United States Customs Service (Respondent) and National Treasury Employees Union (Charging Party) and Office of Personnel Management (Intervenor)

 7 FLRA No. 68
 
 UNITED STATES CUSTOMS SERVICE
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT
 Intervenor
 
                                            Case Nos. 3-CA-261
                                                      3-CA-1230
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
 SECTION 2429.1 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2429.1(A)).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THESE CASES, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND BRIEFS
 SUBMITTED BY THE RESPONDENT, THE GENERAL COUNSEL AND THE INTERVENOR, THE
 AUTHORITY FINDS:
 
    THE COMPLAINTS HEREIN ALLEGE THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE) ON JANUARY 11, 1979, AND CONTINUING
 THEREAFTER, BY REFUSING TO REIMBURSE EMPLOYEES SERVING AS UNION
 NEGOTIATORS FOR TRAVEL AND PER DIEM EXPENSES INCURRED ON OFFICIAL TIME
 IN REGARD TO COLLECTIVE BARGAINING NEGOTIATIONS ENGAGED IN BY THE
 PARTIES OVER A NATIONWIDE MASTER AGREEMENT.  /1/
 
    THE RESPONDENT ADMITS IT HAS REFUSED TO PAY TRAVEL AND PER DIEM
 EXPENSES TO EMPLOYEES SERVING AS UNION NEGOTIATORS, IN VIOLATION OF
 ESTABLISHED PRECEDENT.  /2/ HOWEVER, THE RESPONDENT URGES THAT SUCH
 PRECEDENT BE REVERSED.  THE RESPONDENT'S POSITION IS THAT THERE IS NO
 BASIS IN THE STATUTE, ITS LEGISLATIVE HISTORY, OR IN PRECEDENT
 ESTABLISHED UNDER EXECUTIVE ORDERS 10988 AND 11491 TO SUPPORT A DECISION
 THAT IT MUST PAY TRAVEL AND PER DIEM EXPENSES.  THE RESPONDENT ARGUES
 THAT TO PAY SUCH MONIES WOULD BE IN VIOLATION OF LAW AND OF POLICY
 LIMITATIONS ON ITS APPROPRIATION.  /3/ THE INTERVENOR ESSENTIALLY ARGUES
 IN SUPPORT OF THE RESPONDENT'S POSITION THAT THE AUTHORITY'S
 INTERPRETATION OF THE STATUTE IN INTERPRETATION AND GUIDANCE, SUPRA, WAS
 INCORRECT AND SHOULD BE REVERSED.
 
    THE PARTIES' STIPULATION REVEALS THAT THEY HAVE BEEN NEGOTIATING A
 NATIONWIDE MASTER AGREEMENT SINCE NOVEMBER OF 1978.  SINCE ON OR ABOUT
 JANUARY 11, 1979, THE EMPLOYEES OF THE RESPONDENT ACTING AS MEMBERS OF
 THE UNION NEGOTIATING TEAM HAVE BEEN GRANTED OFFICIAL TIME DURING THE
 TIME THEY WERE ENGAGED IN NEGOTIATING THE NATIONWIDE AGREEMENT.
 HOWEVER, THEY HAVE BEEN REFUSED PAYMENT FOR TRAVEL AND PER DIEM EXPENSES
 INCURRED DURING THE TIME PERIOD IN WHICH THEY WERE GRANTED OFFICIAL
 TIME.
 
    THE AUTHORITY HAS CONSIDERED THE RESPONDENT'S ARGUMENTS, ESSENTIALLY
 BASED ON THE RESPONDENT'S READING OF THE LEGISLATIVE HISTORY, THAT
 ESTABLISHED PRECEDENT (NOTE 2, SUPRA) BE REVERSED.  HOWEVER, NO BASIS
 HAS BEEN ADVANCED TO DEMONSTRATE THAT THE ESTABLISHED PRECEDENT IS
 INCORRECT, NOR HAS THE RESPONDENT RAISED ARGUMENTS NOT PREVIOUSLY
 CONSIDERED.  THUS, THE AUTHORITY CONCLUDED IN THE INTERPRETATION AND
 GUIDANCE AND SUBSEQUENT CASES, BASED ON AN ANALYSIS OF THE STATUTE AND
 THE LEGISLATIVE HISTORY OF SECTION 7131, THAT ANY EMPLOYEE WHO IS ON
 OFFICIAL TIME UNDER SECTION 7131 WHILE REPRESENTING AN EXCLUSIVE
 REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT
 IS ENTITLED TO PAYMENT FROM AGENCIES FOR TRAVEL AND PER DIEM EXPENSES.
 THEREFORE, THE AUTHORITY FINDS THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (8) WHEN IT DENIED PAYMENT OF PER DIEM AND TRAVEL
 EXPENSES TO EMPLOYEES ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
 STATUTE WHILE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
 NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT.  /4/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE UNITED STATES CUSTOMS SERVICE SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
 TRAVEL AND PER DIEM EXPENSES INCURRED BY ITS EMPLOYEES AS A RESULT OF
 THEIR PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
 STATUTE AS DULY DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY
 EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED
 NATIONWIDE MASTER AGREEMENT NEGOTIATIONS.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) PROVIDE PAYMENT TO ANY OF ITS EMPLOYEES WHO SUBMIT A PROPERLY
 DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS A RESULT
 OF PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE
 AS THE DULY DESIGNATED REPRESENTATIVE OF THE NATIONAL TREASURY EMPLOYEES
 UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN THE NEGOTIATION OF
 THE PARTIES' NATIONWIDE MASTER AGREEMENT.
 
