10:0202(40)CA - INS and National INS Council, AFGE -- 1982 FLRAdec CA



[ v10 p202 ]
10:0202(40)CA
The decision of the Authority follows:


 10 FLRA No. 40
 
 IMMIGRATION AND NATURALIZATION SERVICE
 Respondent
 
 and
 
 NATIONAL IMMIGRATION AND NATURALIZATION
 SERVICE COUNCIL, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-2069
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE 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 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 DENIAL IN 1981 OF THE UNION'S REQUEST FOR APPROPRIATE
 TRAVEL AUTHORIZATIONS FOR ITS DESIGNATED REPRESENTATIVES IN SCHEDULED
 NEGOTIATIONS.  THE FOLLOWING UNION DESIGNEES WERE SPECIFICALLY DENIED
 REIMBURSEMENT OF THEIR CLAIMED EXPENSES RELATED TO TRAVEL AND PER DIEM
 FOR SUCH NEGOTIATIONS:  J. BROZ, WARD LEIS AND NORMAN FISHER.
 
    THE RESPONDENT TAKES THE POSITION THAT NO STATUTORY RIGHT TO PER DIEM
 AND TRAVEL EXPENSES EXISTS UNDER SECTION 7131 OF THE STATUTE AND THAT
 THE AUTHORITY'S INTERPRETATION AND GUIDANCE, 2 FLRA 265(1979) GRANTING
 SUCH A RIGHT WAS ERRONEOUS.
 
    ON THIS ISSUE, THE POSITIONS OF THE PARTIES ARE SUBSTANTIALLY SIMILAR
 TO THOSE 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), WHEREIN
 THE AUTHORITY HELD THAT EMPLOYEES WHO ARE ON OFFICIAL TIME UNDER SECTION
 7131(A) OF THE STATUTE WHILE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN
 THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT ARE ENTITLED TO
 PAYMENT FROM AGENCIES FOR THEIR DUTY TIME AND TRAVEL AND PER DIEM
 EXPENSES.  /1/ BASED ON THE REASONS SET FORTH IN THAT DECISION, THE
 AUTHORITY FINDS THAT UNDER SECTION 7131(A) OF THE STATUTE THE RESPONDENT
 HAS THE OBLIGATION TO PAY THE EMPLOYEES IN QUESTION TRAVEL AND PER DIEM
 EXPENSES.
 
    ALTERNATIVELY, THE RESPONDENT TAKES THE POSITION THAT, ASSUMING SUCH
 A RIGHT EXISTS, THE UNION IN THE COLLECTIVE BARGAINING AGREEMENT DATED
 JUNE 13, 1979, WAIVED THE RIGHT TO PER DIEM AND TRAVEL EXPENSES FOR
 EMPLOYEES DESIGNATED AS NEGOTIATING TEAM MEMBERS.  IN TAKING THIS
 POSITION, IT RELIES ON ARTICLE 7 OF THE AGREEMENT, PARTICULARLY
 SUBSECTIONS A AND G, WHICH READ, IN PART, AS FOLLOWS:
 
    ARTICLE 7-- USE OF OFFICIAL TIME
 
    A.  UPON REQUEST, AN APPROVAL IN ADVANCE, UNION OFFICIALS MAY USE
 OFFICIAL TIME TO CONDUCT
 
    REPRESENTATIONAL FUNCTIONS WHERE SUCH IS AUTHORIZED PURSUANT TO, AND
 CONSISTENT WITH,
 
    APPLICABLE STATUTES, REGULATIONS, AND EXECUTIVE ORDERS RELATING TO
 COMPLAINTS, GRIEVANCES,
 
    APPEALS, AND OTHER MATTERS INVOLVING DEALINGS WITH SERVICE OFFICIALS.
  OFFICIAL TIME FOR
 
    REPRESENTATIONAL FUNCTIONS PERFORMED BY UNION OFFICERS AND STEWARDS
 WILL BE AUTHORIZED FOR:
 
   .          .          .          .
 
