09:0629(70)NG - NTEU and Treasury, Customs Service -- 1982 FLRAdec NG

 9 FLRA No. 70
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 Union
 
 and
 
 DEPARTMENT OF THE TREASURY,
 U.S. CUSTOMS SERVICE
 Agency
 
                                            Case No. O-NG-293
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
 RAISES ISSUES CONCERNING THE NEGOTIABILITY OF TWO UNION PROPOSALS.  UPON
 CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
 CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
                             UNION PROPOSAL 1
 
    THE EMPLOYER AGREES TO PAY THE TRAVEL EXPENSES INCURRED BY EMPLOYEES
 WHILE USING OFFICIAL
 
    TIME AVAILABLE UNDER THE TERMS OF THIS AGREEMENT.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS, AS ALLEGED
 BY THE AGENCY, INCONSISTENT WITH FEDERAL LAW.
 
                                  OPINION
 
 CONCLUSION AND ORDER:  UNION PROPOSAL 1 IS NOT INCONSISTENT WITH FEDERAL
 LAW.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES
 AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE AGENCY
 SHALL PASS UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
 BARGAIN CONCERNING UNION PROPOSAL 1.  /1/ REASONS:  IN INTERPRETATION
 AND GUIDANCE, 2 FLRA 265 (1979), THE AUTHORITY DETERMINED THAT EMPLOYEES
 ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE /2/ ARE ENTITLED
 TO PAYMENT FOR THEIR DUTY TIME AND TRAVEL AND PER DIEM EXPENSES.  IN
 THIS REGARD, THE AUTHORITY, NOTING THAT IT IS WELL ESTABLISHED THAT SUCH
 EXPENSES ARE AUTHORIZED WHEN AN EMPLOYEE IS ENGAGED ON "OFFICIAL
 BUSINESS FOR THE GOVERNMENT," FOUND THAT AN EMPLOYEE ON OFFICIAL TIME
 UNDER SECTION 7131(A) CLEARLY IS ENGAGED IN SUCH OFFICIAL BUSINESS.  SEE
 ALSO BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT
 OF THE TREASURY, SAN FRANCISCO, CALIFORNIA AND NATIONAL TREASURY
 EMPLOYEES UNION, CHAPTER 81, 4 FLRA NO. 40 (1980), ENFORCED SUB NOM.
 BUREAU OF ALCOHOL, TOBACCO AND FIREARMS V. FEDERAL LABOR RELATIONS
 AUTHORITY, . . . F.2D . . . (9TH CIR. 1982).  LIKEWISE, IN SECTION
 2429.13 OF ITS RULES AND REGULATIONS, THE AUTHORITY INTERPRETED SECTION
 7131(C) OF THE STATUTE /3/ AS ENTITLING AN EMPLOYEE PARTICIPATING ON
 OFFICIAL TIME IN ANY PROCEEDING BEFORE THE AUTHORITY TO TRAVEL AND PER
 DIEM EXPENSES.  IN EACH OF THESE INSTANCES, THE CRITICAL FACTOR
 AUTHORIZING PAYMENT OF TRAVEL EXPENSES UNDER 5 U.S.C.  SEC. 5701 ET SEQ.
 HAS BEEN THE REQUIREMENT THAT AN EMPLOYEE BE AUTHORIZED OFFICIAL TIME
 UNDER SECTION 7131 OF THE STATUTE.
 
    WHILE SECTION 7131(D) OF THE STATUTE, /4/ AS RELEVANT HEREIN, DOES
 NOT CREATE AN ENTITLEMENT TO OFFICIAL TIME, IT DOES PROVIDE THAT
 OFFICIAL TIME SHALL BE GRANTED IN ANY AMOUNT THE AGENCY AND THE
 EXCLUSIVE REPRESENTATIVE INVOLVED AGREE TO BE REASONABLE, NECESSARY, AND
 IN THE PUBLIC INTEREST.  THUS, WHERE, UNDER THE PROVISIONS OF SECTION
 7131(D) OF THE STATUTE, IT IS AGREED THAT AN EMPLOYEE IS TO BE GRANTED
 OFFICIAL TIME, CONSISTENT WITH THE AUTHORITY'S PREVIOUSLY CITED
 POLICIES, TRAVEL DURING SUCH OFFICIAL TIME WOULD PERFORCE ENTITLE AN
 EMPLOYEE TO PAYMENTS FROM THE AGENCY FOR TRAVEL AND PER DIEM EXPENSES.
 
    THE DISPUTED PROPOSAL HERE WOULD REQUIRE THE AGENCY TO PAY TRAVEL
 EXPENSES FOR EMPLOYEES WHO TRAVEL ON OFFICIAL TIME PURSUANT TO SECTION
 7131(D).  AS SUCH, IT WOULD MERELY INCORPORATE INTO THE PARTIES'
 AGREEMENT THE LEGAL ENTITLEMENT TO SUCH EXPENSES.  SINCE THE PROPOSAL IS
 THUS NOT INCONSISTENT WITH SECTION 7131 OR ANY OTHER PROVISION OF LAW,
 THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO
 BARGAIN CANNOT BE SUSTAINED.
 
