U.S. Department of Labor (Respondent) and National Union of Compliance Officers, Independent (Complainant) 

 



[ v01 p933 ]
01:0933(107)MS
The decision of the Authority follows:


 1 FLRA No. 107
 
 U.S. DEPARTMENT OF LABOR
 Respondent
 
 and
 
 NATIONAL UNION OF COMPLIANCE
 OFFICERS, INDEPENDENT
 Complainant
 
                                            CSC Case No. 100
 
                            DECISION AND ORDER
 
    ON FEBRUARY 9, 1979, ADMINISTRATIVE LAW JUDGE JOHN J. MCCARTHY ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
 BE DISMISSED IN ITS ENTIRETY.  NO EXCEPTIONS WERE FILED TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    SINCE THIS CASE INVOLVES THE U.S. DEPARTMENT OF LABOR AS A PARTY, IT
 WAS INITIATED AND PROCESSED PURSUANT TO SECTION 6(E) OF EXECUTIVE ORDER
 11491, AS AMENDED, AND WAS PENDING BEFORE THE VICE CHAIRMAN OF THE U.S.
 CIVIL SERVICE COMMISSION THEREUNDER ON DECEMBER 31, 1978.  ON THAT DATE,
 THE FUNCTIONS OF THE VICE CHAIRMAN UNDER E.O. 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040 , WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
 AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE
 HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
 CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS, AND RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CSC CASE NO. 100 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 13, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                   FEDERAL LABOR RELATIONS AUTHORITY /2/
 
    MR. LEONARD P. ENGRISSEI
 
    1618 N.E. 75TH
 
    SEATTLE, WASHINGTON, 98115
 
                            FOR THE COMPLAINANT
 
    DAVID P. CALLET, ESQUIRE
 
    OFFICE OF THE SOLICITOR
 
    U.S. DEPARTMENT OF LABOR
 
    WASHINGTON, D.C.  20210
 
                            FOR THE RESPONDENT
 
    BEFORE:  JOHN J. MCCARTHY
 
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS PROCEEDING ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED (THE
 ORDER).  THE NATIONAL UNION OF COMPLIANCE OFFICERS (NUCO), AS
 COMPLAINANT, ALLEGES THAT THE LABOR-MANAGEMENT SERVICES ADMINISTRATION
 (LMSA) OF THE DEPARTMENT OF LABOR (DOL) COMMITTED UNFAIR LABOR PRACTICES
 VIOLATIVE OF SECTION 19(A)(1), (2), AND (6) OF THE ORDER.  BECAUSE DOL
 IS A PARTY, THIS PROCEEDING HAS BEEN HELD BEFORE THEU.S. CIVIL SERVICE
 COMMISSION PURSUANT (LINE(S) OF SOURCE CUT OFF BY COPY MACHINE) RECORD
 AND MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
 FOLLOWING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    PORTIA IGARASHI BEGAN WORKING AS A COMPLIANCE OFFICER FOR LMSA IN
 SEPTEMBER OF 1975.  SHE WAS ASSIGNED TO THE PORTLAND, OREGON, SUB-OFFICE
 OF THE SEATTLE, WASHINGTON AREA OFFICE.  AT ALL TIMES RELEVANT TO THIS
 CASE, NUCO WAS THE EXCLUSIVE REPRESENTATIVE OF ALL LMSA FIELD EMPLOYEES.
 
    IN MAY OF 1977, JOHN LEMAY, LMSA'S SEATTLE AREA ADMINISTRATOR, AND
 GORDON BYRHOLDT, LMSA'S REGIONAL ADMINISTRATOR FOR THE SAN FRANCISCO
 REGION, DETERMINED THAT IGARASHI SHOULD BE ASSIGNED FOR AN EXTENDED
 PERIOD TO THE SEATTLE OFFICE.  THE SOLE REASON FOR THE TRANSFER WAS
 IGARSHI'S LACK OF PROGRESS IN PORTLAND.  THIS WAS BELIEVED TO BE DUE TO
 THE FACT THAT SHE WAS THE ONLY COMPLIANCE OFFICER WORKING ON CASES UNDER
 THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 (ERISA) AND WAS
 THEREFORE DENIED THE BENEFIT OF LEARNING FROM HER PEERS.  RECOGNIZING
 THAT THERE WERE MORE COMPLIANCE OFFICERS WORKING ON ERISA IN SEATTLE,
 IGARASHI AGREED TO THE TRANSFER AS A MEANS OF GAINING SOME ON-THE-JOB
 TRAINING.
 
