New York Division of Military and Naval Affairs and Civilian Technicians Council (Authority decision, December 29, 1981)

Final FLRA decision. This is a final Authority order. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

On a stipulated record, the New York Division of Military and Naval Affairs refused requested travel and per diem for union negotiators on official time. The agency urged the Authority to reverse its existing interpretation of section 7131(a), but the Authority found no new basis to do so. It held that the refusal violated sections 7116(a)(1) and (8) and ordered payment of properly documented expenses, including expenses for later negotiation sessions. There was no judge's decision under review; the violation finding controls the outcome label.

Decision snapshot

• Authority: 5 U.S.C. § 7116(a)(1), 5 U.S.C. § 7116(a)(8), 5 U.S.C. § 7131(a).
• Outcome: Unfair labor practice found; documented negotiating expenses ordered paid.
• Key point: Official-time union negotiators were entitled to travel and per diem reimbursement.

Full text (FLRA public release)

[ v07 p458 ]

07:0458(69)CA

The decision of the Authority follows:

7 FLRA No. 69

DIVISION OF MILITARY AND NAVAL AFFAIRS
STATE OF NEW YORK (ALBANY, NEW YORK)
Respondent

and

NEW YORK STATE COUNCIL OF ASSOCIATION
OF CIVILIAN TECHNICIANS, INC.
Charging Party

Case No. 1-CA-334

DECISION AND ORDER /1/

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 (5 CFR 2429.1(A)).

UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, BRIEFS SUBMITTED
BY THE RESPONDENT AND THE GENERAL COUNSEL, AND AMICUS CURIAE BRIEFS
FILED BY NATIONAL FEDERATION OF FEDERAL EMPLOYEES AND NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, THE AUTHORITY FINDS:

THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE) BASED ON ITS REFUSAL TO AUTHORIZE TRAVEL AND PER
DIEM EXPENSES FOR EMPLOYEES SERVING AS MEMBERS OF THE UNION'S
NEGOTIATING COMMITTEE IN NONCOMPLIANCE WITH SECTION 7131(A) OF THE
STATUTE. THE RESPONDENT ADMITS THAT AS SECTION 7131(A) IS PRESENTLY
INTERPRETED, /2/ ITS REFUSAL TO AUTHORIZE TRAVEL OR PER DIEM EXPENSES
VIOLATES THE STATUTE. HOWEVER, THE RESPONDENT URGES THAT SUCH PRECEDENT
BE REVERSED ON THE GROUND THAT SECTION 7131(A) OF THE STATUTE CONTAINS
NO EXPRESS PROVISION GRANTING THE AUTHORITY THE POWER TO ORDER PAYMENT
OF TRAVEL AND PER DIEM EXPENSES. /3/ THUS, IT ARGUES THAT THE AUTHORITY
EXCEEDED ITS POWER BY THE POSITION IT ESTABLISHED IN INTERPRETATION AND
GUIDANCE, SUPRA. IN ADDITION, IT CONTENDS THAT IT CANNOT BE REQUIRED TO
MAKE ANY PAYMENT OUT OF APPROPRIATED FUNDS ABSENT A STATUTORY BASIS FOR
SUCH A PAYMENT.

CONTRACT NEGOTIATION SESSIONS BETWEEN THE PARTIES HEREIN WERE
CONDUCTED ON NOVEMBER 5 AND 6, 1979, AND APRIL 14, 1980. EMPLOYEES FRED
YOUNG, JOHN HERNON, JERRY BRENNAN, CHARLES MCNAB AND RICHARD PAUZE
REPRESENTED THE UNION AT THE NOVEMBER 5 AND 6, 1979, MEETINGS WITH FIVE
MANAGEMENT REPRESENTATIVES. NO REQUESTS FOR PAYMENT OF TRAVEL OR PER
DIEM EXPENSES WERE MADE. EMPLOYEES YOUNG AND HERNON REPRESENTED THE
UNION AT THE APRIL 14, 1980, NEGOTIATING SESSION. SPECIFIC REQUESTS FOR
TRAVEL AND PER DIEM EXPENSES WERE MADE BY YOUNG AND HERNON AND DENIED BY
THE RESPONDENT.

