08:0715(124)CA - Nuclear Regulatory Commission and NTEU -- 1982 FLRAdec CA

 8 FLRA No. 124
 
 NUCLEAR REGULATORY COMMISSION
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 3-CA-1076
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS (5 CFR 2429.1(A)).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
 INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND
 BRIEFS SUBMITTED BY THE RESPONDENT, THE CHARGING PARTY AND THE GENERAL
 COUNSEL, THE AUTHORITY FINDS:
 
    SINCE ON OR ABOUT JANUARY 14, 1980, AND AT ALL TIMES MATERIAL HEREIN,
 THE RESPONDENT HAS FAILED AND REFUSED TO REIMBURSE UNION NEGOTIATORS,
 WHO HAD BEEN AUTHORIZED OFFICIAL TIME, FOR TRAVEL AND PER DIEM EXPENSES
 INCURRED IN REGARD TO COLLECTIVE BARGAINING NEGOTIATIONS.  THE
 RESPONDENT'S REFUSAL TO MAKE SUCH PAYMENT IS BASED UPON GROUND RULES
 BETWEEN THE PARTIES EXECUTED ON AUGUST 3, 1979.  THE GENERAL COUNSEL
 ISSUED A COMPLAINT ALLEGING A VIOLATION OF SECTIONS 7116(A)(1), (5) AND
 (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
 STATUTE) BASED UPON THE RESPONDENT'S CONCEDED REFUSAL TO REIMBURSE UNION
 NEGOTIATORS FOR SUCH EXPENSES.
 
    THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS FOLLOWS:
 ON AUGUST 3, 1979, THE RESPONDENT AND THE UNION EXECUTED A DOCUMENT
 ENTITLED "GROUND RULES FOR CONTRACT NEGOTIATIONS BETWEEN THE NATIONAL
 TREASURY EMPLOYEES UNION AND THE NUCLEAR REGULATORY COMMISSION," AS THE
 BASIS FOR CONDUCTING NEGOTIATIONS CONCERNING THE PARTIES' FIRST
 COLLECTIVE BARGAINING AGREEMENT.  ITEM 3B OF THE GROUND RULES PROVIDES
 THAT "(N)O PER DIEM OR TRAVEL EXPENSES WILL BE PAID BY THE EMPLOYER TO
 MEMBERS OF THE UNION TEAM." PREVIOUSLY, ON JULY 20, 1979, THE AUTHORITY
 HAD PUBLISHED A NOTICE RELATING TO OFFICIAL TIME, 44 FED.REG.
 42,778(1979), ANNOUNCING THAT AN INTERPRETATION OF THE STATUTE WAS
 WARRANTED ON THE ISSUE OF WHETHER EMPLOYEES ON OFFICIAL TIME UNDER
 SECTION 7131 OF THE STATUTE WHILE REPRESENTING AN EXCLUSIVE
 REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT
 ARE ENTITLED TO PAYMENT FROM AGENCIES FOR THEIR TRAVEL AND PER DIEM
 EXPENSES, AND INVITED COMMENTS THEREON.  ON DECEMBER 19, 1979, THE
 AUTHORITY ISSUED AN INTERPRETATION AND GUIDANCE, 2 FLRA 264, PROVIDING,
 IN PART, THAT EMPLOYEES WHO ARE ON OFFICIAL TIME UNDER SECTION 7131
 WHILE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF A
 COLLECTIVE BARGAINING AGREEMENT ARE ENTITLED TO PAYMENT FROM AGENCIES
 FOR THEIR DUTY-TIME TRAVEL AND PER DIEM EXPENSES.
 
    ON OR ABOUT JANUARY 14, 1980, THE RESPONDENT AND THE UNION CONDUCTED
 THEIR FIRST COMPREHENSIVE CONTRACT NEGOTIATION SESSION;  THE UNION
 ORALLY ASSERTED THAT ITS NEGOTIATING TEAM WAS ENTITLED TO PAYMENT FOR
 TRAVEL AND PER DIEM EXPENSES PURSUANT TO THE AUTHORITY'S INTERPRETATION
 AND GUIDANCE REFERRED TO ABOVE, BUT THE RESPONDENT REFUSED TO CONSIDER
 SUCH PAYMENT.  THEREAFTER, BY LETTER DATED JANUARY 17, 1980, THE UNION
 AGAIN REQUESTED THAT RESPONDENT REIMBURSE ITS NEGOTIATING TEAM FOR ALL
 TRAVEL AND PER DIEM EXPENSES.  THE RESPONDENT TOOK THE POSITION BY
 LETTER DATED FEBRUARY 8, 1980, THAT NO EMPLOYEE WHO IS A MEMBER OF THE
 UNION'S NEGOTIATING TEAM IS ENTITLED TO REIMBURSEMENT FOR TRAVEL, PER
 DIEM, OR SUBSISTENCE EXPENSES IN VIEW OF THE PROVISIONS OF THE GROUND
 RULES EXECUTED PREVIOUSLY, AND SUBSEQUENTLY DENIED A REQUEST FOR SUCH
 PAYMENTS TO AN EMPLOYEE WHO HAD PARTICIPATED ON OFFICIAL TIME IN THE
 NEGOTIATIONS AS A MEMBER OF THE UNION NEGOTIATING TEAM.
 
