09:0246(34)CA - EEOC, HQ, Washington, DC and National Council of EEOC Locals, No. 216, AFGE -- 1982 FLRAdec CA

 9 FLRA No. 34
 
 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
 HEADQUARTERS, WASHINGTON, D.C.
 Respondent
 
 and
 
 NATIONAL COUNCIL OF EEOC LOCALS, NO. 216,
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-1068
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S ORDER TRANSFERRING THE CASE TO THE AUTHORITY IN ACCORDANCE
 WITH SECTION 2429.1(A) (5 CFR 2429.1(A)) OF THE AUTHORITY'S RULES AND
 REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
 INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND
 BRIEFS SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE
 AUTHORITY FINDS:  SINCE ON OR ABOUT MARCH 1980, AND AT ALL TIMES
 MATERIAL HEREIN, THE RESPONDENT HAS FAILED AND REFUSED, AND CONTINUES TO
 FAIL AND REFUSE TO REIMBURSE UNION NEGOTIATORS, WHO HAD BEEN AUTHORIZED
 OFFICIAL TIME, FOR TRAVEL AND PER DIEM EXPENSES INCURRED IN REGARD TO
 COLLECTIVE-BARGAINING NEGOTIATIONS FOR EXPERIMENTAL FLEXITIME SCHEDULES
 AT SELECTED FIELD LOCATIONS.  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:
 THE UNION HEREIN IS THE EXCLUSIVE REPRESENTATIVE OF A NATIONWIDE
 BARGAINING UNIT OF PROFESSIONAL AND NONPROFESSIONAL EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION (EEOC) EMPLOYEES.  THE UNION AND THE RESPONDENT
 ENTERED INTO NEGOTIATIONS TO SELECT AN EXPERIMENTAL FLEXITIME SCHEDULE
 IN 14 DESIGNATED PARTICIPATING OFFICES OF EEOC.  THE RESPONDENT,
 ALTHOUGH GRANTING OFFICIAL TIME TO UNION NEGOTIATORS WHO HAD BEEN
 AUTHORIZED SUCH TIME IN REGARD TO COLLECTIVE BARGAINING NEGOTIATIONS FOR
 THE FLEXITIME SCHEDULES, NONETHELESS DENIED THEM TRAVEL AND PER DIEM
 EXPENSES INCURRED WITH RESPECT TO THOSE NEGOTIATIONS.  THE RESPONDENT
 ADMITS IT ACTED AS ALLEGED, AND ALSO ADMITS THAT SUCH CONDUCT IS
 VIOLATIVE OF THE STATUTE AS PRESENTLY INTERPRETED.  /1/ HOWEVER, THE
 RESPONDENT URGES THAT PRECEDENT BE REVERSED.
 
    THE AUTHORITY HAS CONSIDERED THE RESPONDENT'S ARGUMENTS THAT
 ESTABLISHED PRECEDENT BE REVERSED.  HOWEVER, NO BASIS HAS BEEN ADVANCED
 TO PERSUADE THE AUTHORITY THAT THE ESTABLISHED PRECEDENT IS INCORRECT,
 NOR HAS THE RESPONDENT RAISED ANY ARGUMENTS NOT PREVIOUSLY CONSIDERED BY
 THE AUTHORITY.  THUS, THE AUTHORITY CONCLUDED IN THE INTERPRETATION AND
 GUIDANCE DECISION BASED ON THE ANALYSIS OF SECTION 7101 OF THE STATUTE
 AND THE LEGISLATIVE HISTORY OF SECTION 7131 THAT "ANY EMPLOYEE WHO IS ON
 OFFICIAL TIME UNDER SECTION 7131 OF THE STATUTE WHILE REPRESENTING AN
 EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATIONS OF A COLLECTIVE BARGAINING
 AGREEMENT IS ENTITLED TO PAYMENT FROM AGENCIES FOR THEIR DUTY TIME AND
 TRAVEL AND PER DIEM EXPENSES." THEREFORE, THE AUTHORITY, NOTING THAT THE
 NEGOTIATIONS INVOLVED HEREIN WERE WITH REGARD TO INTERPRETATION OF THE
 PARTIES' AGREEMENT, DURING ITS TERM, 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.  /2/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 AND FEDERAL LABOR RELATIONS AUTHORITY'S
 RULES AND REGULATIONS IN SECTION 7118 OF THE STATUTE, THE AUTHORITY
 HEREBY ORDERS THAT THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
 HEADQUARTERS, WASHINGTON, D.C., SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING OR REFUSING AS REQUIRED BY SECTION 7131(A) OF THE STATUTE
 TO PROVIDE PAYMENT OF
 
    THE PROPERLY DOCUMENTED TRAVEL AND PER DIEM EXPENSES INCURRED BY ANY
 AGENCY EMPLOYEES, AS A
 
    RESULT OF THEIR PARTICIPATION, ON OFFICIAL TIME, AS DULY DESIGNATED
 REPRESENTATIVES OF THE
 
    NATIONAL COUNCIL OF EEOC LOCALS, NO. 216, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 
    AFL-CIO, THE SCHEDULED REPRESENTATIVE OF THE BARGAINING UNIT
 EMPLOYEES, IN SCHEDULED
 
    UNION-AGENCY NEGOTIATION SESSIONS FOR EXPERIMENTAL FLEXITIME
 SCHEDULES.
 