    IGARASHI'S REASSIGNMENT RAISED THE QUESTION OF WHAT AMOUNT OF MONEY
 SHE WOULD RECEIVE FOR SUBSISTENCE.  LEMAY WAS TOLD BY HIS SUPERIORS TO
 NEGOTIATE THE AMOUNT WITH IGARASHI.  PURSUANT TO LEMAY'S REQUEST,
 IGARASHI LOOKED AT APARTMENTS IN SEATTLE ON JUNE 21 AND 22, 1977.  BASED
 ON THE RESULTS OF HER APARTMENT SEARCH, SHE PROPOSED AN ALLOWANCE OF
 EITHER $26 OR $28 PER DIEM.  /3/ LEMAY, HAVING ALREADY RECEIVED A
 SUGGESTION OF $13 OR $14 FROM A REGIONAL ADMINISTRATIVE OFFICER, ROBERT
 KOENIG, INFORMED IGARASHI THAT HER FIGURE WAS FAR HIGHER THAN LMSA
 EXPECTED.  LEMAY THEN DISCUSSED THE MATTER WITH GORDON BYRHOLDT.
 BYRHOLDT SUGGESTED A COMPROMISE FIGURE OF $20.  IN DOING SO, HE RELIED
 ON THE PRIOR CASE OF LMSA EMPLOYEE ERNEST SHIMADA.  SHIMADA HAD RECEIVED
 $20 PER DIEM WHEN TEMPORARILY TRANSFERRED FROM HONOLULU TO SAN FRANCISCO
 UNDER CIRCUMSTANCES SIMILAR TO IGARASHI'S.  RELUCTANTLY, IGARASHI
 ACCEPTED THE $20 FIGURE, AND SHE BEGAN HER SIX MONTH ASSIGNMENT ON JULY
 25, 1977.  NUCO WAS NEVER REPRESENTED IN, NOR GIVEN PRIOR NOTICE OF,
 THESE NEGOTIATIONS BETWEEN MANAGEMENT AND IGARASHI.  /4/
 
                                CONCLUSIONS
 
    NUCO'S COMPLAINT IS THAT LMSA COMMITTED AN UNFAIR LABOR PRACTICE
 VIOLATIVE OF SUBSECTIONS (1), (2), AND (6) OF SECTION 19 OF THE ORDER,
 WHEN MR. LEMAY--
 
    BY-PASSED AND DEROGATED THE EXCLUSIVE BARGAINING REPRESENTATIVE
 (NUCO) BY NEGOTIATING A
 
    CHANGE IN WORKING CONDITIONS DIRECTLY WITH A MEMBER OF THE UNIT,
 WITHOUT AFFORDING NUCO ANY
 
    PRIOR NOTICE OR OPPORTUNITY FOR BARGAINING IN GOOD FAITH.
 
    COMPLAINT, ITEM 3
 
    NUCO ALSO ARGUES THAT IN UNILATERALLY SETTING A RATE OF PER DIEM WITH
 THE EMPLOYEE, THE ACTIVITY BREACHED THE TERMS OF THE COLLECTIVE
 BARGAINING AGREEMENT (CBA) WITH NUCO RELATING TO PER DIEM AND EFFECTED A
 CHANGE IN THE CONDITIONS OF WORK WITHOUT PRIOR CONSULTATION.
 