THE AUTHORITY HAS CONSIDERED THE RESPONDENT'S ARGUMENTS THAT THE
PRECEDENT, NOTE 1, SUPRA, BE REVERSED. AS THE RESPONDENT HAS MADE NO
ARGUMENTS WHICH WERE NOT PREVIOUSLY CONSIDERED, AND NO NEW BASIS HAS
BEEN ADVANCED TO PERSUADE THE AUTHORITY TO REVERSE THOSE CASES, THE
RESPONDENT'S POSITION IS REJECTED.

THE AUTHORITY DETERMINED IN INTERPRETATION AND GUIDANCE, SUPRA, AND
SUBSEQUENT CASES (NOTE 1, SUPRA), BASED UPON AN ANALYSIS OF THE STATUTE
AND THE LEGISLATIVE HISTORY OF SECTION 7131, THAT ANY EMPLOYEE WHO IS ON
OFFICIAL TIME UNDER SECTION 7131 WHILE REPRESENTING AN EXCLUSIVE
REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT
IS ENTITLED TO PAYMENT FROM AGENCIES FOR TRAVEL AND PER DIEM EXPENSES.
/4/ THEREFORE, THE AUTHORITY CONCLUDES THAT THE RESPONDENT VIOLATED
SECTION 7116(A)(1) AND (8) WHEN IT REFUSED TO AUTHORIZE PAYMENT OF
REQUESTED TRAVEL AND PER DIEM EXPENSES TO EMPLOYEES YOUNG AND HERNON
WHILE THEY WERE ON OFFICIAL TIME, ON APRIL 14, 1980, REPRESENTING THE
UNION IN THE NEGOTIATION OF THE COLLECTIVE BARGAINING AGREEMENT.
ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE VIOLATIVE CONDUCT BE
REMEDIED BY REQUIRING PAYMENT OF PROPERLY DOCUMENTED TRAVEL AND PER DIEM
EXPENSES TO THE ABOVE-NOTED MEMBERS OF THE UNION'S NEGOTIATING TEAM AND
TO ANY OTHER EMPLOYEE WHO SUBMITS A PROPERLY DOCUMENTED VOUCHER FOR
PAYMENT OF TRAVEL AND PER DIEM EXPENSES RELATED TO PARTICIPATION ON
OFFICIAL TIME AS THE DESIGNATED UNION REPRESENTATIVE IN CONTRACT
NEGOTIATIONS SUBSEQUENT TO APRIL 14, 1980.

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 DIVISION OF MILITARY AND NAVAL AFFAIRS,
STATE OF NEW YORK, (ALBANY, NEW YORK) SHALL:

1. CEASE AND DESIST FROM:

(A) FAILING AND REFUSING TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
TRAVEL AND PER DIEM EXPENSES INCURRED BY FRED YOUNG, JOHN HERNON, OR ANY
OTHER EMPLOYEE, AS A RESULT OF THEIR PARTICIPATION ON OFFICIAL TIME
UNDER SECTION 7131(A) OF THE STATUTE AS DULY DESIGNATED REPRESENTATIVES
OF THE NEW YORK STATE COUNCIL OF ASSOCIATION OF CIVILIAN TECHNICIANS,
INC., THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED CONTRACT
NEGOTIATION SESSIONS.

(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) PROVIDE PAYMENT TO EMPLOYEES FRED YOUNG AND JOHN HERNON BASED
UPON THEIR PREVIOUSLY SUBMITTED VOUCHERS FOR THEIR TRAVEL AND PER DIEM
EXPENSES INCURRED AS THE RESULT OF THEIR PARTICIPATION ON OFFICIAL TIME
UNDER SECTION 7131(A) OF THE STATUTE AS THE DULY DESIGNATED
REPRESENTATIVES OF THE NEW YORK STATE COUNCIL OF ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., FOR THE CONTRACT NEGOTIATION SESSION CONDUCTED APRIL
14, 1980.

(B) PROVIDE PAYMENT TO ANY OTHER EMPLOYEE WHO SUBMITS A PROPERLY
DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS THE
RESULT OF PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
STATUTE IN CONTRACT NEGOTIATIONS, AS A DULY DESIGNATED REPRESENTATIVE OF
THE NEW YORK STATE COUNCIL OF ASSOCIATION OF CIVILIAN TECHNICIANS, INC.