    (B) POST AT ITS FACILITIES NATIONWIDE 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 COMMISSIONER OF
 CUSTOMS AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE
 DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS
 AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE
 COMMISSIONER SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID NOTICES ARE
 NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, FEDERAL LABOR
 RELATIONS AUTHORITY, IN WRITING, 30 DAYS FROM THE DATE OF THIS ORDER, AS
 TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 29, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
                          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 FAIL OR REFUSE TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
 TRAVEL AND PER DIEM EXPENSES INCURRED BY OUR EMPLOYEES AS A RESULT OF
 THEIR PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
 STATUTE AS DULY DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY
 EMPLOYEES UNION, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED
 NEGOTIATIONS OVER THE NATIONWIDE MASTER AGREEMENT.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS AS ASSURED BY
 THE STATUTE.
 
    WE WILL PROVIDE PAYMENT TO ANY OF OUR EMPLOYEES WHO SUBMIT A PROPERLY
 DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS THE
 RESULT OF PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
 STATUTE AS THE DULY DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY
 EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, IN THE
 NEGOTIATION OF THE NATIONWIDE MASTER AGREEMENT.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:
 
                                   BY:
 
                            (SIGNATURE) (TITLE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF THIS 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, FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE ADDRESS
 IS 1111 18TH STREET, NW., WASHINGTON, D.C., 20036 AND WHOSE TELEPHONE
 NUMBER IS (202) 653-8452.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE COMPLAINTS ALLEGE ESSENTIALLY IDENTICAL CONDUCT.
 
    /2/ INTERPRETATION AND GUIDANCE, 2 FLRA 264(1979).  SUBSEQUENTLY, THE
 AUTHORITY ISSUED BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN
 REGION, DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA
 NO. 40(1980), APPEAL DOCKETED, NO. 80-7673 (9TH CIR. NOV. 28, 1980) AND
 U.S. DEPARTMENT OF AGRICULTURE, SCIENCE AND EDUCATION ADMINISTRATION,
 AGRICULTURAL RESEARCH, NORTH CENTRAL REGION, DAKOTAS-ALASKA AREA, 6 FLRA
 NO. 45(1981), APPEAL DOCKETED, NO. 81-1948 (8TH CIR. SEPT. 4, 1981).
 SEE ALSO, FLORIDA NATIONAL GUARD, 5 FLRA NO.  49(1981), APPEAL DOCKETED,
 NO. 81-5466 (5TH CIR. MAY 18, 1981).
 
    /3/ THE RESPONDENT ALSO ARGUES THAT INTERPRETATION AND GUIDANCE,
 SUPRA, HAS NO FORCE AND EFFECT AS THE "ISSUANCE OF THE SUBJECT POLICY
 STATEMENT WAS AN ABUSE OF DISCRETION BY THE AUTHORITY . . . ." WITHOUT
 PASSING ON THE MERITS OF THIS ARGUMENT, THE AUTHORITY NOTES THAT THE
 ISSUE HAS BEEN DECIDED IN SUBSEQUENT UNFAIR LABOR PRACTICE CASES (SEE
 NOT 2, SUPRA), THUS RENDERING THE ARGUMENT MOOT.
 
    /4/ BASED ON THE ABOVE OUTCOME, WHICH FULLY REMEDIES THE VIOLATION
 FOUND HEREIN, THE AUTHORITY FINDS IT UNNECESSARY TO DECIDE WHETHER SUCH
 CONDUCT ALSO VIOLATED SECTION 7116(A)(5).