[ 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.
Issued, Washington, D.C., July 9, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) 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 an
Authority decision.