    (B) IN ANY LIKE OR RELATED MATTER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS INSURED BY THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THIS STATUTE:
 
    (A) PROVIDE PAYMENT TO ANY AGENCY EMPLOYEES IN REIMBURSEMENT OF THEIR
 PROPERLY DOCUMENTED
 
    CLAIMS THEY HAVE SUBMITTED FOR PAYMENT OF THE TRAVEL AND PER DIEM
 EXPENSES THEY HAVE INCURRED
 
    AS A RESULT OF THEIR PARTICIPATION, ON OFFICIAL TIME, AS DULY
 DESIGNATED REPRESENTATIVES OF
 
    THE ABOVE UNION, IN THE UNION-AGENCY NEGOTIATING SESSIONS FOR
 EXPERIMENTAL FLEXITIME
 
    SCHEDULES.  /3/
 
    (B) POST AT ITS VARIOUS OFFICES IN THE UNITED STATES WHERE THE UNION
 NEGOTIATORS WHO TOOK
 
    PART IN THE EXPERIMENTAL FLEXITIME SCHEDULES ARE LOCATED, COPIES OF
 THE ATTACHED
 
    NOTICE.  COPIES OF SAID NOTICE, TO BE FURNISHED BY THE REGIONAL
 DIRECTOR FOR REGION 3, AFTER
 
    BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL BE POSTED BY IT
 IMMEDIATELY UPON RECEIPT
 
    THEREOF, AND BE MAINTAINED BY IT FOR 60 CONSECUTIVE DAYS THEREAFTER,
 IN CONSPICUOUS
 
    PLACES.  REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES
 ARE NOT ALTERED, DEFACED,
 
    OR COVERED BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
 30 DAYS FROM THE DATE
 
    OF THIS ORDER AS TO WHAT STEPS ARE BEING TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., JUNE 24, 1982
 
                       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 ANY AGENCY EMPLOYEES, AS A
 RESULT OF THEIR PARTICIPATION, ON OFFICIAL TIME, AS DULY DESIGNATED
 REPRESENTATIVES OF THE NATIONAL COUNCIL OF EEOC LOCALS, NO.  216,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EXCLUSIVE
 REPRESENTATIVE OF OUR BARGAINING UNIT EMPLOYEES, IN SCHEDULED
 UNION-AGENCY NEGOTIATION SESSIONS FOR EXPERIMENTAL FLEXITIME SCHEDULES.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
 COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    WE WILL PROVIDE PAYMENT TO ANY AGENCY EMPLOYEES IN REIMBURSEMENT OF
 THE PROPERLY DOCUMENTED CLAIMS THEY HAVE SUBMITTED TO US FOR PAYMENT OF
 THE TRAVEL AND PER DIEM EXPENSES THEY INCURRED AS A RESULT OF THEIR
 PARTICIPATION, ON OFFICIAL TIME, AS DULY DESIGNATED REPRESENTATIVES OF
 THE ABOVE UNION, IN UNION-AGENCY NEGOTIATING SESSIONS FOR EXPERIMENTAL
 FLEXITIME SCHEDULES.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF ANY EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
 COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
 WITH THE REGIONAL DIRECTOR, REGION 3, FEDERAL LABOR RELATIONS AUTHORITY,
 WHOSE ADDRESS IS 1111 18TH ST., NW., WASHINGTON, D.C. 20036, AND WHOSE
 TELEPHONE NUMBER IS:  (202) 653-8452.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SEE, INTERPRETATION AND GUIDANCE, 2 FLRA 264(1979);  BUREAU OF
 ALCOHOL, TOBACCO, AND FIREARMS, WESTERN DIVISION, DEPARTMENT OF THE
 TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40(1980), ENFORCED, 672
 F.2D 732(9TH CIR., 1982).
 
    /2/ 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).
 
    /3/ THE RESPONDENT IN ITS BRIEF RAISES THE QUESTION WHETHER UNION
 NEGOTIATOR MERVIN BRUCE WOULD, IN THE EVENT A VIOLATION IS FOUND, BE
 ENTITLED TO PAYMENT.  THIS IS A MATTER THAT SHOULD PROPERLY BE RAISED IN
 THE COMPLIANCE STAGE OF THIS PROCEEDINGS.