(C) POST AT ITS FACILITIES LOCATED THROUGHOUT THE STATE OF NEW YORK
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 ADJUTANT GENERAL AND SHALL BE POSTED AND MAINTAINED BY HIM
FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE ADJUTANT GENERAL SHALL TAKE REASONABLE STEPS TO
INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.

(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION I, 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., DECEMBER 29, 1981

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 FRED YOUNG, JOHN HERNON, OR ANY
OTHER EMPLOYEE AS A RESULT OF THEIR PARTICIPATION ON OFFICIAL TIME UNDER
SECTION 7131(A) OF THE STATUTE AS DULY DESIGNATED REPRESENTATIVES OF THE
NEW YORK STATE COUNCIL OF ASSOCIATION OF CIVILIAN TECHNICIANS, INC., THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED CONTRACT NEGOTIATIONS.

WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS AS ASSURED BY
THE STATUTE.

WE WILL PROVIDE PAYMENT TO EMPLOYEES FRED YOUNG AND JOHN HERNON,
BASED UPON THEIR PREVIOUSLY SUBMITTED VOUCHERS, FOR THEIR TRAVEL AND PER
DIEM EXPENSES INCURRED AS THE RESULT OF THEIR PARTICIPATION ON OFFICIAL
TIME UNDER SECTION 7131(A) OF THE STATUTE AS THE DULY DESIGNATED
REPRESENTATIVES OF THE NEW YORK STATE COUNCIL OF ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., FOR THE CONTRACT NEGOTIATION SESSION CONDUCTED APRIL
14, 1980.

WE WILL PROVIDE PAYMENT TO ANY OTHER EMPLOYEE WHO SUBMITS A PROPERLY
DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS THE
RESULT OF PARTICIPATION IN CONTRACT NEGOTIATIONS ON OFFICIAL TIME UNDER
SECTION 7131(A) OF THE STATUTE AS A DULY DESIGNATED REPRESENTATIVE OF
THE NEW YORK STATE COUNCIL OF ASSOCIATION OF CIVILIAN TECHNICIANS, INC.

(AGENCY OR ACTIVITY)

DATED:

BY:

(SIGNATURE) (TITLE)

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, FEDERAL LABOR RELATIONS AUTHORITY, REGION I, WHOSE ADDRESS IS:
441 STUART STREET, 9TH FLOOR, BOSTON, MASSACHUSETTS, 02116, AND WHOSE
TELEPHONE NUMBER IS (617) 223-0920.

--------------- FOOTNOTES: ---------------

/1/ THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES AND THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES WERE GRANTED PERMISSION TO
PARTICIPATE IN THIS PROCEEDING AS AMICI CURIAE PURSUANT TO SECTION
2429.9 OF THE AUTHORITY'S RULES AND REGULATIONS.

/2/ INTERPRETATION AND GUIDANCE, 2 FLRA 264(1979). SUBSEQUENTLY, THE
AUTHORITY ISSUED BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN
REGION, DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA
NO. 40(1980), APPEAL DOCKETED, NO. 80-7673 (9TH CIR. NOV. 28, 1980) AND
U.S. DEPARTMENT OF AGRICULTURE, SCIENCE AND EDUCATION ADMINISTRATION,
AGRICULTURAL RESEARCH, NORTH CENTRAL REGION, DAKOTAS-ALASKA AREA, 6 FLRA
NO. 45(1981), APPEAL DOCKETED, NO. 81-1948 (8TH CIR. SEPT. 4, 1981).
SEE ALSO, FLORIDA NATIONAL GUARD, 5 FLRA NO. 49(1981), APPEAL DOCKETED,
NO. 81-5466 (5TH CIR. MAY 18, 1981).

/3/ SECTION 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.

/4/ THE AMICUS CURIAE BRIEFS SUPPORT GENERALLY THE AUTHORITY'S
INTERPRETATION OF THE STATUTE NOTING PARTICULARLY THAT AN EMPLOYEE ON
OFFICIAL TIME IS ON "OFFICIAL BUSINESS," AS REQUIRED FOR THE PAYMENT OF
TRAVEL AND PER DIEM EXPENSES. (BRIEFS OF THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES AND THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
AT 3 AND 9, RESPECTIVELY).