    AS PREVIOUSLY STATED, THE AUTHORITY CONCLUDED IN ITS INTERPRETATION
 AND GUIDANCE, SUPRA, THAT "ANY EMPLOYEE WHO IS ON OFFICIAL TIME UNDER
 SECTION 7131 OF THE STATUTE WHILE REPRESENTING AN EXCLUSIVE
 REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT
 IS ENTITLED TO PAYMENT FROM AGENCIES FOR THEIR DUTY TIME AND TRAVEL AND
 PER DIEM EXPENSES." /1/ HOWEVER, THE ENTITLEMENT TO SUCH PAYMENT UNDER
 SECTION 7131, AS WITH OTHER RIGHTS UNDER THE STATUTE, MAY BE WAIVED BY
 CLEAR AND UNMISTAKABLE CONDUCT.  SEE, E.G., DEPARTMENT OF THE AIR FORCE,
 SCOTT AIR FORCE BASE, ILLINOIS, 5 FLRA NO. 2(1981);  DEPARTMENT OF THE
 AIR FORCE, U.S.  AIR FORCE ACADEMY, 6 FLRA NO. 100(1981).  IN THE
 INSTANT CASE, THE PARTIES SPECIFICALLY AGREED ON WRITTEN GROUND RULES
 WHICH STATED, IN PERTINENT PART, THAT "(N)O PER DIEM OR TRAVEL EXPENSES
 WILL BE PAID BY THE EMPLOYER TO MEMBERS OF THE UNION TEAM." SUCH
 SPECIFIC AND UNEQUIVOCAL LANGUAGE WAS AGREED UPON AT A TIME WHEN THE
 UNION HAD NOTICE THAT THE AUTHORITY WAS ACTIVELY INVITING AND
 CONSIDERING COMMENTS ON THE QUESTION OF WHETHER EMPLOYEES ARE ENTITLED
 TO SUCH PER DIEM AND TRAVEL EXPENSES WHILE THEY ARE ON OFFICIAL TIME FOR
 CONTRACT NEGOTIATIONS.  UNDER THE FOREGOING CIRCUMSTANCES, THE AUTHORITY
 CONCLUDES THAT THERE WAS A CLEAR AND UNMISTAKABLE WAIVER OF THE UNION
 NEGOTIATING TEAM'S ENTITLEMENT TO SUCH PAYMENTS PURSUANT TO SECTION 7131
 OF THE STATUTE, AND THAT THE RESPONDENT THEREFORE DID NOT VIOLATE
 SECTION 7116(A)(1), (5) OR (8) OF THE STATUTE BY FAILING AND REFUSING TO
 MAKE SUCH PAYMENTS UPON REQUEST.  /2/
 
                                   ORDER
 
    ACCORDINGLY, IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO.
 3-CA-1076 BE, AND IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
 
    ISSUED, WASHINGTON, D.C., MAY 20, 1982
 
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SEE ALSO BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS, WESTERN
 DIVISION, DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA
 NO. 40(1980), ENFORCED, NOS. 80-7673, 81-7021 (9TH CIR.MAR. 22, 1982).
 
    /2/ IN SO CONCLUDING, THE AUTHORITY HAS NOT CONSIDERED ANY ASSERTIONS
 CONTAINED IN THE RESPONDENT'S BRIEF WHICH RELIES UPON FACTS NOT SET
 FORTH IN THE PARTIES' STIPULATION HEREIN.  ADDITIONALLY, THE AUTHORITY
 HAS NOT CONSIDERED THE RESPONDENT'S "COUNTERCLAIM" THAT THE CHARGING
 PARTY COMMITTED AN UNFAIR LABOR PRACTICE BY REPUDIATING THE PARTIES'
 NEGOTIATED GROUND RULES, INASMUCH AS SUCH CONTENTION WAS NOT RAISED
 PURSUANT TO THE PROVISIONS OF SECTION 7118 OF THE STATUTE AND PART 2423
 OF THE AUTHORITY'S RULES AND REGULATIONS.