22:0486(50)NG - NLRBU and NLRB, The Board and Office of the General Counsel -- 1986 FLRAdec NG



[ v22 p486 ]
22:0486(50)NG
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.