09:1065(150)CA - HHS, Region IV, Atlanta, GA and NTEU -- 1982 FLRAdec CA

 9 FLRA No. 150
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES
 REGION IV, ATLANTA, GEORGIA
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 4-CA-871
 
                            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 OF THE AUTHORITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, THE AUTHORITY FINDS:
 
    THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
 AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
 STATUTE) WHEN IT FAILED AND REFUSED TO COMPLY WITH SECTION 7131(A) OF
 THE STATUTE BY ITS REFUSAL TO REIMBURSE EMPLOYEE IRS COLTON FOR HIS
 TRAVEL AND PER DIEM EXPENSES INCURRED WHILE PARTICIPATING AS THE
 DESIGNATED UNION REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE
 BARGAINING AGREEMENT ON APRIL 7, 1981.
 
    THE FACTS HEREIN ARE SUBSTANTIALLY IDENTICAL TO THOSE FOUND IN BUREAU
 OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT OF THE
 TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40 (1980), ENFORCED SUB
 NOM.  BUREAU OF ALCOHOL, TOBACCO AND FIREARMS V.  FEDERAL LABOR
 RELATIONS AUTHORITY, NO. 80-7673 (9TH CIR. MAR. 22, 1982).  FOR THE
 REASONS MORE FULLY STATED IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
 THE AUTHORITY FINDS THAT THE RESPONDENT HEREIN HAS FAILED AND REFUSED TO
 COMPLY WITH SECTION 7131(A) OF THE STATUTE AND THEREFORE HAS VIOLATED
 SECTION 7116(A)(1) AND (8) OF THE STATUTE.  WITH RESPECT TO RESPONDENT'S
 ARGUMENTS BASED ON THE ALLEGED SPECIAL CIRCUMSTANCES IT VIEWS TO BE
 PRESENT, /1/ THE AUTHORITY CONCLUDES THAT SUCH ARGUMENTS HAVE NO MERIT.
 THUS, A UNION CLEARLY HAS THE STATUTORY PREROGATIVE TO DESIGNATE ITS OWN
 REPRESENTATIVES IN NEGOTIATIONS, AND THE RESPONDENT HAS NOT ESTABLISHED
 THAT THE UNION HAS CLEARLY AND UNMISTAKABLY WAIVED SUCH PREROGATIVE.
 SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 4 FLRA NO. 39(1980).
 /2/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
 AUTHORITY AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION IV, ATLANTA,
 GEORGIA SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
 TRAVEL AND PER DIEM EXPENSES TO EMPLOYEE IRS COLTON, OR ANY OTHER
 EMPLOYEE, AS A RESULT OF PARTICIPATION PURSUANT TO SECTION 7131(A) OF
 THE STATUTE AS THE DULY DESIGNATED REPRESENTATIVE OF THE NATIONAL
 TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
 DURING THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT.
 
    (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) REIMBURSE EMPLOYEE IRS COLTON FOR HIS TRAVEL AND PER DIEM
 EXPENSES INCURRED AS A RESULT OF HIS PARTICIPATION, PURSUANT TO SECTION
 7131(A) OF THE STATUTE, AS THE DULY DESIGNATED REPRESENTATIVE OF THE
 NATIONAL TREASURY EMPLOYEES UNION DURING THE NEGOTIATION OF A COLLECTIVE
 BARGAINING AGREEMENT.
 
    (B) POST AT ITS FACILITIES IN REGION IV COPIES OF THE ATTACHED NOTICE
 ON FORMS TO BE FURNISHED BY THE AUTHORITY.  UPON RECEIPT OF SUCH FORMS,
 THEY SHALL BE SIGNED BY THE AUTHORIZED REPRESENTATIVE OF REGION IV AND
 SHALL BE POSTED AND MAINTAINED BY THIS OFFICIAL FOR 60 CONSECUTIVE DAYS
 THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
 OTHER PLACES WHERE NOTICES ARE CUSTOMARILY POSTED.  THE AUTHORIZED
 REPRESENTATIVE SHALL TAKE REASONABLE STEPS TO ENSURE THAT SUCH 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 IV, FEDERAL LABOR
 RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., AUGUST 20, 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 TO EMPLOYEE IRA COLTON, OR ANY OTHER
 EMPLOYEE, AS A RESULT OF PARTICIPATION, PURSUANT TO SECTION 7131(A) OF
 THE STATUTE AS THE DULY DESIGNATED REPRESENTATIVE OF THE NATIONAL
 TREASURY EMPLOYEES UNION, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
 DURING THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT.
 
    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 REIMBURSE EMPLOYEE IRA COLTON FOR HIS TRAVEL AND PER DIEM
 EXPENSES INCURRED AS A RESULT OF HIS PARTICIPATION, PURSUANT TO SECTION
 7131(A) OF THE STATUTE AS THE DULY DESIGNATED REPRESENTATIVE OF THE
 NATIONAL TREASURY EMPLOYEES UNION DURING THE NEGOTIATION OF A COLLECTIVE
 BARGAINING AGREEMENT.
 
                           (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 EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR, REGION IV, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS
 SUITE 501 NORTH WING, 1776 PEACHTREE STREET, NW.  ATLANTA, GEORGIA 30309
 AND WHOSE TELEPHONE NUMBER IS (404) 881-2324.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN THIS REGARD, RESPONDENT ALLEGED THAT NO PREVIOUS UNION
 NEGOTIATOR HAD BEEN SELECTED FROM AN OUT-OF-TOWN LOCATION, THE
 PARTICULAR DESIGNEE HAD NEVER SERVED IN AN OFFICIAL UNION CAPACITY
 BEFORE, THE PARTIES HAD NOT DEMONSTRATED AN INTENT TO HAVE OUT-OF-TOWN
 NEGOTIATORS DURING THE PRIOR GROUND RULE NEGOTIATIONS, AND THE
 MANAGEMENT TEAM HAD NO ONE ON TRAVEL STATUS.
 
    /2/ THIS IS NOT TO SAY MANAGEMENT MAY NOT BY APPROPRIATE ACTIONS
 ATTEMPT TO CONTROL ITS EXPENSES INCURRED IN NEGOTIATIONS AS, FOR
 EXAMPLE, THROUGH THE ESTABLISHMENT OF MUTUALLY AGREEABLE NEGOTIATION
 PROCEDURES OR GROUND RULES WHICH COULD INCLUDE PROVISION FOR PRE-MEETING
 EXCHANGE OF WRITTEN POSITION STATEMENTS.  MOREOVER, SECTION 7131(A) OF
 THE STATUTE PROVIDES THAT "(T)HE 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."
 THIS LANGUAGE LIMITS THE NUMBER OF UNION REPRESENTATIVES WHO MUST BE
 PAID FOR THEIR REPRESENTATION TIME BY PEGGING THEIR NUMBER TO THE NUMBER
 OF AGENCY REPRESENTATIVES, A NUMBER WHICH THE AGENCY WOULD DESIGNATE.
 SEE NATIONAL FEDERATION OF FEDERAL EMPLOYEES V. FEDERAL LABOR RELATIONS
 AUTHORITY, 652 F. 2D 191(D.C. CIR. 1981).