10:0151(30)CA - EPA Washington, DC and EPA Region IV, Atlanta, GA and NFFE Local 1907 -- 1982 FLRAdec CA

 10 FLRA No. 30
 
 UNITED STATES ENVIRONMENTAL PROTECTION
 AGENCY, WASHINGTON, D.C. AND
 UNITED STATES ENVIRONMENTAL PROTECTION
 AGENCY, REGION IV, ATLANTA, GEORGIA
 Respondents
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1907
 Charging Party
 
                                            Case No. 4-CA-663
 
                            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.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 STIPULATION OF FACTS AND THE CONTENTIONS OF THE PARTIES, THE AUTHORITY
 FINDS:
 
    THE COMPLAINT ALLEGES THAT BOTH RESPONDENTS VIOLATED SECTION
 7116(A)(1) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE) WHEN THEY FAILED TO COMPLY WITH SECTION 7131(A) OF
 THE STATUTE BY REFUSING TO REIMBURSE EMPLOYEE JOE S. THOMAS FOR HIS
 TRAVEL AND PER DIEM EXPENSES INCURRED WHILE IN DUTY STATUS AS THE
 DESIGNATED REPRESENTATIVE OF THE UNION IN CONNECTION WITH COLLECTIVE
 BARGAINING NEGOTIATIONS.  /1/
 
    THE RESPONDENT AGENCY'S TRAVEL REGULATIONS REQUIRE THAT A TRAVEL
 AUTHORIZATION MUST BE ISSUED IN ORDER TO REIMBURSE AN EMPLOYEE FOR
 PROSPECTIVE TRAVEL AND PER DIEM EXPENSES.  THOMAS' REQUEST FOR SUCH AN
 AUTHORIZATION WAS REFUSED BY THE RESPONDENT ACTIVITY BASED UPON THE
 DIRECTION OF THE RESPONDENT AGENCY.  THE PARTIES AGREE THAT THOMAS
 PARTICIPATED IN NEGOTIATIONS ON OCTOBER 7, 8, 21, 22, 23, 28, 29 AND 30,
 NOVEMBER 12, 13, 18, 19, 20 AND 25, AND DECEMBER 2, 1980, AND THAT HE
 TRAVELED FROM HIS RESIDENCE TO THE NEGOTIATING SITE.
 
    THE ISSUE HEREIN IS SUBSTANTIALLY IDENTICAL TO THAT 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, 672 F.2D 732 (9TH CIR. 1982).  /2/ FOR THE REASONS SET FORTH
 IN DETAIL IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, THE AUTHORITY
 FINDS THAT THE RESPONDENT AGENCY VIOLATED SECTION 7116(A)(1) AND (8) OF
 THE STATUTE BY ITS DIRECTION TO THE ACTIVITY NOT TO AUTHORIZE TRAVEL AND
 PER DIEM FOR THOMAS, THEREBY PREVENTING THE ACTIVITY FROM COMPLYING WITH
 SECTION 7131(A) OF THE STATUTE.  FURTHER, THE AUTHORITY FINDS THAT THE
 ACTIVITY HAD NO CHOICE BUT TO FOLLOW THE DIRECTIVE OF THE AGENCY AND
 THUS DID NOT ITSELF VIOLATE THE STATUTE.  /3/ THUS, THE AUTHORITY SHALL
 ORDER THE RESPONDENT AGENCY TO INSTITUTE APPROPRIATE REMEDIAL ACTION AND
 SHALL ORDER THE COMPLAINT DISMISSED INSOFAR AS IT ALLEGES A VIOLATION OF
 THE STATUTE BY THE RESPONDENT ACTIVITY.
 
                                 ORDER /4/
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE UNITED STATES
 ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C., SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) DIRECTING THE ENVIRONMENTAL PROTECTION AGENCY, REGION IV,
 ATLANTA, GEORGIA, TO REFUSE
 
    TO AUTHORIZE PAYMENT FOR PROPERLY DOCUMENTED TRAVEL AND PER DIEM
 EXPENSES TO BE INCURRED BY
 
    EMPLOYEES AS A RESULT OF PARTICIPATION PURSUANT TO SECTION 7131(A) OF
 THE STATUTE AS DULY
 
    DESIGNATED REPRESENTATIVES OF THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1907, THE
 
    EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN CONNECTION WITH 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) DIRECT THE ENVIRONMENTAL PROTECTION AGENCY, REGION IV, ATLANTA,
 GEORGIA, UPON THE
 
    FILING OF A PROPERLY DOCUMENTED VOUCHER, TO REIMBURSE EMPLOYEE JOE S.
 THOMAS FOR HIS PER DIEM
 
    AND TRAVEL EXPENSES INCURRED AS A RESULT OF PARTICIPATION PURSUANT TO
 SECTION 7131(A) OF THE
 
    STATUTE AS THE DESIGNATED REPRESENTATIVE OF THE NATIONAL FEDERATION
 OF FEDERAL EMPLOYEES,
 
    LOCAL 1907, DURING THE NEGOTIATION OF A COLLECTIVE BARGAINING
 AGREEMENT.
 