 
    G.  NATIONAL COUNCIL REPRESENTATIVES WHO ARE AUTHORIZED OFFICIAL TIME
 TO ATTEND THE
 
    FOLLOWING MEETINGS:
 
    (1) NATIONAL AND REGIONAL SEMI-ANNUAL LABOR-MANAGEMENT MEETINGS;
 
    (2) NATIONAL AND REGIONAL SAFETY AND HEALTH COMMITTEE MEETINGS;  OR
 
    (3) ANY OTHER MEETING SCHEDULED BY MANAGEMENT WITH THE INTENT OF
 MEETING WITH THE UNION AS
 
    GENERAL REPRESENTATIVE OF THE BARGAINING UNIT FOR THE PURPOSE OF
 OBTAINING THE UNION'S VIEWS
 
    OR OFFERING MANAGEMENT'S VIEWS ON THE OPERATION OF A POLICY OR
 PROGRAM (EXCLUDING GRIEVANCE,
 
    REPRESENTATION, COMPLAINTS, APPEALS, NEGOTIATIONS, ETC.). WILL BE
 AUTHORIZED TRAVEL EXPENSES
 
    AND PER DIEM.
 
    SPECIFICALLY, THE RESPONDENT ARGUES THAT ALTHOUGH THOSE EMPLOYEES
 ENGAGED IN REPRESENTING THE UNION DURING NEGOTIATIONS ARE ENTITLED TO
 OFFICIAL TIME PURSUANT TO ARTICLE 7 SUBSECTION (A) OF THE CONTRACT,
 SUBSECTION G(3) THEREOF EXCLUDES NEGOTIATIONS SUCH AS THOSE AT ISSUE
 HEREIN FROM THE OBLIGATION TO PAY TRAVEL AND PER DIEM EXPENSES.
 
    THE PARTIES REACHED COMPLETE AGREEMENT ON THE CONTRACT INVOLVED
 HEREIN ON JULY 2, 1979.  THE AUTHORITY TAKES ADMINISTRATIVE NOTICE THAT,
 THEREAFTER, ON JULY 20, 1979, IT 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 265, PROVIDING,
 IN PART, THAT SUCH EMPLOYEES ARE ENTITLED TO PAYMENTS FOR TRAVEL AND PER
 DIEM EXPENSES.
 
    THE AUTHORITY, IN NUCLEAR REGULATORY COMMISSION, 8 FLRA NO.
 124(1982), FOUND THAT ENTITLEMENT TO TRAVEL AND PER DIEM EXPENSES UNDER
 SECTION 7131, AS WITH OTHER RIGHTS UNDER THE STATUTE, MAY BE WAIVED BY
 CLEAR AND UNMISTAKABLE CONDUCT OF THE UNION.  IN FINDING SUCH A WAIVER
 AND DISMISSING THE COMPLAINT, THE AUTHORITY NOTED IN PARTICULAR THAT
 "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." A DIFFERENT RESULT MUST BE REACHED IN THE
 INSTANT CASE, CONSISTENT WITH THE QUOTED LANGUAGE FROM THE NUCLEAR
 REGULATORY COMMISSION DECISION.  HERE, THE PARTIES WERE NOT ON NOTICE AT
 THE TIME OF NEGOTIATIONS THAT THE AUTHORITY WOULD CONSIDER THE QUESTION
 OF ENTITLEMENT TO PER DIEM AND TRAVEL EXPENSES AS A STATUTORY RIGHT
 UNDER SECTION 7131.  VIEWED IN THIS CONTEXT, IT APPEARS THAT THE
 LANGUAGE OF ARTICLE 7 IN THE PARTIES' AGREEMENT, EVEN IF IT
 UNAMBIGUOUSLY PROVIDED THAT TRAVEL AND PER DIEM WOULD NOT BE PAID TO
 EMPLOYEES REPRESENTING THE UNION IN CONTRACT NEGOTIATIONS, SHOULD NOT BE
 FOUND TO CONSTITUTE THE CONSCIOUS YIELDING BY THE UNION OF A THEN
 UNKNOWN STATUTORY RIGHT.  /2/ THEREFORE, THE UNION DID NOT CLEARLY AND
 UNMISTAKABLY WAIVE SUCH STATUTORY RIGHT TO PER DIEM AND TRAVEL EXPENSES
 INCURRED BY EMPLOYEES ON ITS NEGOTIATING TEAM.  /3/
 
    ACCORDINGLY, THE AUTHORITY FINDS THAT THE RESPONDENT 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.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE IMMIGRATION AND NATURALIZATION SERVICE
 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING OR REFUSING TO REIMBURSE EMPLOYEES J. BROZ, WAR