    RESPONDENT ANSWERS THAT NO VIOLATION OF THE ORDER OCCURRED BECAUSE
 (1) THE MATTER DISCUSSED WITH THE EMPLOYEE WAS GOVERNED BY MANDATORY
 TRAVEL REGULATIONS AND THEREFORE EXEMPTED BY SECTION 12(A) FROM THE
 OBLIGATION TO CONSULT, CONFER OR NEGOTIATE, AND (2) EVEN IF THE TRAVEL
 REGULATIONS WERE NOT CONTROLLING, THE DISCUSSIONS WITH THE EMPLOYEE WERE
 NOT FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION 10(E) AND THEREFORE
 DID NOT OBLIGATE MANAGEMENT TO AFFORD NUCO THE OPPORTUNITY TO BE
 REPRESENTED.  (LINE(S) CUT OFF OF SOURCE BY COPY MACHINE)
 
    PER DIEM RATE TO BE PAID TO THE EMPLOYEE IN THIS INSTANCE DID NOT
 INVOLVE A MATTER AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN
 THE UNIT WITHIN THE MEANING OF SECTIONS 10(E) AND 12(D) OF THE ORDER.  I
 FURTHER FIND THAT THE ALLEGED BREACH OF THE COLLECTIVE BARGAINING
 AGREEMENT RELATING TO THE NORMAL ALLOWANCE FOR SUBSISTENCE WAS A
 QUESTION WHICH INVOLVED DIFFERING AND ARGUABLE INTERPRETATIONS OF THE
 AGREEMENT.  FOR THESE REASONS, IT MUST BE HELD THAT THE ACTIVITY DID NOT
 VIOLATE SECTION 19(A)(6) OR 19(A)(2) OF THE ORDER IN FAILING TO AFFORD
 NUCO PRIOR NOTICE OF THE DISCUSSION WITH MS. IGARASHI AND AN OPPORTUNITY
 TO NEGOTIATE THE PER DIEM RATE.
 
    THE MATTER WHICH GAVE RISE TO THE COMPLAINT DID NOT INVOLVE A
 UNILATERAL ACTION BY MANAGEMENT TO CHANGE CONDITIONS OF EMPLOYMENT
 AFFECTING EMPLOYEES IN THE UNIT.  AT THE TIME THE DISCUSSIONS BETWEEN
 LEMAY AND IGARASHI TOOK PLACE, THE FEDERAL TRAVEL REGULATIONS AND THE
 DEPARTMENT'S TRAVEL REGULATIONS (DEPARTMENT OF LABOR MANUAL SERIES,
 SECTION 7.180 ET SEQ.  (1977)) CONSTITUTED AN EXISTING CONDITION OF
 EMPLOYMENT INSOFAR AS THE REGULATIONS AFFECTED THE PER DIEM RATE TO BE
 PAID FOR "TRAVEL ASSIGNMENTS INVOLVING DUTY FOR EXTENDED PERIODS AT
 TEMPORARY DUTY STATIONS." FEDERAL TRAVEL REGULATIONS-- FPMR 101-7
 (1973), PARA. 1-7.3D PAGE 1-20.  THE DEPARTMENT'S OWN REGULATIONS, IN
 TURN, PROVIDED IN PART:
 
    EMPLOYEE (ON LONG-TERM TRAINING ASSIGNMENT) AND SUPERVISOR SHOULD
 DEVELOP A MUTUALLY
 
    ACCEPTABLE BUDGET OF EXPENSES FOR THE TRAINING . . .
 
    GENERAL TRAVEL REGULATIONS, DLMS, PARA. 7-181
 
    THE CONTROVERSY BETWEEN THE PARTIES DID NOT CONCERN A MANAGEMENT
 PROPOSAL TO CHANGE THE TRAVEL REGULATIONS;  HENCE, TO THE EXTENT THAT
 NUCO CLAIMS THAT A CHANGE IN WORKING CONDITIONS WAS NEGOTIATED DIRECTLY
 WITH THE EMPLOYEE, THE COMPLAINT DOES NOT INVOLVE A CHANGE IN THE
 REGULATIONS.  RATHER, THE COMPLAINT IS BASED ON THE CONTENTION THAT NUCO
 HAD THE RIGHT AS A UNION-- APART FROM ANY RIGHTS OF THE EMPLOYEE AS AN
 INDIVIDUAL OR AS A UNION MEMBER-- TO RECEIVE PRIOR NOTICE OF
 MANAGEMENT'S INTENTION TO DISCUSS THE PER DIEM RATE WITH THE EMPLOYEE
 AND TO NEGOTIATE THE GENERAL QUESTION OF WHETHER THE REGULATIONS WHICH
 PROVIDE FOR A REDUCTION IN THE NORMAL PER DIEM RATE WERE APPLICABLE IN
 MS. IGARASHI'S CASE AND IN SIMILAR CASES IN THE FUTURE.
 
