be filed within 15 days from the date of service on the Union of an Agency allegation of nonnegotiability. Under established precedent, the Authority found that the parties' Memorandum of Understanding (MOU) of June 25, 1985, amounted to a written request by the Union for an allegation and a simultaneous written response by the Agency alleging the matter proposed to be nonnegotiable. Thus, under section 7117(c) of the Statute and section 2424.3 of the Authority's Rules and Regulations, the Authority determined that the petition for review had to be filed no later than the close of business on July 10, 1985, fifteen days after the June 25, 1985 Memorandum of Understanding. It was not filed until October 28, 1985. Although the Union contended that its letter to the Agency of October 3, 1985, constituted a different request for a negotiability determination on a "modified" proposal which was presented during subsequent negotiations, such a contention, the Authority held, could not be sustained because the record clearly indicated that the proposal set forth in the October 3, 1985, request was merely a restatement of the original proposal which the Agency had declared nonnegotiable in the June 25, 1985, Memorandum of Understanding. In support of its motion for reconsideration, the Union argues that the Authority misinterpreted the parties' Memorandum of Understanding as a simultaneous Union request for an allegation and Agency response alleging the proposed matter nonnegotiable and that the proper course for the Authority was to have the matter submitted by the parties to arbitration for resolution. Section 2429.17 of the Authority's Rules and Regulations provides, in part, that a party "who can establish . . . extraordinary circumstances . . . may move for reconsideration" of a decision of the Authority. The Authority concludes that the Union has not met this requirement. The arguments made in support of the motion for reconsideration simply state the Union's disagreement with the Authority's determination that the parties' MOU amounted to a written request by the Union for an allegation and a simultaneous written response by the Agency alleging the matter proposed to be nonnegotiable and that the petition was untimely because it was not filed within 15 days of the date of the MOU as required by the Authority's Rules and Regulations. Consequently, the Authority concludes that the Union has failed to establish the existence of extraordinary circumstances. Accordingly, IT IS ORDERED that the motion for reconsideration be, and it hereby is, denied. Issued, Washington, D.C., July 9, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member DECISION AND ORDER ON MOTION FOR RECONSIDERATION I. Statement of the Case This matter is before the Authority based on the Respondent's Motion for Reconsideration in the above-cited case, filed in accordance with section 2429.17 of the Authority's Rules and Regulations. /*/ The Respondent also requested a stay of the Authority's decision. An opposition to the motion was filed by the General Counsel. II. Background On April 21, 1986, the Authority issued its decision in Immigration and Naturalization Service, 21 FLRA No. 47, in which it was determined that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally discontinuing the issuance of blackjacks to detention officers without first notifying the Charging Party and affording it an opportunity to bargain over the procedures to be observed in implementing such change as well as on appropriate arrangements for employees adversely affected by such change. To remedy the unfair labor practice, the Authority ordered the Respondent, in part, to restore the practice of issuing blackjacks. III. The Motion for Reconsideration The Respondent bases its motion for reconsideration on four points: (1) the Authority relied on a fact which was not found by the Administrative Law Judge; (2) the failure of the Charging Party to submit impact and implementation proposals, as so requested by the Respondent following issuance of the Judge's remedial order has caused the Charging Party to forfeit a status quo ante remedy; (3) the Authority acted inconsistently in refusing to consider the propriety of issuing blackjacks to detention officers; and (4) the Authority improperly failed to consider the effect of a subsequently negotiated agreement on the status quo ante remedy. The General Counsel argues that the Respondent's motion fails to establish extraordinary circumstances warranting reconsideration. As to the first point because the Authority's findings are well established by the record; as to the second point because it would have been premature for the Charging Party to have submitted proposals; and, as to the remaining points because they raise nothing not already considered by the Authority. IV. Analysis on Reconsideration In agreement with the General Counsel, the Authority finds that no extraordinary circumstances have been established which warrant reconsideration of the Authority's decision. More particularly with regard to the Respondent's assertion that the Authority relied on a fact not found by the Judge, the Authority, as a matter of course, relies on the entire record before it in exercising its statutory authority to resolve allegations of unfair labor practices. In this case, there was uncontroverted record testimony that detention officers retained possession of their previously issued blackjacks. It was upon such record evidence that the Authority relied in making its statement; we did not attribute that statement to the Judge, nor did we make any finding with regard to the continued use of blackjacks. The Respondent next argues that the failure of the Charging Party to submit impact and implementation proposals after the Judge so ordered as a part of his recommended remedial order essentially constituted a waiver or forfeiture of any right to a status quo ante remedy. In its decision, the Authority found that the Respondent had failed to fulfil its statutory obligation of notifying the Charging Party and affording it an opportunity to bargain with respect to the change in the practice of issuing blackjacks. The status quo ante remedy was warranted based on this unlawful conduct. The Authority does not view the Respondent's solicitation of bargaining proposals after the Judge issued his decision, and while the Authority had exceptions to his decision before it, as a basis on which to conclude that a party has forfeited its right to a status quo ante remedy or that such a remedy is not warranted in this case. Rather, the Respondent is obligated to comply with the Authority's decision and its remedial order. The Respondent in its third point asserts that the Authority's failure to address the propriety of the blackjack practice somehow should preclude it from granting a status quo ante remedy. On the contrary, the Authority was simply making the point that it would not pass judgment on or decide whether blackjacks should have been issued in the first place. However, the Authority did in fact consider the effect of such a remedy on the effectiveness and efficiency of the Respondent's operations. Thus, the Authority found that there was no evidence presented to indicate that reinstatement of the pre-existing practice would be disruptive of such operation. Additionally, the Respondent is now attempting to reintroduce the terms of a settlement agreement rendered in a separate proceeding. This matter, which the Respondent sought to introduce at an earlier stage of this unfair labor practice proceeding was not permitted in evidence by the Judge. Such ruling was not excepted to by the Respondent in accordance with the Authority's Rules and Regulations, and was affirmed by the Authority. The Respondent's present attempt to argue the applicability of the settlement agreement to the facts of this case is therefore not appropriate. Finally, the Respondent asserts that the Authority should have considered the effect of a subsequently negotiated agreement on the status quo ante remedy. The Judge had rejected the Respondent's attempts to introduce evidence concerning such negotiations subsequent to the hearing in this matter. Again, no exception to that ruling, which was adopted by the Authority, was filed by the Respondent, and its attempt to attack that ruling by this motion is not appropriate. V. Conclusion After carefully considering the Respondent's Motion for Reconsideration and accompanying stay request, we find that no extraordinary circumstances have been established under section 2429.17 of the Authority's Rules and Regulations warranting a reconsideration of the Authority's Decision and Order. Accordingly, we shall order that the motion be denied. ORDER IT IS ORDERED that the Motion for Reconsideration, including its accompanying request for a stay, of the Authority's Decision and Order in Immigration and Naturalization Service, 21 FLRA No. 47 (1986) be, and it hereby is, denied.