                             UNION PROPOSAL 2
 
    THE EMPLOYER SHALL STAY THE EFFECT OF ANY DECISION TO TAKE
 (DISCIPLINARY ACTION, ADVERSE
 
    ACTION, OR ACTION BASED UPON UNACCEPTABLE PERFORMANCE) /5/ AGAINST
 ANY EMPLOYEE PENDING THE
 
    OUTCOME OF ANY ADMINISTRATIVE APPEAL THROUGH THE GRIEVANCE AND
 ARBITRATION PROCEDURE, OR ANY
 
    APPEAL TO THE M.S.P.B., AS APPROPRIATE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER UNION PROPOSAL 2 IS, AS ALLEGED BY
 THE AGENCY, INCONSISTENT WITH SECTION 7106(A)(2)(A) OF THE STATUTE.  /6/
 
                                  OPINION
 
 CONCLUSION AND ORDER:  UNION PROPOSAL 2 IS INCONSISTENT WITH SECTION
 7106(A)(2)(A) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10
 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS
 ORDERED THAT THE PETITION FOR REVIEW AS TO UNION PROPOSAL 2 BE, AND IT
 HEREBY IS, DISMISSED.  REASONS:  IN AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE,
 DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA 152 (1979), ENFORCED
 SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659
 F.2D 1140 (D.C. CIR. 1981), CERT. DENIED SUB NOM. AFGE V. FLRA, 50
 U.S.L.W. 3669 (FEB. 23, 1982), THE AUTHORITY HELD THAT A PROPOSAL TO
 STAY A DISCIPLINARY SUSPENSION OR REMOVAL PENDING THE EXHAUSTION OF THE
 NEGOTIATED GRIEVANCE AND ARBITRATION PROCESS WAS WITHIN THE DUTY TO
 BARGAIN AS A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE
 STATUTE BECAUSE IT WOULD NOT PREVENT THE AGENCY FROM ACTING AT ALL WITH
 RESPECT TO ITS MANAGEMENT RIGHTS.
 
    THE PROPOSAL IN THIS CASE, HOWEVER, WOULD STAY DISCIPLINARY ACTIONS,
 ADVERSE ACTIONS, OR ACTIONS BASED ON UNACCEPTABLE PERFORMANCE PENDING AN
 APPEAL THROUGH EITHER THE GRIEVANCE PROCEDURE OR THROUGH THE MERIT
 SYSTEMS PROTECTION BOARD (MSPB).  MSPB HAS TWO FORMS OF JURISDICTION--
 ORIGINAL (I.E., CASES BROUGHT DIRECTLY BEFORE THE BOARD) AND APPELLATE
 (I.E., APPEALS FROM AGENCY ACTIONS).  BASED UPON THE LANGUAGE OF MSPB'S
 REGULATIONS, MSPB WILL NOT ENTERTAIN AN APPEAL THROUGH ITS APPELLATE
 JURISDICTION UNTIL FINAL AGENCY ACTION HAS BEEN TAKEN.  SPECIFICALLY, 5
 CFR 1201.3(A) DEFINES MSPB'S APPELLATE JURISDICTION TO BE OVER CASES
 WHERE THERE HAS BEEN PRIOR ACTION WITHIN AN AGENCY.  MOREOVER, THE
 MSPB'S REGULATIONS SPECIFY THAT PETITIONS FOR APPEAL ARE TO BE FILED
 BEGINNING ON THE DAY AFTER THE EFFECTIVE DATE OF THE ACTION BEING
 APPEALED.  5 CFR 1201.22(B) AND 1201.23.  IN CARDIN V. DEPARTMENT OF THE
 NAVY, 4 MSPB 97 (1980), MSPB INDICATED THAT IT WOULD REQUIRE STRICT
 ADHERENCE TO SUCH REGULATIONS.  IN THAT CASE, AN EMPLOYEE FILED AN
 APPEAL WITH MSPB AFTER RECEIVING A REDUCTION-IN-FORCE NOTICE BUT BEFORE
 THE EFFECTIVE DATE THEREOF.  MSPB ACCEPTED JURISDICTION ONLY AFTER THE
 EMPLOYEE HAD BEEN REMOVED FROM HIS POSITION, HOLDING THAT THE APPEAL
 COULD HAVE BEEN DISMISSED FOR WANT OF JURISDICTION AT ANY TIME PRIOR TO
 THE EFFECTIVE DATE OF THE REMOVAL OF THE EMPLOYEE FROM HIS POSITION.
 THUS, MSPB REQUIRES FINAL AGENCY ACTION AS A JURISDICTIONAL
 PREREQUISITE.  SEE ALSO KOROWIN V. DEPARTMENT OF JUSTICE, 4 MSPB 140
 (1980);  ALFORD V. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, 1 MSPB
 305 (1980).
 