    THE RATE OF PER DIEM NEGOTIATED BETWEEN MS. IGARASHI AND THE ACTIVITY
 AFFECTED ONLY MS. IGARASHI AND APPLIED ONLY TO HER TEMPORARY ASSIGNMENT
 TO THE SEATTLE AREA OFFICE.  THE RATE WAS NOT APPLICABLE TO OTHER
 SIMILAR ASSIGNMENTS, FOR EACH ASSIGNMENT OF THAT NATURE IN THE FUTURE
 WOULD BE SUBJECT TO INDIVIDUAL NEGOTIATION AND NOT CONTROLLED BY THE
 AMOUNT AGREED TO IN MS. IGARASHI'S CASE.  ACCORDINGLY, SINCE THE
 IGARASHI CASE WAS NOT A BINDING- PRECEDENT, IT DID NOT IMPINGE ON THE
 "WORKING CONDITIONS" OF OTHER EMPLOYEES IN THE UNIT.
 
    LMSA MANAGEMENT CONSISTENTLY TESTIFIED THAT THERE WAS NO INTENT TO
 AFFECT OTHER EMPLOYEES OR TO SET PRECEDENT WITH THE RATE DETERMINATION
 MADE IN THE IGARASHI CASE.  ON THE BASIS OF ITS EXPERIENCE IN THIS
 INSTANCE AND IN THE ONLY OTHER CASE INVOLVING A SIMILAR ASSIGNMENT, THE
 ACTIVITY HAS FOUND THE PROCEDURE TO BE INEFFICIENT AND HAS DECIDED TO
 ASSIGN NEW EMPLOYEES IN THE FUTURE TO LARGE OFFICES, THEREBY OBVIATING
 THE NEED FOR LATER, TEMPORARY TRANSFERS OF THE KIND INVOLVED HEREIN.
 MANAGEMENT'S EVIDENCE ON THIS MATTER IS NOT SIMPLY SELF-SERVING AND CAN
 BE ACCEPTED AS BEING PRESENTED IN GOOD FAITH, FOR THE ACTIVITY WAS
 ALWAYS WILLING TO CHANGE IGARASHI'S PER DIEM WITH PROOF OF HARDSHIP.
 NUCO HAS NOT CONTRADICTED THIS TESTIMONY.
 
    MOREOVER, AS NOTED, PER DIEM IS BY ITS NATURE PECULIAR TO EACH CASE,
 DETERMINED ACCORDING TO SUCH CIRCUMSTANCES AS THE PARTICULAR SITE, THE
 TIME PERIOD, AND THE EMPLOYEE INVOLVED IN THE EXTENDED DUTY.  IN
 CONSIDERATION OF THE SEVERAL POINTS DISCUSSED, I CONCLUDE THAT THE
 ACTIVITY DID NOT NEGOTIATE A CHANGE IN WORKING CONDITIONS VIOLATIVE OF
 SECTION 19(A)(6) WHEN IT SET THE PER DIEM DIRECTLY WITH IGARASHI.  THE
 ARGUMENT PRESENTED BY NUCO TO THE EFFECT THAT THE PER DIEM WAS
 CONTROLLED BY THE CBA AND THAT THE RESPONDENT MISAPPLIED THE REGULATIONS
 RELATING TO EXTENDED PERIODS OF TRAINING DUTY DOES NOT ESTABLISH A
 VIOLATION OF THE ORDER.  THE BELIEF OF MANAGEMENT OFFICIALS THAT THE
 CONTRACT WAS NOT DETERMINATIVE WAS BOTH REASONABLE AND HELD IN FOOD
 FAITH.  SINCE THERE WAS NO CLEAR, UNILATERAL BREACH OF THE CONTRACT
 BETWEEN NUCO AND LMSA BUT RATHER REASONABLE AND CONFLICTING
 INTERPRETATION OF ITS PROVISIONS, NO VIOLATION OF SECTION 19(A) IS SHOWN
 BY MANAGEMENT'S FAILURE TO GIVE PRIOR NOTICE AND AN OPPORTUNITY TO
 CONFER REGARDING THE PER DIEM QUESTION.  WATERVLIET ARSENAL, U.S. ARMY
 ARMAMENT COMMAND, WATERVLIET, NEW YORK, A/SLMR 726(1976);  AEROSPACE
 GUIDANCE AND METEOROLOGY CENTER, NEWARK AIR FORCE STATION, NEWARK, OHIO,
 A/SLMR 677(1976).  (LINE(S) OF SOURCE CUT OFF BY COPY MACHINE)
 