    (B) POST AT ITS FACILITIES IN THE OFFICE OF THE ADMINISTRATOR,
 ENVIRONMENTAL PROTECTION
 
    AGENCY, WASHINGTON, D.C., AND IN REGION IV, ATLANTA, GEORGIA, 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 ADMINISTRATOR OF THE ENVIRONMENTAL
 PROTECTION AGENCY, WASHINGTON,
 
    D.C., OR HER DESIGNEE AND SHALL BE POSTED AND MAINTAINED FOR 60
 CONSECUTIVE DAYS THEREAFTER,
 
    IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
 WHERE NOTICES ARE
 
    CUSTOMARILY POSTED.  THE ADMINISTRATOR SHALL TAKE REASONABLE STEPS TO
 INSURE 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.
 
    IT IS HEREBY FURTHER ORDERED THAT THE COMPLAINT IN CASE NO.
 4-CA-663, INSOFAR AS IT ALLEGES A VIOLATION OF SECTION 7116(A)(1) AND
 (8) OF THE STATUTE BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
 REGION IV, ATLANTA, GEORGIA, BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 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 DIRECT THE ENVIRONMENTAL PROTECTION AGENCY, REGION IV,
 ATLANTA, GEORGIA, TO REFUSE TO AUTHORIZE PAYMENT FOR PROPERLY DOCUMENTED
 TRAVEL AND PER DIEM EXPENSES TO BE INCURRED BY EMPLOYEES AS A RESULT OF
 PARTICIPATION PURSUANT TO SECTION 7131(A) OF THE STATUTE AS DULY
 DESIGNATED REPRESENTATIVES OF THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1907, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN
 CONNECTION WITH 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 DIRECT THE ENVIRONMENTAL PROTECTION AGENCY, REGION IV,
 ATLANTA GEORGIA, UPON THE FILING OF A PROPERLY DOCUMENTED VOUCHER, TO
 REIMBURSE EMPLOYEE JOE S. THOMAS FOR HIS PER DIEM AND TRAVEL EXPENSES
 INCURRED AS A RESULT OF HIS PARTICIPATION PURSUANT TO SECTION 7131(A) OF
 THE STATUTE AS THE DESIGNATED REPRESENTATIVE OF THE NATIONAL FEDERATION
 OF FEDERAL EMPLOYEES, LOCAL 1907, DURING THE NEGOTIATION OF A COLLECTIVE
 BARGAINING AGREEMENT.
 
                                 (AGENCY)
 
    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 THE 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, N.W., ATLANTA, GEORGIA
 30309 AND WHOSE TELEPHONE NUMBER IS (404) 881-2324.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE RESPONDENTS ALLEGE THAT BECAUSE THE UNION HAD FILED A SIMILAR
 CHARGE (CASE NO. 4-CA-637) AND THEN WITHDREW IT WITH THE APPROVAL OF THE
 REGIONAL DIRECTOR, THE INSTANT COMPLAINT SHOULD BE DISMISSED AS MOOT.
 HOWEVER, A WITHDRAWAL IS PROCEDURAL IN NATURE AND DOES NOT BAR A
 CHARGING PARTY FROM TIMELY REFILING.  ALSO WITHOUT MERIT IS THE
 RESPONDENTS' CONTENTION THAT THE CHARGE HEREIN WAS FILED PREMATURELY
 BECAUSE THOMAS AFTER THE FACT HAD NOT SUBMITTED A VOUCHER SEEKING
 REIMBURSEMENT OF HIS EXPENSES.  WHERE, AS HERE, AN AGENCY REFUSES TO
 AUTHORIZE REIMBURSEMENT OF EXPENSES, THE AUTHORITY WILL NOT REQUIRE THE
 SUBSEQUENT PERFORMANCE OF A FUTILE ACT.
 
    /2/ BUT SEE DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK
 (ALBANY, NEW YORK), 7 FLRA NO. 69(1981), REVERSED SUB NOM. DIVISION OF
 MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK, AND DEPARTMENT OF DEFENSE
 V. FEDERAL LABOR RELATIONS AUTHORITY, NO.  82-4036 (2D CIR. JUNE 28,
 1982) AND U.S. DEPARTMENT OF AGRICULTURE, SCIENCE AND EDUCATION
 ADMINISTRATION, AGRICULTURAL RESEARCH, NORTH CENTRAL REGION,
 DAKOTAS-ALASKA AREA, 6 FLRA NO. 45 (1981), REVERSED SUB NOM.  UNITED
 STATES DEPARTMENT OF AGRICULTURE V. FEDERAL LABOR RELATIONS AUTHORITY,
 NO.  81-1948 (8TH CIR. AUGUST 9, 1982).
 
    /3/ DEPARTMENT OF THE INTERIOR, WATER AND POWER RESOURCES SERVICE,
 GRAND COULEE PROJECT, GRAND COULEE, WASHINGTON, 9 FLRA NO. 46(1982).
 
    /4/ THE RESPONDENTS' CONTENTION THAT THOMAS WAS DUE NO PER DIEM MORE
 PROPERLY BE RAISED DURING THE COMPLIANCE STAGE OF THIS PROCEEDING.