    THE PROPOSAL IN THIS CASE WOULD STAY CERTAIN ACTIONS BY THE AGENCY
 PENDING THE OUTCOME OF AN APPEAL TO THE MSPB.  HOWEVER, IN THE EVENT OF
 SUCH A STAY, THERE COULD BE NO FINAL AGENCY ACTION WITHIN THE MEANING OF
 MSPB'S REGULATIONS.  THIS BEING SO, MSPB WOULD NOT ENTERTAIN AN APPEAL.
 THUS, THE PROPOSAL WOULD HAVE THE ANOMALOUS EFFECT OF STAYING AGENCY
 ACTION PERMANENTLY, I.E., THE CONDITION PRECEDENT TO AGENCY ACTION, THE
 "OUTCOME" OF AN APPEAL TO MSPB, NEVER COULD OCCUR BECAUSE MSPB WOULD NOT
 ACCEPT JURISDICTION IN THE ABSENCE OF FINAL AGENCY ACTION.  IN SHORT,
 THE PROPOSAL WOULD PREVENT THE AGENCY FROM ACTING AT ALL TO TAKE THE
 ACTIONS SPECIFIED IN THE PROPOSAL AGAINST AN EMPLOYEE.  ACCORDINGLY, THE
 PROPOSAL IS NOT A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) BUT
 RATHER IS INCONSISTENT WITH SECTION 7106(A)(2)(A) AND, THEREFORE, NOT
 WITHIN THE DUTY TO BARGAIN.  
 
 ISSUED, WASHINGTON, D.C., JULY 21, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
 AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.
 
    /2/ SECTION 7131(A) PROVIDES AS FOLLOWS:
 
    SEC. 7131.  OFFICIAL TIME
 
    (A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
 NEGOTIATION OF A
 
    COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER SHALL BE
 AUTHORIZED OFFICIAL TIME FOR SUCH
 
    PURPOSES, INCLUDING ATTENDANCE AT IMPASSE PROCEEDING, DURING THE TIME
 THE EMPLOYEE OTHERWISE
 
    WOULD BE IN A DUTY STATUS.  THE NUMBER OF EMPLOYEES FOR WHOM OFFICIAL
 TIME IS AUTHORIZED UNDER
 
    THIS SUBSECTION SHALL NOT EXCEED THE NUMBER OF INDIVIDUALS DESIGNATED
 AS REPRESENTING THE
 
    AGENCY FOR SUCH PURPOSES.
 
    /3/ SECTION 7131(C) PROVIDES AS FOLLOWS:
 
    SEC. 7131.  OFFICIAL TIME
 
   .          .          .          .
 
 
    (C) EXCEPT AS PROVIDED IN SUBSECTION (A) OF THIS SECTION, THE
 AUTHORITY SHALL DETERMINE
 
    WHETHER ANY EMPLOYEE PARTICIPATING FOR, OR ON BEHALF OF, A LABOR
 ORGANIZATION IN ANY PHASE OF
 
    PROCEEDINGS BEFORE THE AUTHORITY SHALL BE AUTHORIZED OFFICIAL TIME
 FOR SUCH PURPOSE DURING THE
 
    TIME THE EMPLOYEE OTHERWISE WOULD BE IN A DUTY STATUS.
 
    /4/ SECTION 7131(D) PROVIDES AS FOLLOWS:
 
    SEC. 7131.  OFFICIAL TIME
 
   .          .          .          .
 
 
    (D) EXCEPT AS PROVIDED IN THE PRECEDING SUBSECTION OF THIS SECTION--
 
    (1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
 
    (2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS CHAPTER, ANY
 EMPLOYEE IN AN
 
    APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE, SHALL BE
 GRANTED OFFICIAL TIME IN
 
    ANY AMOUNT THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE INVOLVED AGREE
 TO BE REASONABLE,
 
    NECESSARY, AND IN THE PUBLIC INTEREST.
 
    /5/ AS SUBMITTED TO THE AUTHORITY, UNION PROPOSAL 2 DID NOT
 
    /5/ AS SUBMITTED TO THE AUTHORITY, UNION PROPOSAL 2 DID NOT SPACE AT
 THAT POINT.  BASED UPON THE UNION'S STATEMENTS TO THE AUTHORITY,
 HOWEVER, IT IS CLEAR THAT THE PROPOSAL IS INTENDED TO EFFECT A STAY OF
 DISCIPLINARY ACTIONS, ADVERSE ACTIONS, OR ACTIONS BASED UPON
 UNACCEPTABLE PERFORMANCE.
 
    /6/ SECTION 7106(A)(2)(A) PROVIDES AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
    (A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
 AGENCY, OR TO SUSPEND,
 
    REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
 AGAINST SUCH EMPLOYEES(.)