    NEGOTIATION OF THE PER DIEM RATE BETWEEN EMPLOYEE AND SUPERVISOR,
 THEY DO NOT EXPRESSLY OR IMPLIEDLY EXCLUDE THE BARGAINING REPRESENTATIVE
 FROM PARTICIPATION.  IT DOES NOT NECESSARILY FOLLOW FROM THAT FACT,
 HOWEVER, THAT NUCO HAS A RIGHT TO RECEIVE PRIOR NOTICE OR TO NEGOTIATE
 THE MATTER INDEPENDENTLY ON BEHALF OF ALL EMPLOYEES IN THE UNIT.  ON THE
 CONTRARY, IT HAS BEEN FOUND THAT THE UNION DOES NOT HAVE SUCH A RIGHT
 UNDER THE ORDER BECAUSE THE EFFECT OF THE REGULATION WAS LIMITED TO THE
 INDIVIDUAL EMPLOYEE.  FLRC 75P-2, REPT. NO. 116 (1976).  MOREOVER, THE
 RECORD CONTAINS NO EVIDENCE TO SUPPORT A CONCLUSION THAT MANAGEMENT
 DISCRIMINATED AGAINST ANY EMPLOYEE BECAUSE OF UNION MEMBERSHIP OR
 ACTIVITY-- LMSA MANAGEMENT HONESTLY BELIEVED THAT THE UNION HAD NOTHING
 TO DO WITH PER DIEM NEGOTIATIONS.  IN SUCH CIRCUMSTANCES, THERE IS NO
 VIOLATION OF SECTION 19(A)(2).  SEE TENNESSEE VALLEY AUTHORITY, A/SLMR
 509
 
                              RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENT ACTIVITY AND RESPONDENT AGENCY HAVE NOT
 ENGAGED IN CERTAIN CONDUCT PROHIBITED BY SECTION 19(A)(1), (2) AND (6)
 OF EXECUTIVE ORDER 11491, AS AMENDED, I RECOMMEND THAT THE COMPLAINT
 HEREIN BE DISMISSED IN ITS ENTIRETY.
 
                             JOHN J. MCCARTHY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  FEBRUARY 9, 1979
 
    WASHINGTON, D.C.
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
 CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
 STATES SENATE AS A MEMBER OF THE AUTHORITY.
 
    /3/ THERE IS A DISPUTE AS TO WHICH AMOUNT IGARASHI PROPOSED, BUT IT
 IS IRRELEVANT TO THE OUTCOME OF THIS CASE.
 
    /4/ IN VIEW OF THE LEGAL CONCLUSIONS SET FORTH, INFRA, SUBSEQUENT
 EVENTS INVOLVING THE ASSERTION OF RIGHTS ON BEHALF OF NUCO AND THE
 FILING OF A GRIEVANCE BY A SHOP STEWARD ARE DEEMED IRRELEVANT AND WILL
 NOT BE SET OUT IN THIS DECISION.